I Didn’t Report for Work Because You Failed to Answer My Query

In 2002, respondent company GRRI hired Neren as a part-time employee in its resort, LLB Resort and Spa. She became a regular employee on 1 February 2003, and was eventually promoted as head of the Housekeeping Department in 2005 and as head of the Front Desk Department in 2008.

Sometime in 2013, Neren was charged with and found guilty of violating company policies, i.e., abuse of authority, when she rejected walk-in guests without management approval, and threat to person in authority, when she threatened the assistant resort manager with physical harm. Neren was meted the penalty of seven days suspension without pay, subject to the agreement that Neren would be under strict performance monitoring and that any further violation which would warrant suspension would be elevated to immediate dismissal. After serving her suspension, Neren resumed her task.

In March 2014, GRRI implemented a reorganization in LLB Resort and Spa and issued a Notice to Transfer to Neren. Through the Notice to Transfer, she was informed of the reorganization within LLB Resort and Spa and was advised that she would be laterally transferred from the Reception Department to the Storage Department without diminution in rank and benefits.

However, Neren refused to sign the Notice to Transfer and remained at the reception area for two days before reporting to her new station on 4 March 2014. Neren also sent an e-mail addressed to GRRI on 9 March 2014 asking questions regarding her transfer.

On 10 March 2014, a Memorandum was issued to Neren directing her to explain within 24 hours from notice why she should not be penalized for insubordination for her repeated failure to sign the Notice to Transfer. In her handwritten letter dated 11 March 2014, Neren explained that she refused to sign the Notice to Transfer pending answers to the questions she sent to GRRI via e-mail.

GRRI also issued Neren a Notice of Preventive Suspension on 14 March 2014 placing her under preventive suspension until 21 March 2014 pending resolution of the charge against her.

Neren, however, failed to report back to work after the lapse of the period of her preventive suspension on 22 March 2014 until 26 March 2014. Thus, on 26 March 2014, GRRI’s Human Resource (HR) department issued Neren another Memorandum directing her to report to the HR department within 24 hours and to explain her absences without leave.

Upon reporting thereat, Neren was handed a Termination Notice dated 21 March 2014 advising her that GRRI found her guilty of:

• “inhuman and unbearable treatment to person in authority; abuse of authority; serious misconduct — insubordination by not accepting her memorandum of re-assignment by the Executive Committee; and
• gross and habitual neglect of duties — AWOL”

Can Neren’s employment be terminated on the ground of insubordination for her failure to sign the Notice to Transfer?

No.

In an illegal dismissal case, the onus probandi rests on the employer to prove that the employee’s dismissal was for a valid cause. A valid dismissal requires compliance with both substantive and procedural due process — that is, the dismissal must be for any of the just or authorized causes enumerated in Article 297 ¹Formerly Article 282. and Article 298 ²Formerly Article 283., respectively, of the Labor Code of the Philippines, and only after notice and hearing³Under paragraph (b) of Article 292 (formerly Article 277) of the Labor Code of the Philippines..

Insubordination or willful disobedience requires the concurrence of the following requisites: (1) the employee’s assailed conduct must have been willful or intentional, the willfulness being characterized by a “wrongful and perverse attitude”; and (2) the order violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge.⁴Gold City Integrated Port Services v. National Labor Relations Commission, G.R. No. 86000, September 21, 1990, 267 PHIL 863-875.

The Supreme Court ruled that both requirements were not present in this case.

The Court found that as stated by Neren in her handwritten explanation, she withheld her signature on the Notice to Transfer because she was awaiting answers to the questions she raised to GRRI via e-mail. She could not be forced to affix her signature thereon if she did not really fully understand the reasons behind and the consequences of her transfer. While her action was willful and intentional, it was nonetheless far from being “wrongful and perverse.” The Court added, respondents failed to prove that there was indeed an order or company procedure requiring a transferee’s written conformity prior to the implementation of the transfer, and that such order or procedure was made known to Neren.

Given the foregoing, there was no basis to dismiss Neren on the ground of insubordination for her mere failure to sign the Notice to Transfer.

Was there cause to terminate Neren’s employment on the ground of gross and habitual neglect for her absences without leave from 22 to 26 March 2014?

No, because the Court found that Neren’s four-day absence without leave could not be characterized as gross and habitual neglect of her duties.

Jurisprudence⁵National Bookstore, Inc. v. Court of Appeals, G.R. No. 146741, February 27, 2002, 428 PHIL 235-249 and Cavite Apparel, Inc. v. Marquez, G.R. No. 172044, February 6, 2013, 703 PHIL 46-58. provides that in order to constitute a valid cause for dismissal, the neglect of duties must be both gross and habitual. Gross negligence has been defined as “the want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them.” On the other hand, habitual neglect “imparts repeated failure to perform one’s duties for a period of time, depending on the circumstances.” A single or isolated act of negligence does not constitute a just cause for the dismissal of the employee.

Since the above-mentioned grounds failed to justify Neren’s dismissal from employment, should such dismissal be declared illegal?

No, because the Court, nonetheless, found that Neren’s absences from 22 to 26 March 2014 were still without justification. Therefore, while there may be no basis to dismiss her on the grounds of insubordination and gross and habitual neglect, Neren was still guilty of having committed a violation. For the Court, the principle on totality of infractions may thus be considered in determining the imposable sanction for her current infraction.

Under jurisprudence⁶Merin v. National Labor Relations Commission, G.R. No. 171790, October 17, 2008, 590 PHIL 596-604., the totality of infractions or the number of violations committed during the period of employment shall be considered in determining the penalty to be imposed upon an erring employee.

The Court said that the offenses committed by Neren should not be taken singly and separately. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct and ability separate and independent of each other. While it may be true that Neren was penalized for his previous infractions, this did not and should not mean that her employment record would be wiped clean of her infractions. After all, the record of an employee is a relevant consideration in determining the penalty that should be meted out since an employee’s past misconduct and present behavior must be taken together in determining the proper imposable penalty. Despite the sanctions imposed upon Neren, she continued to commit misconduct and exhibit undesirable behavior on board. Indeed, the employer could not be compelled to retain a misbehaving employee, or one who was guilty of acts inimical to its interests. It had the right to dismiss such an employee if only as a measure of self-protection.

In the present case, Neren alleged that she did not report back to work after serving her preventive suspension because GRRI did not reply to her query as to when she needed to report. However, the Court ruled that this reasoning did not justify her absences. The Notice of Preventive Suspension served on her clearly stated that the period of her preventive suspension was from 14 to 21 March 2014. Thus, she was expected to report back to work on her next working day. The Court noted that GRRI had already previously warned Neren that the penalty for her next infraction would be elevated to dismissal. For the Court, the dismissal of Neren, on the basis of the principle of totality of infractions, was justified.

What consequence does this new finding have insofar as procedural due process is concerned?

The Court ruled that Neren’s dismissal could be said to suffer from procedural lapses.

Jurisprudence⁷King of Kings Transport, Inc. v. Mamac, G.R. No. 166208, June 29, 2007, 553 PHIL 108-119. has delineated the requirements of procedural due process for termination of employment, viz.:

(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. [297] is being charged against the employees.

In the present case, GRRI failed to observe the foregoing requirements, as follows:

• While the Termination Notice cited four grounds for Neren’s dismissal, the Memorandum dated 10 March 2014 only charged Neren with insubordination for her refusal to sign the Notice to Transfer.
• Neren was only given 24 hours to submit an explanation.
• No administrative hearing was held, or even scheduled.
• The Termination Notice already cited Neren’s absences without leave as ground for her dismissal even before she was even given any opportunity to be heard.

The Court ruled that Neren should be awarded nominal damages.

Further reading:

• Villanueva v. Ganco Resort and Recreation, Inc., G.R. No. 227175, January 8, 2020.