Moonlighting

Unless overcome by clear and convincing evidence, it is presumed "that "the ordinary course of business has been followed" and "that things happened according to the ordinary course of nature and the ordinary habits of life" (Section 3 Rule 131 Rules of Court, Evidence) This is illustrated in this case of Berto.

Berto started working as collector in a telecommunications company (CWI) on September 16, 1987. His duties required him to work outside of the office so the company assigned to him a motorcycle as service vehicle for which it shouldered expenses for gasoline and maintenance.

Unknown to CWI however, since 1992, Berto also started working and had been concurrently employed with a local manpower company (CCI) that assigned him to render messengerial services to a bank. So when the Human Resources Director of CWI finally discovered and saw Berto, to his surprise, at the head office of the bank at about 3:35 p.m. of May, 9, 2000, he recommended the immediate termination of Berto’s services for grave misconduct and willful breach of trust and confidence.

After due notice and hearing wherein Berto admitted his employment with CCI which even submitted a certification to that effect stating that Berto had been assigned to the bank since December 8, 1992 and the cash voucher and pay slip from CCI proving his employment therein, CWI decided to terminate the services of Berto on May 22, 2000.

On August 4, 2000, Berto filed a complaint for illegal dismissal against CWI and its president. He contended that his job at CCI did not interfere with his job at CWI since he performed his tasks at the bank only after office hours. To bolster his argument he further asserted that his performance at CWI was always satisfactory and never went below average. So, Berto claimed that there was no just cause for his dismissal. Was Berto correct?

No. It is of general knowledge that the banking industry follows the ordinary working hours of 8 a.m. to 5 p.m. Accordingly an employee of a bank is expected to work from eight in the morning to five in the afternoon. And since the banking industry deals with businesses which observe the same working hours, a bank has no use for an employee who can only be of service to it after 5 o’clock in the afternoon.

Since it is presumed, until contradicted that, "the ordinary course of business has been followed" and "things happened according to the ordinary course of nature and ordinary habits of life" it logically follows that Berto performed his duties with the bank from 8 a.m. to 5 p.m. This presumption can be overcome only by clear and preponderant evidence. However, Berto failed to present any proof to contradict the same, hence, the presumption stands against him. Undeniably his work schedule with the bank conflicts with his work schedule with CWI.

The unauthorized use of company time and company vehicle is a valid ground for dismissal. An employee cannot serve himself and his employer at the same time all at the expense of the latter. It would be unfair to compensate Bert who does not devote his time and effort to his employer (Capitol Wireless, Inc. vs. Balagot G.R. 169016, January 31, 2007).

* * *

E-mail at: [email protected] or [email protected]