Gross and habitual neglect of duty go together.
Gross neglect refers to “the absence of that diligence that an ordinary prudent man would use in his/her own affairs.” (Section 4 (j), Rule I-A, DOLE D.O. No. 2015-147)
On the other hand, habitual neglect refers to “repeated failure to perform one’s duties over a period of time, depending upon the circumstances.” (Section 4 (k), Rule I-A, Ibid.)
As required by the Labor Code, “in dismissing an employee for gross and habitual neglect of duties, the negligence should not merely be gross, it should also be habitual.” (International School of Manila v. Santos, G.R. No. 167286, 05 February 2014)
Thus, an isolated incident of negligence would not be sufficient for just cause dismissal. For a single act of negligence, the penalty of dismissal would be harsh. A lesser penalty would suffice, such as verbal warning, written reprimand, or a suspension without pay.
St. Luke’s Medical Center, Inc. v. Notario
G.R. No. 152166, 20 October 2010
[The employee – an In-House Security Guard – was dismissed after his failure to observe the rotation/sequencing process of the VCR for the CCTV to capture a theft incident in one of the hospital rooms. “In his letter dated January 6, 1997, [the employee] explained that on the subject dates, he was the only personnel on duty as nobody wanted to assist him. Because of this, he decided to focus the cameras on the Old and New Maternity Units, as these two units have high incidence of crime.” Finding the explanation unsatisfactory, he was dismissed.]
Under Article 282 (b) of the Labor Code, an employer may terminate an employee for gross and habitual neglect of duties. Neglect of duty, to be a ground for dismissal, must be both gross and habitual. Gross negligence connotes want of care in the performance of one’s duties. Habitual neglect implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances. A single or isolated act of negligence does not constitute a just cause for the dismissal of the employee. Under the prevailing circumstances, [the employee] exercised his best judgment in monitoring the CCTV cameras so as to ensure the security within the hospital premises. Verily, assuming arguendo that [the employee] was negligent, although this Court finds otherwise, the lapse or inaction could only be regarded as a single or isolated act of negligence that cannot be categorized as habitual and, hence, not a just cause for his dismissal. (Emphasis supplied.)
The next section provides for the standards required to be observed for the proper application of the ground of gross and habitual neglect of duty.
DOLE D.O. 147-15 provides for the standards.
To be a valid ground for termination, the following must be present:
- There must be neglect of duty; and
- The negligence must be both gross and habitual in character.
a. Neglect of duty
1st Requisite: There must be neglect of duty.
This just cause is about an employee’s neglect of his duties. It can come in many forms such as when an employee fails to monitor assigned tasks, forgets to do his responsibilities, or does not perform his assigned functions.
Cavite Apparel, Incorporated v. Marquez
G. R. No. 172044, 06 February 2013
[A rank-and-file employee was dismissed after her 4th absence without leave pursuant to the company policies.]
Neglect of duty, to be a ground for dismissal under Article 282 of the Labor Code, must be both gross and habitual. Gross negligence implies want of care in the performance of one’s duties. Habitual neglect imparts repeated failure to perform one’s duties for a period of time, depending on the circumstances. Under these standards and the circumstances obtaining in the case, we agree with the [Court of Appeals] that [the employee] is not guilty of gross and habitual neglect of duties.
x x x
… Based on what we see in the records, there simply cannot be a case of gross and habitual neglect of duty against [the employee]. Even assuming that she failed to present a medical certificate for her sick leave on May 8, 2000, the records are bereft of any indication that apart from the four occasions when she did not report for work, Michelle had been cited for any infraction since she started her employment with the company in 1994. Four absences in her six years of service, to our mind, cannot be considered gross and habitual neglect of duty, especially so since the absences were spread out over a six-month period. (Emphasis supplied.)
Care should be observed in exercising this just cause. While neglect of duty is its foundation, it requires that such is gross and habitual in character as will be explained in the next section.
b. Negligence is gross and habitual
2nd Requisite: The negligence must be both gross and habitual in character.
Gross negligence “connotes want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them.” (International School Manila v. Santos, supra.)
Thus, it should not be a simple act of negligence.
Depending on circumstances, mere oversight generally would not be sufficient to qualify as gross negligence. For example, an employee who fails to remove the plug of his computer before leaving work would have committed an ordinary negligence only and would not warrant dismissal as penalty.
However, an employee who repeatedly fails to turn off the gas valve in a factory and such is his primary responsibility to avoid fire or explosion – is liable for gross negligence and habitual at that if it was repeatedly done.
Habitual neglect “implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances.” (Ibid.)
Hence, an isolated act of negligence would not be sufficient to be a just cause for termination. As to how the number of frequency to constitute an act as habitual, there is no definite number or mathematical science provided for by law. Jurisprudence repeatedly instructs that it will depend upon the circumstances.
Citibank, N.A. v. Llonillo
G.R. No. 111222, 18 January 1995
The evidence on record succinctly established the gross negligence of [the employee]. She admitted that the first time she was asked by Verendia to pick up one of the newly approved and unused credit cards, she immediately acceded. Yet at that time, she had not personally met nor previously seen Verendia. When asked how she came to know to whom she would give the card, [the employee] responded that Verendia described herself over the phone and that was how she was able to identify Verendia when she first met her. Thus, on the basis of a mere description over the telephone, [the employee] delivered the credit cards to Verendia.
The succeeding occasions when she delivered the other newly approved and unused credit cards to Verendia also revealed [the employee’s] gross lack of care. Again, she admitted that Verendia would call her up at the office to say she was enroute to the bank to get some of the newly approved and unused credit cards. Under the pretext that Verendia had difficulty in finding a parking space within the bank’s premises, Verendia would request her to get the credit cards instead. [The employee] accede to the requests. She got the new and unused credit cards and gave them to Verendia at the mezzanine floor of the bank. It did not strike [the employee] as strange that while Verendia allegedly found difficulty in finding a parking space within the bank premises, yet she was always able to meet her at the mezzanine floor of the bank to get the credit cards.
[The employee’s] gross negligence also showed when she delivered the credit card issued to Marife Bacuetes, another fictitious APBCI employee. She admitted that she gave the card to Verendia’s messenger, a person whom she had not seen before but who merely represented to her that he was the messenger sent by Verendia to pick up the card. When queried about the identity of the said messenger, [the employee] replied that she did not ask for the messenger’s name. Neither did she ask the alleged messenger or Verendia herself to sign a receipt evidencing their acceptance of the credit cards.
All of the above acts and omissions of [the employee] were in patent violation of [the employer] bank’s policy that an employee may take delivery of newly approved and unused credit cards issued in another’s name, but in doing so, he/she assumes the responsibility of delivering the credit card to the cardholder concerned or to the latter’s duly authorized representative.
[The employee] Llonillo claims as a defense that even if she did not pick up the seven (7) newly approved and unused credit cards and deliver the same to Verendia, still, the latter could have gotten hold of the same by herself. [The employee] stresses that Verendia herself and bank employee Supnad were able to personally pick up the other credit cards issued to fictitious APBCI employees. The possibility is beside the point. It cannot obliterate the truth that she committed gross negligence in the delivery of the seven (7) newly approved and unused credit cards to Verendia and her messenger.
In Century Iron Works, Inc. v. Bañas, the employee – an Inventory Controllers – was dismissed after an investigation established his responsibility for numerous violations.
Century Iron Works, Inc. v. Bañas
G.R. No. 184116, 19 June 2013
… The evidence on record shows that [the employee] committed numerous infractions in his one year and eleven-month stay in Century Iron. On October 27, 2000, Century Iron gave Bañas a warning for failing to check the right quantity of materials subject of his inventory. On December 29, 2000, Bañas went undertime. On January 2, 2001, Bañas incurred an absence without asking for prior leave. On August 11, 2001, he was warned for failure to implement proper warehousing and housekeeping procedures. On August 21, 2001, he failed to ensure sufficient supplies of oxygen-acetylene gases during business hours. On November 15, 2001, [the employee] was again warned for failing to secure prior permission before going on leave. In May 2002, Century Iron’s accounting department found out that [the employee] made double and wrong entries in his inventory.
x x x
To our mind, such numerous infractions are sufficient to hold him grossly and habitually negligent. His repeated negligence is not tolerable. The totality of infractions or the number of violations he committed during his employment merits his dismissal. Moreover, gross and habitual negligence includes unauthorized absences and tardiness, as well as gross inefficiency, negligence and carelessness…
Besides, the determination of who to keep in employment and who to dismiss for cause is one of [the employer’s] prerogatives. Time and again, we have recognized that the employer has the right to regulate, according to its discretion and best judgment, all aspects of employment, including work assignment, working methods, processes to be followed, working regulations, transfer of employees, work supervision, lay-off of workers and the discipline, dismissal and recall of workers. It would be the height of injustice if we force an employer to retain the services of an employee who does not value his work.
To reiterate, the law requires that the negligence should be both gross and habitual. A single or isolated act of negligence would not do, as well as a simple or ordinary act of negligence.