Substantial proof needed prior to administrative sanction

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Persida Acosta

Persida Acosta

Dear PAO,

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Can an administrative case based on immorality be charged against two employees—married male employee does routine activities with female employee, like having breakfast, lunch and coffee together in their office? They also buy their groceries together and even live in the same compound. I also found out that they were officemates in their former company.

Mamsky

Dear Mamsky,

The commission of an immoral conduct is one of the offenses under the Revised Rules on Administrative Cases in the Civil Service (RRACCS) against an employee in the government service. This offense is classified into grave and light. Under Section 46, Rule 10 of RRACCS, disgraceful or immoral conduct is classified as a grave offense punishable by suspension of six (6) months and one (1) day to one (1) year for the first offense and dismissal from the service for the second offense if it was done during the government service. However, if the disgraceful or immoral conduct was done prior to entering in government service, the offense shall only be considered a light offense which is punishable by reprimand for the first offense; suspension of one (1) to thirty (30) days for the second offense; and dismissal from the service for the third offense.

On the other hand, the dismissal of an employee in private sector should be for any of the causes mentioned under Article 282 of the Labor Code in order to be valid. Although immorality is not one of those expressly mentioned therein, the same may be a cause for valid dismissal being considered as serious misconduct. The Supreme Court stressed that to constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in the light of the prevailing norms and conduct and applicable laws. It likewise stated that having an extra-marital affair is an affront to the sanctity of marriage, which is the basic institution of society. Even our Family Code provides that husband and wife must live together, observe mutual love, respect and fidelity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Our laws, in implementing this constitutional edict on marriage and the family underscore their permanence, inviolability and solidarity (Jose S. Santos, Jr., v. NLRC, et.al. G.R. 115795, March 6, 1998).

Assuming that the employees mentioned in your problem are employed in the private sector, an administrative case can be filed against them, if they are engaged in an extra-marital affair. But the employer should present substantial evidence against the employee before it can impose administrative sanction. In your case, we cannot conclude that the employees mentioned are maintaining an extra-marital affair merely because they do routine activities of having breakfast, lunch and coffee together in their office or even buy their groceries together, especially because there is no proof that they live in the same house. Living in the same compound is insufficient proof that they are living under the same roof.

Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are elaborated therein.

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