APPROPRIATE PENALTY

The cause may be valid and due process may have been followed, but still the dismissal maybe questioned
and eventually nullified if the penalty itself is not appropriate. The fundamental rule is that the penalty must be
commensurate to the offense. Court rulings, no less than management studies, insist on adherence to the
principle of progressive disciplining: light offenses deserve light penalties and only grave offenses deserve
grave penalties. However, diverse factors should be considered, such as the employees long years of otherwise
satisfactory service, the penalty imposed in previous similar offenses, and even the amount of money or value
involved.

Article 282 mentions the causes for which the employer may dismiss an employee. But the penalty does
not always have to be dismissal. Court rulings frown upon dismissals. Not every case of serious misconduct, willful,
disobedience, neglect of duty, or even dishonesty will justify dismissal. Dismissal is the supreme penalty at the
workplace. It should be imposed only as a last recourse.

The Supreme Court in many dismissal cases has echoed and reechoed this thoughtful reminder:

Where a penalty less punitive would suffice; whatever missteps may be committed by labor ought not to be
visited with consequence so severe. It is not only because of the laws concern for workingmen. There is, in addition,
his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner.
The misery and pain attendant on the loss of jobs then could be avoided if there be acceptance of the view that
under all circumstances of a case, the workers should not be deprived of their means of livelihood. Nor is this to
condone what had been done by them. For all this, while, sine the employer considered them separated from the
service, they had not been paid. From the strictly judicial standpoint, it cannot be strongly stressed that where a
decision may be made to rest on informed judgment rather than rigid rules, all the equities of the case must be
accorded their weight. Labor law determinations should not be only secundum rationem but also secundum
caritatem (applying social justice without causing an injustice). (Almira, 58 SCRA 120 {1974}.)

In short, dismissal is a harsh penalty. If at all avoidable, without oppressing the employer, it should
be avoided.

VALUE OF PROPERTY

In determining the appropriate penalty, the value of the property taken is a pertinent factor.

Theft is wrong per se. But must every theft be punished with dismissal? Should the value of the stolen item
be considered in determining the penalty to be imposed? Dishonesty is dishonesty regardless of the amount. This
is a good motto and a motherly teaching worth remembering. But the motto pertains to the character of the act; it
does not say what the penalty should be. The penalty should be appropriate or proportionate to the offense.
Appropriateness of penalty depends on several factors, one of which is the amount involved. Thus, the motto is
ignored by courts in reexamining the penalty imposed. The juridical guideline, rather, is that there are degrees of
dishonesty and degrees of penalty under both the penal and the labor laws.

Gelmart Industries Phils., Inc vs. National Labor Relations Commission, GR No. 85668, August 10,
1989

Facts: Felix started working as an auto-mechanic for Gelmart since 1971. On April 11, 1987, he was caught by
security guards taking out of Gelmarts premises one plastic container filled with about 16 ounces of used motor
oil, without the necessary gate pass as required under Gelmarts rule and regulations. He was placed under the
preventive suspension pending investigation. Under said rules, theft or pilferage of company property merits
outright termination from employment. After investigation, he was found guilty of theft and was dismissed.

Ruling; Be it of big or small commercial value, intended to be reused or altogether disposed of or wasted, the
used motor oil still remains the property of GelmArticle. To take the same out of its premises without the
corresponding gate pass is a violation of the company rule on theft or pilferage of company property.
 However, where a penalty fees punitive would suffice, whatever missteps may be committed by labor ought
not to be visited with a consequence so severe as dismissal. The suspension imposed upon Felix is a sufficient
penalty for the misdemeanor committed. Considering that Felix has no previous derogatory record in his fifteen (15)
years of service with Gelmart, {and considering that} the value of the property pilfered (16 ounces of used motor
oil) is very minimal, plus the fact that Gelmart failed to reasonably establish that nondismissal of felix would work
undue influence prejudice to the validity of their operation or is patently inimical to the companys interest, it is
more in consonance with the policy of the State, as embodied in the Constitution, to resolve all doubts in favor of
labor.

PAST OFFENSES

May past offenses of an employee be tacked on to the latest offense to justify penalty of dismissal?

The correct rule has always been that such previous offenses may be so used as valid justification for
dismissal from work only if the infractions are related to the subsequent offense upon which basis the termination of
employment is decreed. The previous infraction, in other words, may be used if it has a bearing to the proximate
offense warranting dismissal.

ADDITIONAL JURISPRUDENCE

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.

Eric Alvarez, substituted by Elizabeth Alvarez-Casajeros vs Golden Tri Bloc, Inc, and Enrique Lee, GR no.
202158, September 25, 2013

Facts: Petitioner was an Outlet Supervisor and was assigned to 3 Dunkin Donuts outlets located at San Roque,
Cogeo and Super 8, Masinag, all in Antipolo City.

The petitioner reported for duty at around 12:30 in the afternoon at Dunkin Donuts, Super 8, Masinag
branch. Since his timecard was at the San Roque branch, he telephoned ChastineKaye Sambo, shift leader, and
requested her to "punch-in" his time card to reflect that he is already on duty. She obliged. Roland Salindog, the
petitioners senior officer called the Super 8, Masinag branch and verified that he has indeed reported for work.

The following day, however, the petitioner was informed by Sambo that bith of them are suspended and
that he had to prepare an incident report regarding his time card.

In his incident report he owned up to his fault and stated that he should have instead recorded the time of
his arrival by writing on the time card and that he should have brought it with him. He apologized and promised that
a similar incident will not happen again. After the dialogue, petitioner was placed on preventive suspension for 30
days without pay and thereafter terminated his employment on the ground of loss of trust

Ruling: The punching of time card is undoubtedly work related. It signifies and records the commencement of ones
work for the day. It is from that moment that an employee dons the cape of duties and responsibilities attached to his
position in the workplace. It is the reckoning point of the employers corresponding obligation to him to pay his
salary and provide his occupational and welfare protection or benefits. Any form of dishonesty with respect to time
cards is thus no trivial matter especially when it is carried out by a supervisory employee like the petitioner.

The transgression imputed to the petitioner was likewise attended with willfulness. It must be noted that the
petitioner misled the labor tribunals in claiming that during his entire 12-year stint with GTBI, he was never meted
with any disciplinary action. Records, however, disprove such claim. Additional evidence were submitted by GTBI
before the NLRC on appeal and as correctly ruled by the CA, the same may be allowed as the rules of evidence
prevailing in courts of law or equity are not controlling in labor proceedings. Mcdonalds (Katipunan Branch) v.
Alba, G.R. No.156382, December 18, 2008.
 In Merin v. MRC, G.R. No. 171790, October 17, 2008,the Court rules that in determining the sanction
imposable to an employee, the employer may consider and weight his other past infractions, thus.

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 offenses
committed by petitioner 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 petitioner was penalized for his previous infractions, this does not and
should not mean that his employment record would be wiped clean of his 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 petitioner, he continued to commit misconduct and exhibit
undesirable behavior onboard. Indeed, the employer cannot be compelled to retain a misbehaving employee, or one
who is guilty of acts inimical to its interests. It has the right to dismiss such an employee if only as a measure of self-
protection

IT IS A WELL ESTABLISHED RULE THAT THE NATURE OR EXTENT OF THE PENALTY IMPOSED
ON AN ERRING EMPLOYEE MUST BE COMMENSURATE TO THE GRAVITY OF THE OFFENSE AS
WEIGHED AGAINST THE DEGREE OF RESPONSIBILITY AND TRUST EXPECTED OF THE
EMPLOYEES POSITION.

P.J. Lhuillier, Inc. and Mario Ramon Ludena vs. Flordeliz Velayo, GR No. 198620, November 12, 2014

Facts: Complainant Flordeliz Velayo filed a Labor Complaint for illegal dismissal, among others, against her
employer defendant P.J. Lhuillier, Inc. Previously, complainant was hired as Accounting Clerk. Sometime after, she
was served with a Show Cause Memo ordering her to explain her side against the charges wherein an overage
amount of P540.00 was not reported immediately by her to the supervisor nor was it recorded at the end of that day.
She sent a written reply admitting her inability to report the overage as her supervisor was on leave and she was still
tracing the overage, and said that it was a simple mistake without intent to defraud the company. After the
investigation, the company dismissed her on grounds of serious misconduct and breach of trust.

Held: The complaint was dismissed. It is a well established rule that the nature or extent of the penalty
imposed on an erring employee must be commensurate to the gravity of the offense as weighed against the
degree of responsibility and trust expected of the employees position. On the other hand, the respondent is not
just charged with a misdeed, but with loss of trust and confidence under Article 282(c) of the Labor Code, a cause
premised on the fact that the employee holds a position whose functions may only be performed by someone who
enjoys the trust and confidence of management. Needless to say, such an employee bears a greater burden of
trustworthiness than ordinary workers, and the betrayal of the trust reposed is the essence of the loss of trust and
confidence which is a ground for the employees dismissal.

PJLI is not limited to its pawnshop operations. PJLI also offers its Pera Padala cash remittance service
whereby, for a fee or sending charge, a customer may remit money to a consignee through its network of
pawnshop branches all over the country. On October 29, 2007, a customer sent 500.00 through its branch in
Capistrano, Cagayan de Oro City, and paid a remittance fee of 40.00. Inexplicably, however, no corresponding entry
was made to recognize the cash receipt of 540.00 in the computerized accounting system (operating system) of the
PJLI. The respondent claimed that she tried very hard but could not trace the source of her unexplained cash surplus
of 540.00, but a branch audit conducted sometime in December 2007 showed that it came from a Pera Padala
customer.

While there is no significant financial injury was sustained by PJLI in the loss of a mere P540.00 in cash, it
should be pointed out that she held a position of utmost trust and confidence in the company.

There are certain position in the company that enjoy trust. There are two classes of corporate positions
of trust: on the one hand are the managerial employees whose primary duty consists of the management
of the establishment in which they are employed or of a department or a subdivision thereof, and other
officers or members of the managerial staff; on the other hand are the fiduciary rank-and-file employees,
 such as cashiers, auditors, property custodians, or those who, in the normal exercise of their functions,
regularly handle significant amounts of money or property. These employees, though rank-and-file, are routinely
charged with the care and custody of the employers money or property, and are thus classified as occupying
positions of trust and confidence.

These are the requirements to be complied in order that an employer may invoke loss of trust and
confidence in terminating an employee under Article 282(c) of the Labor Code: (1) the employee must be holding a
position of trust and confidence; and (2) there must be an act that would justify the loss of trust and confidence.
While loss of trust and confidence should be genuine, it does not require proof beyond reasonable doubt, it being
sufficient that there is some basis to believe that the employee concerned is responsible for the misconduct and that
the nature of the employees participation therein rendered him unworthy of trust and confidence demanded by his
position.

Here, the employer was fully justified in claiming loss of trust and confidence in the employee. While it is
natural and understandable that the respondent should feel apprehensive about Tulings reaction concerning her cash
overage, considering that it was their first time to be working together in the same branch, we must keep in mind
that the unaccounted cash can only be imputed to the respondents own negligence in failing to keep track of the
transaction from which the money came. A subsequent branch audit revealed that it came from a Pera Padala
remittance, implying that although the amount had been duly remitted to the consignee, the sending branch failed to
record the payment received from the consigning customer. For days following the overage, the respondent tried but
failed to reconcile her records, and for this inept handling of a Pera Padala remittance, she already deserved to be
sanctioned.

Under the Article 282 of the Labor Code, an employer is allowed to dismiss an employee for willful
breach of trust or loss of confidence. It has been held that a special and unique employment relationship
exists between a corporation and its cashier. Truly, more than most key positions, that of a cashier calls for utmost
trust and confidence, and it is the breach of this trust that results in an employers loss of confidence in the
employee.

In dismissing a cashier on the ground of loss of confidence, it is sufficient that there is some basis for the
same or that the employer has a reasonable ground to believe that the employee is responsible for the misconduct,
thus making him unworthy of the trust and confidence reposed in him. Therefore, if there is sufficient evidence to
show that the employer has ample reason to distrust the employee, the labor tribunal cannot justly deny the employer
the authority to dismiss him. Indeed, employers are allowed wider latitude in dismissing an employee for loss of
trust and confidence it must also be stressed that only substantial evidence is required in order to support a finding
that an employers trust and confidence accorded to its employee had been breached.

Citing Lopez v. Alturas Group of Companies (G.R. No. 191008, 11 April 2011), the loss of trust and
confidence must be based on willful breach of the trust reposed in the employee by his employer. Such breach is
willful if it is done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act
done carelessly, thoughtlessly, heedlessly or inadvertently. Moreover, it must be based on substantial evidence and
not on the employers whims or caprices or suspicions otherwise, the employee would eternally remain at the mercy
of the employer. Loss of confidence must not be indiscriminately used as a shield by the employer against a claim
that the dismissal of an employee was arbitrary. And, in order to constitute a just cause for dismissal, the act
complained of must be work-related and shows that the employee concerned is unfit to continue working for the
employer. In addition, loss of confidence as a just cause for termination of employment is premised on the fact that
the employee concerned holds a position of responsibility, trust and confidence or that the employee concerned is
entrusted with confidence with respect to delicate matters, such as the handling or care and protection of the
property and assets of the employer. The betrayal of this trust is the essence of the offense for which an employee is
penalized.

Lastly, misappropriation of company funds, notwithstanding that the shortage has been restituted, is a
valid ground to terminate the services of an employee for loss of trust and confidence. It should be pointed out that
it is immaterial what the respondents intent was concerning the missing fund, for the undisputed fact is that cash
which she held in trust for the company was missing in her custody. At the very least, she was negligent and failed
to meet the degree of care and fidelity demanded of her as cashier. Her excuses and failure to give a satisfactory
explanation for the missing cash only gave the petitioners sufficient reason to lose confidence in her.
PETITIONERS RECORD OF OFFENSES OF THE SAME NATURE AS HIS PRESENT INFRACTION
JUSTIFIES HIS DISMISSAL.

Jerry Mapili vs Philippine Rabbit Bus Line, Inc./ Natividad Nisce, GR No. 172506, July 27, 2011

Facts: Philippine Rabbit Bus Lines, Inc. (company) is headed by President Natividad P. Nisce (Nisce). On April 7,
1993 the company hired Jerry Mapili (Mapili) as a bus conductor. While on duty on October 7, 2001, Nisce was
caught by a company field inspector giving a free ride to the wife of a co-employee. Mapili was preventively
suspended on October 9 and ordered to appear in an administrative investigation, where he was allowed to explain
his actions. The incident was the third time Mapili had been caught extending free rides to passengers in violation of
company rules. Mapili was terminated from employment on November 9.

Mapili filed a case with the NLRC alleging that the company had illegally dismissed him.

The Labor Arbiter held that Mapili had no intention to defraud the company and that his dismissal was
illegal. The NLRC later reversed the ruling of the LA, and found that Mapili had been dismissed for cause as his
non-issuance of a ticket to the lady passenger was deliberate and intentional. On appeal, the CA affirmed the
decision of the NLRC.

Rulings: Petitioners record of offenses of the same nature as his present infraction justifies his dismissal.

Petitioners past infractions can be gleaned from his employment record of offenses which was presented by
the respondents. This piece of evidence was not disputed by petitioner. Hence, petitioner cannot claim that the finding
of his past company infractions was based merely on allegations.

As petitioners employment record shows, this is not the first time that petitioner refused to collect fares from
passengers. In fact, this is already the third instance that he failed to collect fares from the riding public. Although
petitioner already suffered the corresponding penalties for his past misconduct, those infractions are still relevant and
may be considered in assessing his liability for his present infraction. We thus held in Philippine Rabbit Bus Lines, Inc.
v. National Labor Relations Commission that:

Nor can it be plausibly argued that because the offenses were already given the appropriate sanctions, they
cannot be taken against him. They are relevant in assessing private respondents liability for the present violation for
the purpose of determining the appropriate penalty. To sustain private respondents argument that the past violation
should not be considered is to disregard the warnings previously issued to him. 1avvphi1

As suspension may not anymore suffice as penalty for the violation done as shown by petitioners
disregard of previous warnings and propensity to commit the same infraction over the years of his
employment, and to deter other employees who may be wont to violate the same company policy,
petitioners termination from employment is only proper.

PENALTY TO ERRING EMPLOYEE MUST BE COMMENSURATE TO INFRACTION

Julito Sagales vs. Rustans Commercial Corporation, GR No. 166554, November 27, 2008

Facts: In October 1970, Julito Sagales was employed by Rustans Commercial Corporation as chief cook in one of
Rustans restaurants. He was an excellent employee receiving numerous awards. However, in June 2001, Sagales
was caught stealing a bag of squid heads worth P50.00. In the same month, Sagales underwent inquest proceedings
for qualified theft in the local fiscals office. In the said proceeding, Sagales was able to produce the receipt for the
said squid heads. He also averred that the squid heads are actually scraps of the restaurant and are not fit to be served
to customers; so if indeed he really wanted to steal and profit, he would have stolen better quality squid heads. The
fiscal dismissed the case against Sagales for lack of evidence.
 But at the end of the same month, the legal division of Rustan conducted its own investigation where
Sagales and his lawyer appeared. The security guards testified against Sagales. The chief cashier also testified that
the squid heads were unpaid. In July 2001, after investigation by Rustan, Sagales was terminated.

Issue: Whether or not Sagaless termination is valid.

Held: The free will of management to conduct its own business affairs to achieve its purpose cannot be denied. The
only condition is that the exercise of management prerogatives should not be done in bad faith or with abuse of
discretion.

In this regard, it is a hornbook doctrine that infractions committed by an employee should merit only
the corresponding penalty demanded by the circumstance. The penalty must be commensurate with the act,
conduct or omission imputed to the employee and must be imposed in connection with the disciplinary
authority of the employer.

In the case at bar, petitioner deserves compassion more than condemnation. At the end of the day, it is
undisputed that: (1) petitioner has worked for respondent for almost thirty-one (31) years; (2) his tireless and faithful
service is attested by the numerous awards he has received from respondent; (3) the incident on June 18, 2001 was
his first offense in his long years of service; (4) the value of the squid heads worth P50.00 is negligible; (5)
respondent practically did not lose anything as the squid heads were considered scrap goods and usually thrown
away in the wastebasket; (6) the ignominy and shame undergone by petitioner in being imprisoned, however
momentary, is punishment in itself; and (7) petitioner was preventively suspended for one month, which is already a
commensurate punishment for the infraction committed. Truly, petitioner has more than paid his due.

We do not condone dishonesty. After all, honesty is the best policy. However, punishment should be
commensurate with the offense committed. The supreme penalty of dismissal is the death penalty to the working
man. Thus, care should be exercised by employers in imposing dismissal to erring employees. The penalty of
dismissal should be availed of as a last resort.

Indeed, the immortal words of Mr. Justice (later Chief Justice) Enrique Fernando ring true then as they do
now: where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not be
visited with a consequence so severe. It is not only because of the laws concern for the workingman. There is, in
addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the
wage-earner.