Dear Atty. Vlad,

I am a waiter in one of the restaurants in Taguig City and render work from 11 a.m. to 7 p.m. After my work ends in the restaurant, I do sideline work as a rider doing delivery services to help in the finances of my family. When the owner of the restaurant found out about my sideline, I was dismissed from my regular job for serious misconduct, pursuant to the prohibition of the Company policy against working for another employer. My rider job did not interfere with my regular job since I made sure that I have already finished all of my tasks before doing my sideline job. Was my dismissal valid? I hope you can help me.

Gian

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Dear Gian,

Your employer is wrong and he should be held liable for illegal dismissal. From what you shared, you perform your sideline work after your schedule. In fact, you have already finished all of your tasks before doing your sideline work. In addition, your sideline job as a delivery rider did not interfere with your regular job and work schedule in the restaurant.

In the case of Jackqui R. Moreno vs. San Sebastian College-Recoletos, Manila, G.R. No. 175283, 28 March 2008, the Supreme Court stated:

“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. x x x.”

Applying the foregoing ruling of the Supreme Court to your case, while you may have violated the policy of the restaurant which prohibited working for another employer (which in turn, may be considered as a form of misconduct), said offense is not sufficient to warrant the penalty of dismissal. As you have explained, you merely wanted to augment the finances of your family. In addition, you performed your rider job after you have finished all of your tasks. 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. The desire to augment 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, 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 assist you based on the facts that you have stated.

Atty. Vlad del Rosario