Unjust act for a just cause

Can an employee be dismissed on a ground not alleged in the notice of termination? This is the issue resolved in this case of Fernan.

Fernan was employed as a medical representative of a pharmaceutical company (DPP) on September 1, 1990. He later became its district manager in Ilocos. Among the employees working directly under his supervision was Connie, a medical representative residing in Pangasinan.

On three occasions particularly on March 9, 11, and 18, 1994, Fernan tried to sexually abuse Connie right in her apartment. Connie was thus forced to report these incidents to management right after the last attempt made on her which she formalized in her handwritten letter dated March 23, 1994 where she narrated in detail Fernan’s sexual advances. Later on she also filed a sworn complaint before the town police station and another letter to the employee’s union president enumerating the same attempts of sexual abuse committed by Fernan on her.

On the other hand, DPP management through its regional sales manager Bert immediately acted on Connie’s complaint and sent a letter to Fernan, asking him to report at the head office on March 21, 1994. At the head office he was confronted by Bert and DPP marketing and sales director about his attempts to sexually force himself upon his subordinate, Connie. Both Fernan and Connie separately gave their sides of the incident. Then Fernan was asked to take a leave of absence.

Thereafter Bert tried to induce Fernan to resign but the latter refused. Fernan’s salary was then withheld and he was not allowed to attend the meetings and activities of the company. His subordinates no longer reported to him and the company directed one of its district managers to take over his position and functions without notice to him.

Believing that he was suspended and dismissed constructively but unsure of the grounds, Fernan filed a complaint for illegal suspension, constructive dismissal, payment of salaries allowances, moral and exemplary damages on April 13, 1994 before the NLRC. Thereafter he received various oral and written notices from the company to report to the office and submit written explanations relative to his failure to follow instructions. Then he also received a letter charging him with grave misconduct for the assault on Connie and submit written explanation thereto; letter recalling the company car and directing him why no further disciplinary action should be given. But Fernan did not file any written explanation at all or comply with the instructions. So he was initially placed under suspension for 8 days then on May 19, 1994 he received notice terminating his employment for insubordination.

In the meantime the Labor Arbiter (LA) hearing his complaint for constructive dismissal, after careful consideration of all the facts and evidence on record including the testimonies of both Fernan and Connie as well as the position papers and documents they submitted, rendered a decision finding that Fernan was indeed constructively dismissed but his dismissal was valid due to the sexual abuse committed against his subordinate. Considering however that the company did not give him proper notice and hearing prior to his termination, the company was ordered to pay a penalty of P1,000. Fernan questioned this ruling. He argued that the LA’s justification of his dismissal is not proper as the said ground is not alleged in his notice of termination. Was he correct?

No. The ground of sexual abuse committed by Fernan against his subordinate actually exists and was established by substantial evidence before the LA. When Fernan filed his complaint for constructive dismissal on April 13, 1994, he was unsure of the actual ground. The very reason why he sought refuge in the labor tribunals was to ascertain the ground of his termination. And the LA made such finding that he was validly dismissed due to sexual abuse committed by him against his subordinate.

The LA would be rendered inutile if she would just seal her lips after finding that a just cause for dismissal exists merely because said ground was not stated in the notice of termination. The decision of the LA is supported by substantial evidence or the amount of evidence which a reasonable mind might accept as adequate to justify a conclusion. In addition to Connie’s sworn statement to the police, she sufficiently narrated Fernan’s attempt in her handwritten letter dated March 23, addressed to Bert and another letter to the president of the union.

The sexual harassment committed by a managerial employee against a subordinate is a valid cause for separation from service for lack of trust and confidence. It is the right, nay, the duty of every employer to protect its employees from oversexed superiors. As a manager, Fernan enjoyed the full trust and confidence of DPP and his subordinates. By committing sexual abuse against his subordinate he clearly demonstrated his lack of fitness to continue working and deserves a punishment of dismissal from the service.

So even if he was constructively dismissed as he was compelled to resign and forced to go on leave his dismissal is valid. However since the company did not comply with the twin procedural requirements of notice and hearing it should pay a penalty of P30,000 (Formantes vs. Duncan Pharmaceutical Phil.Inc. G.R. 170661, December 4, 2009).

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

E-mail at: jcson@pldtdsl.net –By Jose C. Sison (The Philippine Star)