Summary
▪ To be valid, the just cause of analogous causes should comply with prescribed standards.
1. Concept
“Analogous causes” – refer to similar serious and grave violations/offenses similar in character and gravity as the other just causes, namely: serious misconduct, willful disobedience, gross and habitual neglect of duty, fraud, willful breach of trust, commission of a crime.
Examples of analogous causes may be found in Supreme Court Decisions or Jurisprudence, such as insubordination, loss of trust and confidence, attitude problem, excessive tardiness or absences, discourteous/impolite remarks against a superior, to name a few.
2. Standards for analogous causes
DOLE Standards:
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. (Section 5.2[g], Rule I-A, DOLE D.O. 147-15)
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)
For an employee to be validly dismissed for a cause analogous to those enumerated in Article 282, the cause must involve a voluntary and/or willful act or omission of the employee. (John Hancock Life Insurance Corporation v. Davis, G.R. No. 169549, 03 September 2008)
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. Analogous Causes
The following are examples of analogous causes. The list is not an exhaustive list, but merely a sample.
a. Gross inefficiency
[G]ross inefficiency is analogous to gross and habitual neglect of duty under Article 297 (e) in relation to Article 297 (b) of the Labor Code, as amended, for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business, and constituting, therefore, just cause to dismiss an employee… (Telephilippines, Inc. v. Jacolbe, G.R. No. 233999, 18 February 2019)
“[G] ross inefficiency” falls within the purview of “other causes analogous to the foregoing,” this constitutes, therefore, just cause to terminate an employee under Article 282 of the Labor Code. One is analogous to another if it is susceptible of comparison with the latter either in general or in some specific detail; or has a close relationship with the latter. “Gross inefficiency” is closely related to “gross neglect,” for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business. (Aliling v. Feliciano, G.R. No. 185829, 25 April 2012)
In Buiser v. Leogardo, Jr., the Court explained that such inefficiency is understood to mean failure to attain work goals or work quotas, either by failing to complete the same within the allotted reasonable period, or by producing unsatisfactory results. (Telephilippines, Inc. v. Jacolbe, supra.)
Further, in San Miguel Corporation v. NLRC, the Court held that an employer is entitled to prescribe reasonable work standards, rules, and regulations necessary for the conduct of its business, to provide certain disciplinary measures in order to implement them, and to assure that the same would be complied with. This management prerogative of requiring standards may be availed of so long as they are exercised in good faith for the advancement of the employer’s interest. (Ibid.)
In fine, an employee’s failure to meet sales or work quotas falls under the concept of gross inefficiency, which in turn is analogous to gross neglect of duty that is a just cause for dismissal under Article 282 of the Code. However, in order for the quota imposed to be considered a valid productivity standard and thereby validate a dismissal, management’s prerogative of fixing the quota must be exercised in good faith for the advancement of its interest. (Aliling v. Feliciano, G.R. No. 185829, 25 April 2012)
Aliling v. Feliciano, G.R. No. 185829, 25 April 2012
⦁ The duty to prove good faith, however, rests with [the Company] as part of its burden to show that the dismissal was for a just cause. [The Company] must show that such quota was imposed in good faith. This [the Company] failed to do, perceptibly because it could not. The fact of the matter is that the alleged imposition of the quota was a desperate attempt to lend a semblance of validity to [the Complainant’s] illegal dismissal. It must be stressed that even [the Company’s] sales manager, Eve Amador (Amador), in an internal e-mail to San Mateo, hedged on whether [the Complainant] performed below or above expectation:
Could not quantify level of performance as he as was tasked to handle a new product (GX). Revenue report is not yet administered by IT on a month-to-month basis. Moreover, this in a way is an experimental activity. Practically you have a close monitoring with Armand with regards to his performance. Your assessment of him would be more accurate.
⦁ Being an experimental activity and having been launched for the first time, the sales of GX services could not be reasonably quantified. This would explain why Amador implied in her email that other bases besides sales figures will be used to determine [the Complainant’s] performance. And yet, despite such a neutral observation, [the Complainant] was still dismissed for his dismal sales of GX services. In any event, [the Company] failed to demonstrate the reasonableness and the bona fides on the quota imposition.
TelePhilippines, Inc. v. Jacolbe, G.R. No. 233999, 18 February 2019
⦁ In this case, records reveal that [the Complainant’s] AHT scores for 62 consecutive weeks, or from January 2012 up to his dismissal in March 2013, were well above the 7 minutes or lower AHT mark. As he had been having difficulty meeting the same, TP allowed him to continue in its employ and even enrolled him in its SMART Action and Performance Improvement Plans twice – in July to August 2012 and again in January 2013 – to help him improve his AHT scores. This notwithstanding, [the Complainant’s] AHT scores remained well above the 7-minute AHT mark. Undoubtedly, [the Complainant’s] repeated and consistent failure to meet the prescribed AHT mark over a prolonged period of time falls squarely under the concept of gross inefficiency and is analogous to gross and habitual neglect of duty under Article 297 of the Labor Code which justified his dismissal.
⦁ Moreover, the Court observes that the 7-minute AHT metric is not unique to [the Complainant] as it is in fact a key performance metric, which measures the effectivity and efficiency of a CSR in handling customer’s concerns in each call. It applies to all employees assigned to the Priceline account who, save for a few including [the Complainant], have all been able to meet the same. Along with the other key performance metrics, it was employed by TP to properly and reasonably assess the overall work performance of its employees. Notably, the AHT metric per se is also used by TP for all employees in its other accounts, and is in fact considered an established work performance evaluation metric within the business process outsourcing industry where TP belongs. [the Complainant’s] insistence that his Top Agent award for December 2012 contradicts the charge of inefficiency and poor performance does not deserve consideration. As records show, the Top Agent award is not a sufficient measure of an employee’s overall work performance since it proceeded solely from a single customer’s feedback in one call on one given day. All told, the 7-minute AHT metric does not appear to be arbitrary and unreasonable. On the contrary, the Court finds it necessary and relevant to the achievement of TP’s objectives and a reasonable work standard imposed by TP in the exercise of its management prerogative.
b. Moral depravity
A cause analogous to serious misconduct is a voluntary and/or willful act or omission attesting to an employee’s moral depravity. (Cosmos Bottling Corp. v. Fermin, G.R. Nos. 193676 and 194303, 20 June 2012)
c. Theft against co-employee
Theft committed by an employee against a person other than his employer, if proven by substantial evidence, is a cause analogous to serious misconduct. (Hocheng Philippines Corporation v. Marrales, G.R. No. 211497, 18 March 2015)
Cosmos Bottling Corp. v. Fermin, G.R. Nos. 193676 and 194303, 20 June 2012
⦁ In this case, the LA has already made a factual finding, which was affirmed by both the NLRC and the CA, that [the Complainant] had committed theft when he took [his co-employee’s] cellphone. Thus, this act is deemed analogous to serious misconduct, rendering Fermin’s dismissal from service just and valid.
d. Abandonment of work
Although abandonment of work is not expressly enumerated as a just cause under Article 297 of the Labor Code, jurisprudence has recognized it as a form of or akin to neglect of duty. (Demex Rattancraft, Inc. v. Leron, G.R. No. 204288, 08 November 2017)
Abandonment of work has been construed as “a clear and deliberate intent to discontinue one’s employment without any intention of returning back.” (Ibid.)
To justify the dismissal of an employee on this ground, two (2) elements must concur, namely:
1) The failure to report for work or absence without valid or justifiable reason; and
2) A clear intention to sever the employer-employee relationship. (Ibid.)
Mere failure to report to work is insufficient to support a charge of abandonment. The employer must adduce clear evidence of the employee’s “deliberate, unjustified refusal… to resume his [or her] employment,” which is manifested through the employee’s overt acts. (Ibid.)
e. Attitude problem
[A]n employee’s attitude problem is a valid ground for his termination. It is a situation analogous to loss of trust and confidence that must be duly proved by the employer. (Heavylift Manila, Inc. v. CA, G.R. No. 154410, 20 October 2005)
An employee who cannot get along with his co-employees is detrimental to the company for he can upset and strain the working environment. Without the necessary teamwork and synergy, the organization cannot function well. Thus, management has the prerogative to take the necessary action to correct the situation and protect its organization. When personal differences between employees and management affect the work environment, the peace of the company is affected. Thus, an employee’s attitude problem is a valid ground for his termination. (Ibid.)
Heavylift Manila, Inc. v. CA, G.R. No. 154410, 20 October 2005
⦁ [W]e are not convinced that in the present case, [the Company] ha[s] shown sufficiently clear and convincing evidence to justify [the Complainant’s] termination. Though they are correct in saying that in this case, proof beyond reasonable doubt is not required, still there must be substantial evidence to support the termination on the ground of attitude. The mere mention of negative feedback from her team members, and the letter dated February 23, 1999, are not proof of her attitude problem. Likewise, her failure to refute [the Company’s] allegations of her negative attitude does not amount to admission. Technical rules of procedure are not binding in labor cases. Besides, the burden of proof is not on the employee but on the employer who must affirmatively show adequate evidence that the dismissal was for justifiable cause.
⦁ In sum, we find that [the Complainant] was illegally dismissed, because [the Company] failed to show adequately that a valid cause for terminating respondent exists, and because [the Company] failed to comply with the twin requirement of notice and hearing.
f. Obesity – in the proper context
While obesity will not be an analogous cause in many establishments, it can be in the proper context. In the case below, it involved an airline male cabin crew who was not able to maintain the Company’s prescribed weight for its flight steward despite being given ample opportunity and assistance. The Supreme Court held that, in this specific and particular case, obesity is an analogous cause.
Yrasuegi v. Philippine Airlines, Inc., G.R. No. 168081, 17 October 2008
[Background]
⦁ [The Complainant was a former international flight steward. The employer-Company was an airline.]
⦁ [The Complainant] stands five feet and eight inches (5’8”) with a large body frame. The proper weight for a man of his height and body structure is from 147 to 166 pounds, the ideal weight being 166 pounds, as mandated by the Cabin and Crew Administration Manual1 of [the Company].
⦁ The weight problem of [the Complainant] dates back to 1984. Back then, [the Company] advised him to go on an extended vacation leave from December 29, 1984 to March 4, 1985 to address his weight concerns. Apparently, [the Complainant] failed to meet the company’s weight standards, prompting another leave without pay from March 5, 1985 to November 1985.
⦁ After meeting the required weight, [the Complainant] was allowed to return to work. But [the Complainant’s] weight problem recurred. He again went on leave without pay from October 17, 1988 to February 1989.
⦁ On April 26, 1989, [the Complainant] weighed 209 pounds, 43 pounds over his ideal weight. In line with company policy, he was removed from flight duty effective May 6, 1989 to July 3, 1989. He was formally requested to trim down to his ideal weight and report for weight checks on several dates. He was also told that he may avail of the services of the company physician should he wish to do so. He was advised that his case will be evaluated on July 3, 1989.
⦁ On February 25, 1989, [the Complainant] underwent weight check. It was discovered that he gained, instead of losing, weight. He was overweight at 215 pounds, which is 49 pounds beyond the limit. Consequently, his off-duty status was retained.
⦁ On October 17, 1989, [the Company] Line Administrator [G. Dizon] personally visited [the Complainant] at his residence to check on the progress of his effort to lose weight. [The Complainant] weighed 217 pounds, gaining 2 pounds from his previous weight. After the visit, [the Complainant] made a commitment to reduce weight in a letter addressed to Cabin Crew Group Manager [A. Barrios]…
⦁ Despite the lapse of a ninety-day period given him to reach his ideal weight, [the Complainant] remained overweight. On January 3, 1990, he was informed of the [the Company] decision for him to remain grounded until such time that he satisfactorily complies with the weight standards. Again, he was directed to report every two weeks for weight checks.
⦁ [The Complainant] failed to report for weight checks. Despite that, he was given one more month to comply with the weight requirement. As usual, he was asked to report for weight check on different dates. He was reminded that his grounding would continue pending satisfactory compliance with the weight standards.
⦁ Again, [the Complainant] failed to report for weight checks, although he was seen submitting his passport for processing at the [the Company] Staff Service Division.
⦁ On April 17, 1990, [the Complainant] was formally warned that a repeated refusal to report for weight check would be dealt with accordingly. He was given another set of weight check dates.6 Again, [the Complainant] ignored the directive and did not report for weight checks. On June 26, 1990, [the Complainant] was required to explain his refusal to undergo weight checks.
⦁ When [the Complainant] tipped the scale on July 30, 1990, he weighed at 212 pounds. Clearly, he was still way over his ideal weight of 166 pounds.
⦁ From then on, nothing was heard from [the Complainant] until he followed up his case requesting for leniency on the latter part of 1992. He weighed at 219 pounds on August 20, 1992 and 205 pounds on November 5, 1992.
⦁ On November 13, 1992, [the Company] finally served [the Complainant] a Notice of Administrative Charge for violation of company standards on weight requirements. He was given ten (10) days from receipt of the charge within which to file his answer and submit controverting evidence.
⦁ On December 7, 1992, [the Complainant] submitted his Answer. Notably, he did not deny being overweight. What he claimed, instead, is that his violation, if any, had already been condoned by [the Company] since “no action has been taken by the company” regarding his case “since 1988.” He also claimed that [the Company] discriminated against him because “the company has not been fair in treating the cabin crew members who are similarly situated.”
⦁ On December 8, 1992, a clarificatory hearing was held where [the Complainant] manifested that he was undergoing a weight reduction program to lose at least two (2) pounds per week so as to attain his ideal weight.
⦁ On June 15, 1993, [the Complainant] was formally informed by [the Company] that due to his inability to attain his ideal weight, “and considering the utmost leniency” extended to him “which spanned a period covering a total of almost five (5) years,” his services were considered terminated “effective immediately.”
⦁ His motion for reconsideration having been denied, [the Complainant] filed a complaint for illegal dismissal against [the Company].
[Resolution]
⦁ In the case at bar, the evidence on record militates against [the Complainant]’s claims that obesity is a disease. That he was able to reduce his weight from 1984 to 1992 clearly shows that it is possible for him to lose weight given the proper attitude, determination, and self-discipline. Indeed, during the clarificatory hearing on December 8, 1992, [the Complainant] himself claimed that “[t]he issue is could I bring my weight down to ideal weight which is 172, then the answer is yes. I can do it now.”
⦁ True, [the Complainant] claims that reducing weight is costing him “a lot of expenses.” However, [the Complainant] has only himself to blame. He could have easily availed the assistance of the company physician, per the advice of [the Company]. He chose to ignore the suggestion. In fact, he repeatedly failed to report when required to undergo weight checks, without offering a valid explanation. Thus, his fluctuating weight indicates absence of willpower rather than an illness.
⦁ In fine, We hold that the obesity of [the Complainant], when placed in the context of his work as flight attendant, becomes an analogous cause under Article 282(e) of the Labor Code that justifies his dismissal from the service. His obesity may not be unintended, but is nonetheless voluntary. As the CA correctly puts it, “[v]oluntariness basically means that the just cause is solely attributable to the employee without any external force influencing or controlling his actions. This element runs through all just causes under Article 282, whether they be in the nature of a wrongful action or omission. Gross and habitual neglect, a recognized just cause, is considered voluntary although it lacks the element of intent found in Article 282(a), (c), and (d).”
⦁ [Further], [t]he dismissal of [the Complainant] can be predicated on the bona fide occupational qualification defense.
Read more: Bona Fide Occupational Qualification
References
⦁ 1987 Philippine Constitution
⦁ Book VI, Presidential Decree No. 442, a.k.a. Labor Code of the Philippines
⦁ DOLE Department Order No. 147, Series of 2015
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/Updated: January 5, 2023
