Gross but not habitual

Under Article 282 (b) of the Labor Code, the services of a regular employee may be terminated for gross and habitual negligence. Can an employee however be dismissed for gross negligence even if it is not habitual? This is answered in this case of Mando.

Mando was a regular employee of a company engaged in delivery services in Metro Manila (LBC). He was designated as a customer associate and tasked with delivery and pick up of packages to and from LBC and its customers. Mando was assigned the use of a P46,000 Kawasaki Motorcycle with a clear, specific and repeated instruction to lock the steering wheel when parking it.

On April 30, 2001 at about 6:10 p.m. Mando arrived at LBC’s Escolta office to drop off packages coming from various LBC air-posts. He parked his motorcycle in front of the LBC office, switched off the engine and took the key. However he did not lock the steering wheel. When he returned within three to five minutes, the motorcycle was gone. He immediately reported the loss to his superiors and to the nearest police station.

LBC through its Vice President issued a memorandum to Mando directing him to be present at the investigation and explain his side on why he should not be dismissed for alleged carnapping of the motorcycle and alleged pilferage of a package.

In his explanation Mando said that his failure to lock the steering wheel was mere lapse in judgment because he thought that no such thing would happen as he stayed inside the office for only three to five minutes. He said that he was primarily concerned with delivery of the packages and the huge sum needed to be secured inside the office.

But on May 30, 2001, after investigation, Mando received a notice of termination from LBC and was barred from reporting for work. According to LBC and its Vice President, Mando was grossly negligent in the performance of his duties and that even if it is not habitual, he should still be dismissed because his gross negligence resulted in substantial damage to the company. Was Mando’s dismissal legal?

Yes. Gross negligence is characterized by want of even a slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected.

Mando was undisputedly negligent when he left the motorcycle along the street in Escolta without locking the steering wheel despite clear, specific instructions to do so. His argument that he stayed inside the office for only three to five minutes is of no moment. On the contrary it only proved that he did not exercise even the slightest degree of care during that very short time. He did not deliberately heed his employer’s very important precautionary measures to ensure the safety of company property. Regardless of the reasons advanced the exact evil sought to be prevented by LBC (in repeatedly directing its customer associates to lock their motorcycles) occurred resulting in substantial loss to LBC.

An employer cannot be legally compelled to continue with the employment of a person admittedly guilty of gross negligence in the performance of duties especially if the employee’s continued tenure is patently inimical to the employer’s interest. What happened here was not a simple case of oversight and could not be attributed to simple lapse of judgment. No amount of good intent or previous conscientious performance of duty can assuage the damage Mando caused LBC when he failed to exercise the requisite degree of diligence required of him under the circumstances.

Although Mando’s infraction was not habitual, LBC lost a motorcycle with a book value of P46,000 which by any means could not be considered a trivial amount. Mando was entrusted with a great responsibility to take care of and protect company property and his gross negligence should not allow him to walk away from the incident as if nothing happened and, worse, to be rewarded with back-wages to boot (LBC Express etc vs. Mateo, G.R. 168215, June 9, 2009).

It seems that the SC here gives too much importance to material value of things of this world than the intangible sense of loss in a person deprived of a job because of a single though serious mistake.

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Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445. –Jose C. Sison (The Philippine Star)

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E-mail at: jcson@pldtdsl.net