• Termination valid if ‘undertime’ results in neglect of duties

    Persida Acosta

    Persida Acosta

    Dear PAO,
    Can a private employee be terminated just because of being late? I asked this because my brother received a couple of memoranda from his employer with the tenor that they are considering to terminate him. He works as a company driver in Dasmariñas, Cavite. Apparently, he had been late and had incurred “undertime” for the past five months of this calendar year alone. Please enlighten me on this matter.                    

    Dear Cristina,
    An employment contract imposes obligations and responsibilities between the employer and the employee, respectively. If one of them fails to comply with what is incumbent upon him, it may give rise to the right of the offended party to terminate the contract.

    On the part of the employers, they are permitted to terminate the contract of employment for causes expressly stated under the employment contract or the company policy, rules and regulations, or for any of the just or authorized causes mentioned under Articles 282, 283 and 284 of Presidential Decree 422, as amended, or the Labor Code of the Philippines.

    Accordingly, if your brother’s employment contract with his employer provides that acquired monthly “late” and “undertime” are a basis for the termination of his employment, then there is a valid cause for his possible termination. It is only necessary, to validly carry out his termination, that your brother was properly apprised of his infractions, that an investigation was properly made and that he was notified of the outcome of such investigation and the decision of the employer to terminate his services.

    On the other hand, if their employment contract is silent on the matter, then we may look into the provisions of the Labor Code. Particularly, Article 282 (b) of the code cites the employee’s gross and habitual neglect of his duties as a just ground for termination. We wish to emphasize that it is not merely the negligence of the employee in the performance of his tasks that entitles the employer to terminate the contract of employment. Rather, such negligence must be characterized by being both gross and habitual.

    According to the Supreme Court, gross negligence implies a want or absence of or failure to exercise even slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them (Acebedo Optical vs. NLRC, G.R. No. 150171, July 17, 2007; Philippine Aeolus Automotive United Corporation vs. National Labor Relations Commission, 387 Phil. 250, 263). In another case, the High Court defined gross negligence as “want of care in the performance of one’s duties,” while habitual neglect as the “repeated failure to perform one’s duties for a period of time, depending upon the circumstances” (Mansion Printing Center vs. Bitara Jr., G.R. No. 168120, January 25, 2012, citing Valiao vs. Court of Appeals, 479 Phi. 459).

    Applying the foregoing in your brother’s situation, we believe that he may be terminated only if his incurred tardiness and “undertime” were frequent or numerous that he, in effect, disregarded his duties or he has failed to diligently perform his tasks as a company driver, and that substantial due process was complied with. If his tardiness, though incurred within a period of five months of this year, were just a few or isolated from each other, then a penalty of warning, reprimand or suspension may be more suitable considering that termination is such a harsh penalty to impose.

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net


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