Gross neglect

One of the grounds for a valid dismissal of an employee is gross negligence. This case of Simon illustrates what "gross negligence" means.

Simon was hired by SPC as a Professional Medical Representative on June 5, 1995. By December 1, 1995 he was already a regular employee assigned in the Bicol Region. His main task was to promote SPC and its products to physicians, hospitals, and paramedics including trade and government outlets in his assigned territory. To facilitate the performance of his duties he was given a motor vehicle under a company car plan where he would be entitled to purchase said car in two years at a price corresponding to ten percent of its market value at the time of the purchase.

Considering that about 90 percent of Simon’s work was in the field, he was required to submit a Daily Coverage report (DCR) every Monday, or at least mail the same to the Field Operations Manager. These DCRs were vital to his job as they are the primary bases upon which SPC could track his accomplishments and work progress. Without the DCR, his employer would have no basis to determine if he was actually performing his assigned tasks or not. Furthermore, to enable SPC to know how many doctors he had visited in a week, he was required to have "call cards" signed by any of the 80 doctors under his coverage to show that he indeed visited them and handed out promotional items.

On two occasions, the Field Operations Manager (FOM) noticed that Simon was late in filing the DCRs. The batch of DCRs up to January 10, 1997 was filed only on March 13, 1997 while another batch was filed only on March 18, 1997. Then Simon also failed to submit DCRs for the period February 10, to April 7, 1997. The FOM also noticed that while numerous doctors were listed in some of the DCRs submitted by Simon, the call cards supposed to have been signed by them remained blank. When asked to explain about the tardiness and discrepancies, he merely replied, "Pagbigyan mo na lang ako boss. Tulungan mo na lang ako".

But on April 8, 1997 his boss went to his residence and confiscated all the paraphernalia used in his fieldwork including the call cards and the medicine samples. His assigned car was likewise confiscated. The following day, Simon applied for a three-day sick leave allegedly because of diarrhea but after the lapse of his leave, he failed to report for work. Apparently on April 15, he had already filed a complaint for illegal dismissal with the NLRC against SPC, its President, Division Manager and FOM. He alleged that he was effectively dismissed on April 8, 1997 when his paraphernalia and car was taken from him thereby depriving him of the means to perform his job.

Since SPC received the summons only on April 17, 1997, it still sent a telegram on April 16, 1997 instructing him to report to the office on April 18, 1997. Simon however failed to comply. Thereafter, SPC still went through the motions of notifying him of his violations and preventively suspending him. And on May 8, 1997 while his case for illegal dismissal was already pending resolution, SPC sent him another letter terminating his services as of May 6, 1997. The Labor Arbiter found that Simon was illegally dismissed as there was no valid ground for terminating his services. But the NLRC partially modified this decision. It said that Simon was dismissed on valid grounds of gross negligence but he was not afforded due process because he was effectively dismissed on April 8, 1997 when he was deprived of his car and paraphernalia. Was the NLRC correct?

Yes. Gross negligence under Article 282 of the Labor Code, as amended, connotes want of care in the performance of one’s duties, while habitual neglect implies repeated failure to perform one’s duties for a period of time depending upon the circumstances. Clearly, Simon’s repeated failure to submit the DCRs on time, as well as his failure to submit the doctors’ call cards constitute habitual neglect of duties. Needless to state, Simon’s lack of care and repeated failure to comply with his duties clearly indicate that the employer SPC had a just cause for terminating his services.

But since he was dismissed effectively on April 8, 1997 without according him his statutory right to two-notice before dismissal, he is entitled to indemnity by way of nominal damages in the sum of P30,000 pursuant to the recent case of Agabon vs. NLRC 442 SCRA 573 (Chua vs. NLRC, G.R. 146780, March 11, 2005. 453 SCRA 244).

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