Dismissal with mercy

Published by rudy Date posted on January 13, 2009

Article 282 (c) of the Labor Code allows an employer to terminate the services of an employee for loss of trust and confidence. It must be shown however that the employee concerned must be holding a position of trust and confidence and there must be an act that would justify such loss. This case of Cardo is an example of such dismissal.

Since 1992 Cardo had been working as district manager of a pharmaceutical company in the Mindanao area. His duties include the promotion of the company’s nutritional products to medical practitioners, sale to drug outlets and supervision of territory managers detailed in the district.

In an audit conducted on June 22, 1998, the company auditor found 20 packs of unused company sample products in Cardo’s car, with his father’s thank you note attached, thanking his political supporters for their help in the elections of May 1998.

When required to explain Cardo admitted that he had caused the attachment of the notes on the product samples but claimed that there was no unauthorized distribution since he gave them only to doctors who requested them also upon suggestion of one of their doctor-clients for distribution at various health centers. He said he committed an honest mistake, an irresponsible act in succumbing to the suggestion and pleaded for consideration for his lapse, insisting that he has not caused any damage nor injury to the company’s image as the samples were not in fact distributed and that no gain was derived by him or his family.

But after due notice and hearing where he was given a chance to present his evidence, Cardo was nevertheless dismissed from employment. The company reasoned out that Cardo who was occupying a position of trust and confidence admitted attaching his father’s political thank you note on the product samples and even confirmed his intention to distribute them to his father’s political supporters as a way of thanking them for their support in the election. This act constituted an infraction of company rules and a breach of trust that merited a penalty of dismissal, the company said. Was the company correct?

Yes. There are two classes of positions of trust. The first consists of managerial employees or those vested with the powers and prerogatives to lay down management policies, and to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions. The second consists of those who, in the normal and routine exercise of their functions regularly handle significant amounts of money or property like cashiers, auditors, property custodians etc.

In this case, Cardo was employed to handle pharmaceutical products for distribution to medical practitioners and sale to drug outlets. As a result of his handling of large amounts of the company samples, he is, by law, an employee with a position of trust, falling under the second class.

His act of stapling his father’s thank you note to the samples warrants the loss of the company’s trust and confidence. As a supervisor of fellow medical representatives, he has the duty to set good example to his colleagues. A higher standard of confidence was reposed on him. There is no doubt that Cardo willfully breached that trust by not asking for permission before using company property for his own or for another’s benefit as required in the Company Standard of Business Conduct. Moreover, when he failed to turn over the samples left in his care and stapled the political thank you note on them with the intention of distributing them to his father’s supporters, he had, in effect appropriated company property for personal gain and benefit.

The two requisites for loss of trust and confidence having been met, the company is well within its rights to dismiss Cardo. However while the dismissal is valid Cardo’s plea for mercy should be heard. Since he was validly dismissed for a cause other than serious misconduct or those that negatively reflect on his moral character, the award of separation pay of one month salary for every year of service is justifiable. This is to cover the bitter termination experienced by Cardo with a little social justice (Bristol Myers Squibb Philippines Inc vs. Baban, G.R. 167449, December 17, 2008).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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E-mail at: jcson@pldtdsl.net

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