“Dismissal is too harsh a penalty” Constructive dismissal?

Yes because repeated

sexual harassment creates hostile environment
2 types of Dismissal

1. Just Cause -initiated by employee

b. Gambling/Betting- promiscuous effect
2. Authorized Cause – initiated by employer
c. Drug Test – consists of 2 test: a. initial test, b.
Distinguish Just Cause from Authorized Cause
d. Immorality
1. Toyota Doctrine - No separation pay for just
cause dismissal- involves moral character Why immoral? When is a conduct immoral? Not
acceptable by community
-abandoning PLDT ruling
Immorality shall be based not on a purely
*Gwenfield v NLRC
religious morality but on a secular
*Agabon v NLRC- Serrano paved way for abuse morality/public morality
of employer; dismiss no pay later/ belated due
Question:
process
1. Unmarried teachers have sexual intercourse
-Employer failed with due process->
in privacy and have a child out of wed lock?
Nominal damages
Dismissal not proper
*Serrano v NLRC – dismissal is ineffectual;
2. Employees in religious charitable institution,
employee is entitled to backwages
had sexual intercourse, child is born? Dismissal
Serious misconduct – improper wrongful not proper
conduct committed in aggravated manner
*Innocente Case
2. Just Cause dismissal – 2 notice rule; no
3. A teacher having affair with student, both of
separation pay pursuant to Toyota case
legal capacity? Dismissal not proper
Authorized Cause- 2 notice rule-> DOLE and
*Chua Clavio Case
employee with separation pay
4. Sexual Intercourse in company premises?
Yes, dismissal was proper. Sexual Intercourse
a. Sexual Harassment inflamed by either lust or affection should be
done in a manner that should not offend public
2 types: decency.
1. Quid Pro Quo - request of sexual favor
committed by superior officer having moral
ascendency over victim -> economic in nature e. Fighting in company premises

2. Hostile Work Environment – “IHO” -placing  Mere shouting and vexing not
in INTIMDATING HOSTILE considered fighting
OFFICE/ENVIRONMENT because of conduct of  Must be physical
superior officer  Why? Stop work-> No work no pay

Ie. Sexual remark, utterances, physical conduct

of a sexual nature
d. Theft – act of dishonesty; even if theft of
property of co-employee it is analogous to
serious misconduct
caveat by SC- in Theft you have to consider the
value of the property taken if value is
negligible, dismissal is too harsh a penalty.
Other basis for objection:
1. Length of service is overshadowed by gravity
offense-> considering his length of service
2. Principle of Compassion-> ie if he is a
breadwinner
3. First offence rule will not apply depending on
gravity of offense, position and nature of work
o Manager v rank and file
o Nature of business – ie. Educational,
religious wherein morality is given a higher
standard
o Fiduciary relationship – ie. Teller
o Business which requires strict rules – ie. Gas
station no smoking
4. Totality of infractions -infractions committed
by employee can be basis of dismissal
 What if they have already been punished?
It cannot be basis otherwise it is
punishment for same offence, but but it
can still be basis in relation to another
subsequent offence
5. Principle of charity, compassion and
understanding
-applied side by side as a ground with:
Protection of labor; social justice;
compassionate justice
-applied to lowly employee- will affect him
including that of his family, indigent, poor,
impoverished, those who have less in life shall
have more in law
6. Principle of Equity – not provided by law or
rules? Provide equity
-justice outside law; on some equitable
ground, considering employee has been in
service for 23 years dismissal is too harsh of a
penalty
-dismissed for just cause- separation pay; award
financial assurance
7. length of service
8. gravity of offense
Willful disobedience -deliberate, intentional
disobedience of a reasonable rule or regulation
by a company
Question In a motor pool, there was a
regulation that no company driver can take out
a company vehicle without approval of
supervisor, took out car without permission
because supervisor was not there.
First offense not basis but a repeated
commission of same offense will cause dismissal
Gross and Habitual Neglect of Duty
SC- habituality may not be considered since
offense was too gross that it will justify
dismissal
-ung AND-> OR talaga siya
NOTE: The fact that he filed constructive
dismissal will negate abandonment
Abandonment- intention to severe employer
employee relationship shown by overt acts;
employer should observe due process-> 2
notice rule and hearing and conference
1st notice- last known address registered mail
Resignation- voluntary act; personal reasons;
filed in favor of exigency of the service
Reemployment – taken back by employer; c. Prescription of 4 yrs
considered as new employee as there was
d. Overage
already a termination of EE and ER relationship;
restored not necessarily same position and his e. Loss of Business
reemployment is a matter of discussion
*see Manila Chronicle case
Reinstatement- restored to former position
F Physical Disability
Oder from NLRC, CA-immediately executory- no
need for writ of execution g. Mandated by Law

a. actual- restored to former position ie. RA 1822 Migrant workers and overseas
workers- OFW and seaman employed by fixed
b. payroll – reinstated in payroll does not term or contractual basis
perform

What if employer is stubborn?

-Motion for contempt

Constructive dismissal
-monthly salary
-dismissal in disguise
-Labor Arbiter can issue motu-proprio writ of
execution for purpose of reinstatement 1. serious insult

When is reinstatement barred? 2. unbearable treatment of employer

1. fear of reprisal 3. made it hard for employer to perform his

duties and functions
2. fear of death
4. premature repatriation of OFW including a
3. waiver seaman
4. laches – labor as an economicgood is 5. prejudicial inconvenient unreasonable
perishable transfer- _____ doctrine

6. demotion in rank; demunition in pay

May strained relationship be used to bar
reinstatement by employer? NO. except when
there is severe antagonism Willful breach of trust

Remedy: pay separation pay instead of
reinstatement
a. position has been filled up – he should be
reinstated in substantially equivalent position; if
not available pay separation pay as compromise
reinstatement
b. position abolished- legal and physical
impossibility; pay separation pay
Mere breach of trust may justify dismissal
Ie. Teller,accountant- in relation to company’s
money and property
Serious misconduct- theft refers only to
company money and property; stolen money of
co-employee is analogous serious misconduct
Authorized Causes
1. Introduction of Labor Saving Device

*San Miguel Beer Case – install rotating Question ABS CBN because of serious business
machine that doubles production-> decrease in losses closed down radio centers, those
need for labor affected charged against ABS CBN including
payment of separation pay. Is contention of ABS
Automation/replacement of workers by
CBN valid?
machine which results in technological
unemployment Yes. Not total closure but merely partial. A
closure with particular economic activity. It
Requirements:
should be treated as form of retrenchment.
1. 2 separate notice rule
ABS still liable to pay seaparation pay.
2. fair and reasonable criteria- not provided by
law ie. Agreed upon CBA company policy
3. Redundancy
-deficiency in production in management
- there is no duplication of work functions; it is
-LIFO rule
superfluous, it is outcome of
-seniority
Ie. Overhiring of workers, surplus workers,
3. good faith – not resort to constructive some if not all positions will become redundant
dismissal
-lack of raw materials
4. separation pay – 1 month pay or 1 m/year of
-company not losing
service
-full month pay/yr of service

2. Retrenchment – downsize, reduce, delayer

4. Disease
-to prevent losses
-1/2 month pay- other benefits ie. Philhealth
Requirements:
- rests upon employee to prove disease thru
1. 2 notice rule
medical certificate
2. fair and reasonable
- allowed to go LOA
3. good faith
-curable within 6 months if not discharged
4. proof of financial losses

5. separation pay
5. Closure of business

- total closure grounded on economic losses ->

What is contemplated by law on preventive no separation pay
losses? If the company can perceive that sooner
-if by mere prerogative-> separation pay
or later its economy will go down to the drain
the company should do something and not wait
until there are actual losses