Just Causes

ART. 297. TERMINATION BY EMPLOYER An employer may terminate an employment for any of the following causes: (a) xxxx (b) xxxx (c) xxxx (d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and (e) Other causes analogous to the following.

JUST CAUSE: COMMISION OF A CRIME OR OFFENSE Another just cause of terminating an employment is the employee’s commission of a crime or offense against the person of his employer or against any immediate member of the employer’s family. The immediate members of the family referred to are limited to spouse, ascendants, descendants, or legitimate, natural, or adopted brothers or sisters of the employer or of his relative by affinity in the same degrees, and those by consanguinity within the fourth civil degree. Conviction or Prosecution Not Required The conviction of an employee in a criminal case is not indispensable to warrant his dismissal by his employer. The fact that a criminal complaint against the employee has been dropped by the city fiscal is not binding and conclusive upon the labor tribunal. An employer may dismiss an employee for breach of trust in the handling of funds in spite of his having been acquitted in the course of criminal prosecution. Conviction for a crime involving the loss of such funds is not necessary before the employee may be dismissed. There is more reason for dismissal where the acts of misconduct and willful breach of trust are repeatedly committed by an employee. An employee who has been exonerated from a criminal charge of theft of gasoline on the basis of technically may still be dismissed from employment if the employer has ample reason to mistrust him. If acquittal from the criminal charge does not negate the existence of a ground for loss of trust and confidence, with more reason should conviction for such criminal charge fortify said mistrust.

ANALOGOUS CAUSES The determination of whether the cause for terminating employment is analogous to any of those enumerated in article 296 of the Code will depend on the circumstances of each case. To be considered analogous to the just causes enumerated, however, a cause must be due to the voluntary and/ or willful act or omission of the employee. In one case, the employer (Violago Trucks) could not continue the employment of four of the complainant employees because Petrophil had prohibited them from entering Petrophil’s premises as they were suspected of illegally diverting gasoline. This is an example of “analogous cause “as a just cause of dismissal. Similarly, the refusal of the employer (Marquez, Inc.) to allow an employee to drive cargo truck due to the van imposed against the employee by San Miguel Corporation to enter CocaCola plant premises who had found the employee guilty of theft of empty coke bottles, is valid. Theft committed by an employee against another employee (not against the employee) is not work-related, hence, not serious misconduct under Article 296(a). but it maybe considered an “Analogous cause” under the same Article. A cause analogous to serious misconduct is a voluntary and/ or willful act or omission attesting to an employee’s moral depravity. The theft if proven by substantial evidence, is analogous to serious misconduct. Must the Analogous Causes be Anticipated in Company Regulation? D.O. No. 147-15 (September 7, 2015) amends the implementing rules and regulation of book VI. We take particular note of the last sentence in Section 5.2(g). It states: No act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulation or policies. Is this a just and valid administrative rule? Can anyone figure out in advance all against all analogous cases and write them down in company regulations? Agpalo’s Statutory Constructive (p.42) reminds us, citing court rulings, the administrative rules (such as the department order) are meant “for the sole purpose of carrying into effect the general provision of law.” Nowhere does the Labor Code require analogous acts or omissions to be “expressly specified in company regulation or policies.” Administrative regulations, jurisprudence says, cannot extend or restrict the statute it implements. Moreover, the requirement appears unreasonable, if not impossible. By requiring written (express) specification in company policies, D.O. No. 147-15 negated the character of “analogous” causes and the reason the law is so couched. Something analogous is similar or comparable to the original or the standard. To demand an express specification of all analogous causes is to demand anticipation of all things similar. But these cannot all be preconceived or predefined. Yet, that is what the IRR wants: to put in writing all incidents or causes that are

analogous to those mentioned in Article 297. It demands some extraordinary imaginative prowess – something the law does not require because it borders on the impossible.