Harsh

Past infractions already penalized cannot once more be used as bases for disciplinary action. This is the rule applied in this case of Mely.

On August 16, 1991, Mely was hired as packaging clerk of an optical company (ACO) with the main task of receiving, recording, sorting out its products and supplies. Less than a month on the job or on September 7, 1991, while still on probation, she already received a memo for her tardiness for 1 hour and 34 minutes with a warning that habitual absences and tardiness are grave violations of company policy. Nevertheless on March 1, 1992 she was regularized after six months probation.

But on October 15, 1992, although she has not incurred any tardiness, she received another memo again this time merely warning her that tardiness being a grave violation of company policy. Since then, no memo came until about two years later or on April 22, 1994 when she was slapped a three-day suspension from work for being tardy 26 times within January to March 1994. ACO personnel department informed her that her tardiness exceeded the maximum allowable limit per month of only four times. The fourth memo came on February 28, 1995 when she was meted another suspension of seven days for 21 counts of tardiness up to December, 1994.

On May 25, 1995, Mely filed an application for indefinite leave of absence because of lack of baby-sitter to take care of her baby. This was denied by ACO which gave her only up to June 1, 1995 to go back to work. Then on August 29, 1995, Mely was again suspended for 13 days for her failure to meet the company policy on tardiness.

In the year 1996, Mely did not report for work on  Nov. 12 allegedly due to the demolition of their family home. Then on December 2, 1996 she was again absent because her child was allegedly hospitalized. Six days later or on December 8, 1996, she finally received a notice of termination on the ground that her chronic absenteeism combined with abusive tardiness is considered as gross and habitual negligence that constitutes a valid ground for dismissal. Was Mely validly dismissed?

No. The absences and incidences of tardiness of Mely are but past infractions for which ACO had already imposed several sanctions and for which she had already been duly penalized. Being past infractions they cannot be taken collectively as a justification for the dismissal from the service of the employee.

But even assuming that the past infractions could still be the subject of future punishment, Mely’s supposed habitual absenteeism and tardiness cannot constitute gross and habitual neglect of duty that warrant removal from service. While Mely’s absences and tardiness may be habitual, it is not gross.

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. Though there may have been times when Mely’s absences were without the necessary approved leave applications, she would send word when these would occur. Moreover, nowhere in the memos sent to Mely is the complaint relating to the quality of her work ever mentioned. Negligence as a just cause of dismissal is therefore not present. At most Mely should have been further suspended from service for taking for granted that her leave would be approved. The penalty of dismissal is too harsh considering that Mely had been with the company for five years and, apparently, the management had no complaint regarding the quality of her work.

Finally, Mely was not accorded due process prior to being dismissed from service. An employer is required to give the employee two written notices before termination of her employment. The first notice must inform her of the particular acts or omissions for which her dismissal is sought; and the second, to inform her of the employer’s decision to dismiss her after she has been given the opportunity to be heard and defend herself. Every opportunity and assistance must be accorded to the employee by the management to enable her to prepare adequately for her defense. With regards to Mely, prior to the notice of her termination, no opportunity was given to her to explain her side on why she should not be dismissed. There was no exchange of communication between ACO and Mely regarding her supposed infractions constituting grounds for dismissal. No chance whatsoever was given to her. She was simply served her termination notice without being heard in her defense (Acebedo Optical et. al. vs. NLRC et. al. G.R. 150171, July 17, 2007).

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