Dear Atty. Kathy,

I was recently employed this year as a finance manager in Company A, where I met Employee Z, a property manager, who became my boyfriend. Last month, Company A implemented a policy prohibiting illicit relationships and illicit affairs with co-employees. Because of this, Employee Z and I had to choose to continue hiding our relationship at the workplace even though there is no legal impediment for us to be together, just to avoid any issue. Employee Z resigned, and during the exit interview, he had to disclose our relationship. Soon after, I received a notice to explain saying I violated the policy prohibiting illicit relationships with co-employees, which resulted in breach of trust and confidence, since I am a finance officer, with the imposable penalty of dismissal. Can I really be dismissed for the ground of breach of trust?

Bianca

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Dear Bianca,

Willful breach of trust, as just cause for the termination of employment, according to jurisprudence, is founded on the fact that the employee concerned: (1) holds a position of trust and confidence, for example, managerial personnel or those vested with powers and prerogatives to lay down management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees; or (2) is routinely charged with the care and custody of the employer’s money or property, for example, cashiers, auditors, property custodians, or those who, in normal and routine exercise of their functions, regularly handle significant amounts of money or property. In any of these situations, it is the employee’s breach of the trust that his or her position holds which results in the employer’s loss of confidence.

Loss of confidence is, by its nature, is subjective and prone to abuse by the employer. Thus, the law requires that the breach of trust — which results in the loss of confidence — must be willful. The breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently. Further, the Supreme Court has clarified that it is the breach of the employer’s trust, not the specific employee act/s which the employer claims caused the breach, which the law requires to be willful, knowingly and purposefully done by the employee to justify the dismissal on the ground of loss of trust and confidence.

The guidelines for the application of the doctrine of loss of confidence are: (1) the loss of confidence should not be simulated; (2) it should not be used as a subterfuge for causes which are improper, illegal or unjustified; (3) it should not be arbitrarily asserted in the face of overwhelming evidence to the contrary; and (4) it must be genuine, not a mere afterthought to justify earlier action taken in bad faith. In other words, there must be an actual breach of duty which must be established by substantial evidence.

Based solely on your narration, it appears that you hold a position of trust and confidence as a finance manager. It does not appear, however, that you committed an act which breached Company A’s trust. The circumstances you presented do not show that your relationship with Employee Z is wrong, illegal or immoral from the perspective of secular morality; and thus, do not appear, as well, to be prohibited by Company A’s subject policy. Stated another way, it appears that you did not commit any act or misconduct that willfully, intentionally, or purposely breached Company A’s trust.

Subject to supervening circumstances, there is no basis to dismiss you for the ground of breach of trust.

(Zaida R. Inocente versus St. Vincent Foundation for Children and Aging Inc., et al., G.R. No. 202621, 22 June 2016).

Atty. Kathy Larios