1. Concept

Analogous cause refers to those similar to the enumerated just causes.

The Labor Code aims to give the employer sufficient leeway to terminate a troublesome employee by not limiting the grounds for just causes. By virtue of analogous cause, the employer can cite a ground similar to other just causes to justify termination of an employee.

2. Standards

DOLE D.O. 147-15 provides for the standards.

To be a valid ground for termination, the following must be present:

1) There must be act or omission similar to those specified just causes;

2) The act or omission must be voluntary and/or willful on the part of the employees; and,

3) No act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulations or policies.

The following discusses each requirement.

a. Act or omission

1st requisite: There must be act or omission similar to those specified just causes.

By way of review, the following are the specified just causes in the Labor Code:

1) Serious Misconduct

2) Willful Disobedience

3) Gross and Habitual Neglect of Duty

4) Fraud

5) Loss of Confidence

6) Commission of a Crime

The above-listed just causes are grave in character and thus justifies the employer in dismissing the erring employees. Consequently, an analogous cause should likewise be serious in nature so as to justify employee termination.

b. Voluntary and/or willful

2nd requisite: The act or omission must be voluntary and/or willful on the part of the employees.

Deliberateness is the common theme in the enumerated just causes: serious misconduct, willful disobedience, gross and habitual neglect of duty, fraud, loss of confidence, and commission of a crime. Thus, the analogous cause has to be voluntary and/or willful as well. (Nadura v. Benguet Consolidated, Inc., G.R. No. L-17780, 24 August 1962)

c. Expressly specified in the company policies

3rd requisite: No act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulations or policies.

This is a new and additional rule by virtue of DOLE D.O. 2015-147. This is not found in the Labor Code nor in jurisprudence.

As required by this rule, analogous causes should be listed – in black and white – in the employer’s company rules, regulations, or policies. If such is not listed, the rule states that such analogous cause will not be recognized.

3. Separation pay

Unlike other just causes, dismissal via analogous cause could result in separation pay in favor of the employee, particularly those who have long years of service.

In analogous causes for termination like inefficiency, drug use, and others, the NLRC or the courts may opt to grant separation pay anchored on social justice in consideration of the length of service of the employee, the amount involved, whether the act is the first offense, the performance of the employee and the like, using the guideposts enunciated in PLDT on the propriety of the award of separation pay.” (Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. Toyota Motor Philippines Corporation, G.R. Nos. 158798-99, 10 October 2007)

For more discussions, see: Separation Pay.