C. Illegal Dismissal

Rule on Proportionality

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. (Holcim Philippines, Inc. v. Obra G.R. No. 220998, 08 Aug. 2016.)

In Sagales v. Rustan's Commercial Corporation (G.R. NO. 166554, 27 Nov. 2008), the dismissal of a Chief Cook who tried to take home a pack of squid heads, which were considered as scrap goods and usually thrown away, was found to be excessive. The Supreme Court took into consideration the fact that the Chief Cook had been employed by the company for 31 years already and the incident was his first offense. Besides, the value of the squid heads was a negligible sum of P50.00 and the company practically lost nothing since the squid heads were considered scrap goods and usually thrown away. Moreover, the ignominy he suffered when he was imprisoned over the incident, and his preventive suspension for one (1) month was enough punishment for his infraction.

Q: A, a flight attendant of XYZ Airlines for over 17 years was dismissed for committing serious misconduct by removing company property without authorization, particularly a 1.5L of bottled water and a couple of magazines. Was A illegally dismissed?

A: YES. The company laid down the penalties for violation of its policies. However, the evaluation of an Ee's infraction should be dealt with fairness and reason. Simply put, all surrounding circumstances must be considered, and the penalty must be commensurate to the violation committed by an Ee. Termination of the services of an Ee should be the Er's last resort especially when other disciplinary actions may be imposed, considering the Ee's long years of service in the company, devoting time, effort and invaluable service in line with the Er's goals and mission.

During A’s span of employment of 17 years, she did not commit any infraction or was ever sanctioned except in the incident subject of the present controversy. To impose a penalty as grave as dismissal for a first offense and considering the value of the property allegedly taken would be too harsh under the circumstances. Therefore, A was illegally dismissed from service. (Salvacion A. Lamadrid v. Cathay Pacific Airways Limited And Vivian Lo, G.R. No. 200658, 23 June 2021, as penned by J. Hernando)

Prior to 1989 (Pre-Wenphil)

• Dismissal is Illegal
• Employer’s liability: Reinstatement plus Backwages

February 1989 – 1999 (Wenphil Doctrine)

• Dismissal is Valid
• Employer’s liability: Pay indemnity

Past Infractions Rule

Previous offenses may be used as justification for dismissal from work only if the past infractions are related to the subsequent offense upon which the basis of termination is decreed. (Salas v. Aboitiz One Inc., G.R. No. 178236, 2008)

ANALOGOUS CASES (Labor Code, Article 297[e])

HSBC Employees Union v. NLRC, G.R. No. 156635, 2016

A dismissal lacking in just or authorized cause is “illegal.” In a dismissal based on just or authorized cause, but effected without due process, the employee remains dismissed, but the employer must pay nominal damages.

2021 Blue Notes: 240

Hobson’s Choice

No choice at all; a choice between accepted what is offered or having nothing at all.

In Asufrin, Jr. v. San Miguel Corp. (G.R. No. 156658, 2004), the employees were given the choice either to voluntarily retire, be retrenched without benefits, or be dismissed without receiving any benefit at all.

~~Rule before Serrano (1995-2009): 3-month salary rule~~

• The employment contract involved in the instant case covers a two-year period but the overseas contract worker actually worked for only 26 days prior to his illegal dismissal. Thus, the three months’ salary rule applies. (Flourish Maritime Shipping v. Almanzor, G.R. No. 177948, 2008)