Dear Atty. Maan,

One of our employees has been problematic lately. This employee has already been reprimanded several times in the past was even suspended. Last week, he was caught again in violation of our company’s code of conduct. Can we terminate a problematic employee who not only has attitude problem, but also refuses to do tasks which are incidental to his duties without the risk of committing illegal dismissal?

Apple

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Dear Apple,

In determining the sanction imposable on an employee, the employer may consider the former’s past misconduct and previous infractions. Also known as the principle of totality of infractions, the Court explained such concept in Merin v. National Labor Relations Commission, et al., 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. 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 on board. 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.”

Likewise, in Sugue v. Triumph International (Phils.), Inc., the Supreme Court stated that employers are not expected to retain an employee whose behavior causes harm to its establishment:

“Indeed, the law imposes many obligations on the employer such as providing just compensation to workers, and observance of the procedural requirements of notice and hearing in the termination of employment. On the other hand, the law also recognizes the right of the employer to expect from its workers not only good performance, adequate work and diligence, but also good conduct and loyalty. The employer may not be compelled to continue to employ such persons whose continuance in the service will patently be inimical to his interests.”

From the foregoing, it can be gleaned that as an employer, you may factor in the employee’s previous misconduct in determining the appropriate and perhaps the ultimate penalty of dismissal upon the erring employee.

Hope this helps.

Atty. Mary Antonnette Baudi