Dismissal due to gross and habitual neglect of duty

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Published — May 25, 2018

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

Related Topic: How to Dismiss an Erring Employee the Right Way

Gross and habitual neglect of duty is among the just causes for termination of employment. Article 297(b) of the Labor Code recognizes the employer’s right not only to reasonably expect that their employees will do their jobs well, but also that such employees are expected to do their jobs in the first place. Employees neglecting their duties may be considered as a mortal sin for any enterprise, and constitutes a legal ground by which employment may be terminated.

When is there gross and habitual neglect of duty

D.O. No. 147-15 issued by the Department of Labor and Employment (“DOLE”), set forth the standards that should be met before gross and habitual neglect of duty may be validly used as just cause for termination, to wit:

1. There must be neglect of duty, and
2. The negligence must be both gross and habitual in character.

As stated, the neglect must be gross, which denotes a flagrant and culpable refusal or unwillingness of a person to perform a duty. It refers to negligence characterized by the 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 [See: G.R. No. 179648].

The law imposes a stringent condition before an employer may terminate an employment due to gross and habitual neglect by the employee of his duties. To sustain a termination of employment based on this provision of law, the negligence must not only be gross but also habitual [See: G.R. No. 180123]. Habitual neglect implies repeated failure to perform one’s duties for a period of time. If only one of the abovementioned standards is present, then legally speaking, there is no valid basis to terminate an employee based on this ground.

Some examples of gross and habitual neglect of duties

A cashier who, on a daily basis, leaves on top of a conspicuous table and in plain view the key to the drawer containing cash collections may be considered as grossly and habitually negligent in performing her duties as custodian of the cash. In such case, said cashier should be held accountable when the huge sums of money being kept in the drawer went missing. Same is true for a bank teller who regularly leaves cash exposed on her counter, all while depositors were milling around, and even though she left her post for short moments only [See: G.R. No. 75955]. The said employees may be dismissed for gross and habitual neglect of duty.

Also, an employee, who has been repeatedly absent without leave and frequently late in reporting to work reflect her indifferent attitude and lack of motivation in her work. Her habitual absenteeism without leave constitutes gross negligence and is sufficient to justify her dismissal [See: G.R. No. 165268].

Abandonment of work as an analogous case

Abandonment of work, though not among those explicitly stated under the Labor Code as a just cause for termination of employment, is nevertheless a valid reason for such termination for being analogous to gross and habitual neglect of duty.

However, in order to validly dismiss an employee due to abandonment of work, it is required that there must be a deliberate, unjustified refusal of the employee to resume his employment. Mere absence or failure to report for work is not

enough to amount to such abandonment. There must be a concurrence of the intention to abandon and some overt acts from which an employee may be deduced as having no more intention to work. The contemplation to discontinue the employment must be shown by clear proof that it was deliberate and unjustified [See: G.R. No. 168931].

Jurisprudence is replete with rulings that for abandonment of work to exist, it is essential that (1) the employee must have failed to report for work or must have been absent without valid and justifiable reason; and (2) there must have been an indisputable intention to sever the employer-employee relationship manifested by some overt acts, with this second element as the more determinative factor [Ibid].

Due process requirement

Gross and habitual neglect of duty, for being among the just causes of termination of employment, the two-notice rule in dismissing employees must be observed.

• The first written notice, which should contain the specific grounds for termination (loss of trust and confidence), a detailed narration of the facts and circumstances that serves as basis for the charge against the employee, and a directive that the employee is given the opportunity to submit a written explanation within a reasonable period, or 5 calendar days from receipt of the notice to give the employee an opportunity to study the accusation, consult or be represented by a lawyer or union officer, gather data or evidence on his behalf, and decide on his defenses against the complaint.
• As for the second written notice, after determining that termination of employment is justified, the employer shall serve the employee a written notice of termination indicating that all the circumstances involving gross and habitual neglect of duty against the employee have been considered, and that gross and habitual neglect of duty has been established to justify separation from employment.

Dismissal of an employee who had been grossly and habitually neglectful of his duties is not only legally allowed, but is also practical for every enterprise. It is so because the employer’s obligation to give his workers just compensation and treatment carries with it the corollary right to expect from the workers adequate work, diligence and good conduct. [See: G.R. No. 84075]. While it is a State policy to provide full protection to labor, the State nevertheless cannot allow giving such protection at the expense of being oppressive to employers.

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding employment disciplinary procedures, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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