Dear Atty. Vlad,

I am a waiter in one of the restaurants in Dagupan City, Pangasinan. I work from 8 a.m. to 5 p.m. After I finished all of work in the restaurant and after 5 p.m., I have another work as a delivery rider doing delivery services to help augment the finances of my family. I have previously sought permission from my employer to work for another employer after my work ends but the same was declined without providing any reason. When the restaurant manager found out about my sideline, I was dismissed from my regular job for serious misconduct, pursuant to the prohibition of the restaurant policy against working for another employer. My sideline job as a delivery rider did not interfere with my regular job since I make it a point to finish all my work in the restaurant first. Apart from this, I perform my sideline job after 5 p.m. Was my dismissal valid?

Clarence

Dear Clarence,

Your restaurant manager is wrong and your dismissal is not valid. From what you share, you only perform your sideline work after the end of your regular work schedule at 5 p.m. In addition, your rider job did not interfere with your regular job and work schedule.

In the case of Jackqui R. Moreno vs San Sebastian College-Recoletos, Manila, G.R. 175283, 28 March 2008, the Supreme Court stated:

“In the present case, SSC-R failed to adduce any concrete evidence to prove that Moreno indeed harbored perverse or corrupt motivations in violating the aforesaid school policy. In her letter of explanation to the grievance committee dated 12 November 2002, Moreno explained in detail her role as the breadwinner and the grave financial conditions of her family. As previous requests for permission had already been denied, Moreno was thus prompted to engage in illicit teaching activities in other schools, as she desperately needed them to augment her income. Instead of submitting controverting evidence, SSC-R simply dismissed the above statements as nothing more than a “lame excuse” and are “clearly an afterthought,” considering that no evidence was offered to support them and that Moreno’s salary was allegedly one of the highest among the universities in the country.”

In addition, even if dismissal for cause is the prescribed penalty for the misconduct herein committed, in accordance with the SSC-R Faculty Manual and Moreno’s employment contract, the Court finds the same to be disproportionate to the offense.

Time and again, we have ruled that while an employer enjoys a wide latitude of discretion in the promulgation of policies, rules and regulations on work-related activities of the employees, those directives, however, must always be fair and reasonable, and the corresponding penalties, when prescribed, must be commensurate to the offense involved and to the degree of the infraction.

“Special circumstances were present in the case at bar which should have been properly taken into account in the imposition of the appropriate penalty. Moreno, in this case, had readily admitted her misconduct, which was undisputedly the first she has ever committed against the school. Her teaching abilities and administrative skills remained apparently unaffected by her external teaching engagements, as she was found by the grievance committee to be one of the better professors in the Accounting Department and she was even offered the Chairmanship of her college. Also, the fact that Moreno merely wanted to alleviate her family’s poor financial conditions is a justification that SSC-R failed to refute. SSC-R likewise failed to prove any resulting material damage or prejudice on its part as a consequence of Moreno’s misconduct. The claim by SSC-R that the imposition of a lesser penalty would set a bad precedent for the other faculty members who comply with the school policies is too speculative for this Court to even consider.”

Applying the above-cited ruling of the Supreme Court to your case, while you may have committed a misconduct for working with another employer, such misconduct is not sufficient to warrant the penalty of dismissal. As you have explained, you were prompted by a desire to add to the finances of your family. In addition, you performed your rider job after your work schedule and the same not interfere with your work. These circumstances are important to determine whether or not your misconduct was of such a grave and aggravated character and not merely trivial or unimportant. Certainly, the desire to earn more to sustain the finances of one’s family coupled with the fact that the work was done after your work schedule and that, the same did not interfere with your work, certainly cannot be characterized as a misconduct of such grave and aggravated character. As such, your dismissal was wrong or illegal.

I hope I was able to help you based on the facts that you have stated.

Atty. Vlad del Rosario