Dear Atty. Maan,

We have an employee who has had multiple disciplinary issues over time, including previous suspensions. Just last week, he committed another violation of our company’s code of conduct. He also consistently refuses to carry out tasks that are reasonably related to his responsibilities. Given this pattern of behavior, would it be legally safe to proceed with termination without risking a claim of illegal dismissal?

Hanna

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Dear Hanna,

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 gleamed 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