Dear Atty. Vlad,

I am a waiter working in one of the restaurants in BGC and render work from 11 a.m. to 8 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. My sideline work did not interfere with my work in the restaurant. When the manager of the restaurant found out about my sideline work, I was dismissed from my regular job for serious misconduct, pursuant to the prohibition of the Restaurant Policy against working with another employer. My rider job did not interfere with my regular job since I made sure that I have already finished my work in the restaurant. I also leave after 8 p.m. Was my dismissal valid? I hope you can help me.

Gregory

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Dear Gregory,

Your manager is wrong and your employer should be held liable for illegal dismissal.

From what you narrated, you perform your sideline work after your work in the restaurant has already ended. In fact, you leave the restaurant after 8 p.m. or after your shift. 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 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.

Applying the foregoing ruling of the Supreme Court to your case, while you may have violated the Prohibition in the Policy of the Restaurant against working for another employer, which may be considered as a form of misconduct, the same 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 your work schedule ended and your sideline work did not interfere with your regular work in the restaurant. 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