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Forgiving or condoning of employee violations

Who has the burden of proof when to show that an employee violation has been forgiven or condoned?

  • The employee has the burden of proof to establish that his/her previous violations have been forgiven or condoned by the employer.

R.B. Michael Press v. Galit, G.R. No. 153510, 13 February 2008


  • A dismissed machine operator argued that his numerous tardiness and absences have already been condoned by the employer since it did not immediately impose sanctions and his salary had already been reduced.

ISSUE: Has the employer condoned the violations of the employee under the circumstances?

HELD: No, there was no evidence to show that the employer made such condonation or waiver. Burden of proof is on the employee.

The Labor Arbiter was incorrect.

  • Habitual tardiness is a form of neglect of duty. Lack of initiative, diligence, and discipline to come to work on time everyday exhibit the employee’s deportment towards work. Habitual and excessive tardiness is inimical to the general productivity and business of the employer. This is especially true when the tardiness and/or absenteeism occurred frequently and repeatedly within an extensive period of time.
  • In resolving the issue on tardiness, the labor arbiter ruled that (the employers) cannot use (the employee’s) habitual tardiness and unauthorized absences to justify his dismissal since they had already deducted the corresponding amounts from his salary. Furthermore, the labor arbiter explained that since (the employee) was not subjected to any admonition or penalty for tardiness, (the employers) then had condoned the offense or that the infraction is not serious enough to merit any penalty. The CA then supported the labor arbiter’s ruling by ratiocinating that (the employers) cannot draw on respondent’s habitual tardiness in order to dismiss him since there is no evidence which shows that he had been warned or reprimanded for his excessive and habitual tardiness.
  • We (the Supreme Court) find the ruling incorrect.
  • The mere fact that the numerous infractions of respondent have not been immediately subjected to sanctions cannot be interpreted as condonation of the offenses or waiver of the company to enforce company rules. A waiver is a voluntary and intentional relinquishment or abandonment of a known legal right or privilege. It has been ruled that “a waiver to be valid and effective must be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him.” Hence, the management prerogative to discipline employees and impose punishment is a legal right which cannot, as a general rule, be impliedly waived.
  • In Cando v. NLRC, the employee did not report for work for almost five months when he was charged for absenteeism. The employee claimed that such absences due to his handling of union matters were condoned. The Court held that the employee did not adduce proof to show condonation coupled with the fact that the company eventually instituted the administrative complaint relating to his company violations.
  • Thus it is incumbent upon the employee to adduce substantial evidence to demonstrate condonation or waiver on the part of management to forego the exercise of its right to impose sanctions for breach of company rules.
  • In the case at bar, (the employee) did not adduce any evidence to show waiver or condonation on the part of (the employers) . Thus the finding of the CA that (the employers) cannot use the previous absences and tardiness because (the employee) was not subjected to any penalty is bereft of legal basis. In the case of Filipio v. The Honorable Minister Blas F. Ople, the Court, quoting then Labor Minister Ople, ruled that past infractions for which the employee has suffered the corresponding penalty for each violation cannot be used as a justification for the employee’s dismissal for that would penalize him twice for the same offense. At most, it was explained, “these collective infractions could be used as supporting justification to a subsequent similar offense.” In contrast, the (the employers) in the case at bar did not impose any punishment for the numerous absences and tardiness of respondent. Thus, said infractions can be used collectively by (the employers) as a ground for dismissal.
  • The CA however reasoned out that for (the employee’s) absences, deductions from his salary were made and hence to allow (the employers) to use said absences as ground for dismissal would amount to “double jeopardy.”
  • This postulation is incorrect.
  • (The employee) is admittedly a daily wage earner and hence is paid based on such arrangement. For said daily paid workers, the principle of “a day’s pay for a day’s work” is squarely applicable. Hence it cannot be construed in any wise that such nonpayment of the daily wage on the days he was absent constitutes a penalty.


  • Jurisprudence or Supreme Court Decisions
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