Serious Misconduct concept

Serious misconduct is one of the just causes for termination of employee under Article 282 of the Labor Code.

Misconduct has been defined as improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. (Austria vs. NLRC, G.R. No. 124382, August 16, 1999.)

Elements of Serious Misconduct

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

  1. The misconduct must be serious;
  2. It must relate to the performance of the employee’s duties; and,
  3. Must show that the employee has become unfit to continue working for the employer.

Mere Error in Judgment is not Misconduct

Misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. (Colegio de San Juan de Letran-Calamba vs. Villas, G.R. No. 137795, March 26, 2003)

Mere error in judgment cannot qualify as misconduct (much less a serious one) because of lack wrongful intent. As held in NLRC vs. Salgarino, G.R. No. 164376, July 31, 2006, it is not sufficient that the act or conduct complained of has violated some established rules or policies. It is equally important and required that the act or conduct must have been performed with wrongful intent.

Misconduct must be Serious

The misconduct to be serious must be of such grave and aggravated character and not merely trivial and unimportant.

Misconduct must be in Relation to Employee’s Work

Misconduct, however serious, must, nevertheless, be in connection with the employee’s work to constitute just cause for his separation.

Cases

  1. The employee’s (an accounting manager) act of willfully understating the company’s profits or financial position, committed as it was in order to “save” costs, which to her warped mind, was supposed to benefit her employer, partakes serious misconduct. It was not merely a violation of company policy, but of the law itself, and put the employer at risk of being made legally liable. The dismissal in this case is warranted. An employer cannot be compelled to retain in its employ someone whose services is inimical to its interests. (Llamas vs. Ocean Gateway, G.R. No. 179293, August 14, 2009.)
  2. Two traffic operators who placed free long distance calls was dismissed by PLDT. The dismissal was upheld as valid. The dishonesty commited by the erring employee qualifies as serious misconduct especially that it goes to the very heart and essence of the company. Long distance call is the lifeblood of PLDT. (PLDT vs. Montemayor, G.R. No. 88626, October 12, 1990.)
  3. A ticket freight clerk was dismissed for dishonesty for charging to his VISA credit card some plane tickets in spite of the cash payment made by passengers. The dismissal was for a just cause. (PAL vs. NLRC, G.R. No. 117038. September 25, 1997.)
  4. The case involved toll guards assigned at the North Luzon Tollway, Bulacan interchange, who were caught accepting bribe in the form of cash and a dog from a motorist who was suspected of illegally transporting dogs. The dismissal was upheld as for just cause. Bribery constitutes serious misconduct. (Phil. National Construction vs. NLRC, G.R. No. 128345, May 18, 1999.)

Last Edited: Friday, August 19, 2011

Caveat: Subsequent court and administrative rulings, or changes to, or repeal of, laws, rules and regulations may have rendered the whole or part of this article inaccurate or obsolete.
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29 comments

  1. I was terminated due to engaging in cometing business and Awol. before the termination process there is already a misunderstanding between ms and my employer and they are forcing mr to resign and finding some way to terminate me. I am pregnant and due to this problems I was advise by my doctor to have a complete bedrest becuse o threatened abortion. Medical certificates were sent to my employer. Since May 19 I am on leave without pay. Last May 27 they sent me a show cause notice for the serious misconduct and I was not able to attend the admin and advised them by sending them my doctors certificate. I was under preventive suspension from June 2 -July 2. My husband went to our office and have a letter informing me that I can’t report to work and we are waiting for the result of their investigation. Me and my husband worked for the same company. July 5 they terminated my husband. I was waitig for their decision on my status. July 19 my husband went to the office to let my sickness to be sign bcoz I was under confinement. They didn’t sign it and note on the form that I was charge with AWOL. Another show cause notice was sent to me by email on July 21 but dated July 9 and indicating I was AWOL since June 15, which I was under suspension. We filed case with NLRC. Iwas terminated without any admin hearing. They presented my probabationary contract (08/29/07 – 10/31/07) with the non compete clause and nondisclosure agreement. On my yearly contract including the last one there is no NCC and NDA included. They sent us a new employment contract last march with the ncc and nda which they say a supplemental to our existing contract but we didn’t sign it bcoz there are quesionable inclusions on the contract. They also presented a copy of SeC with my name with it but it was registered after my termination. Does my probationary contract still valid for this grounds and my involvement with the new company will affect the case even it was registered after my termination? On their side they are saying hat I was involve during my employment which is very impossible because I am under complete bedrest. Hope to have a response from you. Thank you very much!

    [Reply]

    May Reply:

    I already have the copy of their position paper, they only include the probationary contract that I signed last august 2007, signed was only the first page. The 2nd and third page where the job respobilities and nda/ncc were indicated. It’s just the last 2 pages were not they had given me then. I don’t have a copy of that contract. Do I have a fight on this one? Thanks!!

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  2. I received a just cause memorandum and got suspended for 5 days. they presented the memo and escorted me out of the company. This is due to the incident report filed by my co-trainees but most of them confessed that they were forced to sign. In the incident report highlighted was an incident filed more than 20 days. accusing me for grave threats after replying to a racial discrimination. He said NEFUTS are stupid igorots living in the mountains. and i said i just do not know if u can still go back to my hometown if they hear what you said.

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  3. Good Day,

    I’ve been placed under preventive suspension from the company i worked, i am a branch manager of this company, we are engage in marketing ( selling motorcycles ( in house financing scheme) i approve to release 10 units of motorcycle to the company which was our repeat buyer for the same items, my mistake is i agree with the buyer to give their down payment after 1 month including the first monthly amortization ( the policy is the down payment should be paid before the release of the items),the reason is the close competition from other marketing, since our price is higher than the others, after a month the buyer failed to do their payment in the first month and then the second month,but the buyer promised to settle their obligation to my company, but my company has been questioned my decision regarding this account of customer, and that is the result they placed me under preventive suspension, I don’t touch any money from the company or even to harm the operation of the branch. it is the first time i did this kind of mistake. It is legal to placed me under preventive suspension? what if my company dismiss my employment, what is my rights in this case? i will appreciate to hear your reply…

    thanks..

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  4. Ulysses Rallon Comment:
    February 15th, 2012 at 08:58 am

    Greetings!
    This is only an inquiry. if anybody can give me a sound advise it would be very much appreciated. i am working in a public hospital and in-charged of the OPD. we have a long staanding policy and procedure that we will accomodate only 20 patients in the morning and 20 patients in the afternoon. one day an arrogant patient who came late in the morning insisted to be examined even if she is already beyond the limit for the morning. she was respectfully accomodated by our nurses and was advised that she will be the no.1 patient in the afternoon session but still she was shouting invictives to our staff. our cashier, who is a union leader and an avid critic of the administration called the angry lady brought her into her office but instead of pacifying her instigated her to file a complaint and in fact personally typed and printed the said complaint and personally accompanied said lady to the city hall to file such complaint to the politician by passing all the established avenues in the hospital where all issues and complaints and tackled and resolved within the hospital level. this is the most recent act this cashier had done and numerous similar incidents in past she had also stirred up causing damage to the hospital’s standing and reputation. she has become undesirable to most of the other hospital staff because its as if she is monitoring every bit of issue that she may stir, exagerate and amplify to the detriment of the whole institution. please advise us what can be done in this situation when she as our subordinate uses her political connections and influence just to undermine the management and administration. please help. thank you so much.

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  5. ang pagmumura ba sa employer can be a cause for termination? may makukuha ba kapag naterminate on this ground? thanks!

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  6. Joe Manalastas Comment:
    June 22nd, 2012 at 10:18 pm

    Hi sir, i am currently working on a private school and im very much aware of this misconduct issue… im having difficulty with our principal right now. She treated as ordinary person on her part. professionally we are teachers and we have our code of ethics. She acted not a professional. one good example of this is she scold us infront of many people particularly parents and students. She also do hidden agendas and yet we have no power and rights to say everything. this is the big problem in our part. How can we stop her from doing to us?

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  7. Hi,
    Manager ang kapatid ko ng isang motorsales company.
    Meron malaking pera nawawala sa funds ng collection and he admits he had used them for personal purposes and he is finding means to return pero hindi nya po kaya ng buo.

    Ano po pwedeng gawin ng brother ko para hindi cya makulong? willing po cya magbayad ng dahan dahan .

    mateterminate po ba cya?

    [Reply]

    admin Reply:

    He must negotiate with management. That’s the only way. It is a ground for termination, and a crime.

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    rodelio del rosario Reply:

    the case of your brother is called malveration

    [Reply]

  8. noel ramelo Comment:
    July 28th, 2012 at 06:17 am

    ako po ay nagtatrabo sa isang pribadong pagawaan ng baril ang sweldo namin ay porsyento pero hindi pinapapakita sa amin ang computation,wala kaming 13th month pay at holiday pay,ang working hours namin ay 10 hours kung kulang sa 10 hours ang oras sa isang araw ay babawasan ang sweldo ng divided by 60,kasi 60 hours ang kailangan naming buuhin sa isang linggo,pinpilit kaming pagsuotin ng uniform pero babayaran namin ang uniform,may kinakaltas sa amin na 250 pesos swa isang linggo para daw may sepparation pay kami pag kami umalis na sa trabaho,tama po ba ginagawa ng kumpanya namin.

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  9. To the Administrators: please answer the queries being sent to your website. Your response, favorable or not, might pave a way for the readers to be enlightened with the issues they are facing at hand. Even if the questions are already familiar, or the answers may be obvious, an advise coming from the experts on this web site can still make a difference on how these readers see things. Hope you’ll take this as a positive feedback. Thank you.

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  10. rodelio del rosario Comment:
    August 20th, 2012 at 10:13 pm

    malveration ang kaso ng kapatid mo.

    [Reply]

  11. Hi,
    I’m currently a supervisor in a company who was given a notice to explain by my manager and HR personnel about Incident Reports filed against me. The alleged violations are sarcastic and rude,with favoritism,unapproachable and shouting to agents in front of others. Our head in the office or HR personnel doesn’t have signature on the document approving it.I also asked for the details of the incident reports but they said its confidential. The document says possible termination as sanction and they placed this Labor code Art 282 as my violation. Would this be enough to terminate my employment?

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  12. hi
    my sister is having a problem right now with her employer, she is the payroll officer and she has been suspended for 15 days with out pay due to DISHONESTY. may mga utang kasi yong mga employees sa company kac involve sa trading yong business nila tapos maliliit yong mga nilalagay niyang deductions sa payroll compared don sa utang nila pero it was with consent of the manager…would this be enough para e terminate nila ang sister ko?

    [Reply]

  13. To the admin,
    tanong lang po ang kapatid ko po ay kasalukuyan nag tatarabaho sa loan agency . na terminate po cia sa kadahilanan ng company na hinahanap siya ng discrepancy between reported interest vs actual interest.At mga resibo sa nakita nila excess payment na sinasabi nilang ginalaw ng kapatid ko.Tinanggap ng kapatid ko yon termination pero ang hindi nya matanggap ay yon pagbayarin pa cia ng company don sa interets income. Wala na nga raw cia seperated fee. gusto ko pong matulungan ang kapatid ko saan po ba kami pwede lumapit para maibigay ang ganito problem.
    Wala po kasi siyang pera pambayad

    [Reply]

  14. gusto ko pong matulungan ang kapatid ko na kasalukuyan nagkakaproblem. naterminate na po cia at tanggap po niya
    ang hinidi po niya matanggap un pagbayarin siya sa halagang wala naman sa kanya.Wala po siyang pera sa ngayon san po ba siya dapat humingin ng tulong para sa ganitong problem. terminate na nga naman siya gusto niya ireopen un kaso san po pa ba pwede humingin na tulong

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  15. nino arceta Comment:
    March 4th, 2013 at 03:59 pm

    i am a security guard and i was dismissed due to serious misconduct and willful breach of trust according to my employer. the incidence below is the reason why i was dismissed.

    “i went to another post which is a bank after my tour of duty has ended to gather evidence to prove to my employer that my supervisor is bias since he assigned a resigned guard in the said bank despite of his resignation had took effect. i asked the logbook of the guard on duty for me to confirm if the resigned guard tendered his duty and he freely offered it to me so i took picture of one of the page of his logbook where the name of the resigned guard is found. while i took picture on his logbook,the guard never complained.i left the said post and thanked my co-guard.in the following day,my supervisor came to know what i have done and i was placed under preventive suspension until i was dismissed.”

    may i asked if the case above tantamount SERIOUS MISCONDUCT AND WILLFUL BREACH OF TRUST. thank you!!!

    GOD BLESS!!!

    [Reply]

  16. Na-terminate po kasi ako dahil sa ginawa ko nilagay ko sa module namin UNintentionally ung “WALANG PATAWAD GRABEEEEEE” . ginawa ko lang po un parang outlet na gumaan pakiramdam ko dahil sa araw-araw na required o.t namin which is hindi na maganda ag nagiging epekto sa katawan ko po. okay na po sakin un but the thing is hindi po nila binigay ung sahod ko ng isang buong cut off na pinasok ko bago pa man magawa ko ung kasalanan na un. Ano po bang dapat kong gawin? syempre po kailangan din namin ung perang un.

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  17. can i ask f tama po b n sundin q cl n mgfile me ng voluntary resignation…my mga memo n po me nreceive bale 2 n un dahil s mga absences at late ko…tpos po now gusto nila me mag resign kesa daw madismiss para in case n mag apply me s iba wl daw bad background.regular employee po me now,3rd memo ko p lng un tpos ground dun s rules dto s co. ay suspension for 15 days kso gusto nila n mgresign na me…tama po b un?nid q po ng work kz i have 5 kids,pno n po cl?and isa pa mdmi utang at loans?i need an advice…pls help me…thanks…

    [Reply]

    ghie Reply:

    pls ask my question nman po…pwd nio po me ie-mail…thanks a lot…

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  18. I’ m currently under preventive suspension for gross negligence..can I apply for another job while i’m on my 30 day suspension..? if ever hired, can i resign immediately..pls.. i really need an answer..since i really the monthly income for my family…thank you

    [Reply]

  19. yes.

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  20. gudpm…i just want to verify dahil s galit ko s isang tao s ginawa nya s parents ko na voice out ko lhat sknya lhat ng naitulong ng mother ko s knya….tulad ng ni rape sya ng papa nya mama ko ang nagtulong sknya…she can use that to file me slander n administrative case grave misconduct…

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  21. My Husband was verbally abused by one of his workmates. It all started when he and his tl were joking about an employee and her tardiness. They have proof since this employee has a bad record with attendance and lates. One of this employee’s friends told her this but it was originally meant as a joke. The employee took this seriously and talked with my husband through chat , cursing him, degrading him even stating that she was the better than he is. My husband apologized through email and admitted his fault. I guess cursing my husband was not enough for this girl. the next day, she confronted my husband and was humiliating him in front of their officemates. telling him that he was gay, and was continuously cursing him. The friends of the girl piled on and posted stuff on facebook. My husband was not minding them at all but this time they’ve gone too far. He’s planning to file this case in their HR. What do you think would be case to file?

    Thank you

    [Reply]

    Atty Reply:

    The complaint you can file in the HR will depend on company policies.

    You can try to file a LIBEL case against the girl and her friends. Save all the chats and facebook messages. The case will have to be filed in the prosecutor’s office, tho. Ask a lawyer.

    [Reply]

  22. Hi Ma’am/Sir,

    Nahuli kopo sa recorded cctv ang employee na dumura sa lagayan ng tubig ng isang ka department nila at etoy na inom. pwedi bang ground eto ng termination?

    salamt po

    [Reply]

  23. gd day. an employee of ours went back to d office (medical records section)in the middle of the night around 12:30am which is beyond her duty hours to get the certificate of our patient (which happens to be her relative)without the knowledge of her head/ supervisor and the guard was the one whom she asked authorization to get in the office. can we suspend the employee? on what grounds since we have not specifically indicated in our set of offenses regarding entering offices beyond duty hours without the knowledge of heads or supervisor.

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  24. I have been serving an academic institution for more than 3 years as a contractual teacher. Prior to my employment, I have been separated with my estranged husband for 11 years, because of an extramarital affair that I found out, and is waiting for the result of the annulment filed by him, which we agreed upon because he will shoulder the expenses…I have also been with a new partner for 8 years with whom I had three kids When temporary positions opened last summer, I was one of those considered. I placed in my personal data sheet those details and passed the initial, until the final interview, where my paper was okayed by the President of the company… I finished all the necessary paper works relative to my application and there are some administrators who already signed it…when I was about to go to the main branch to submit all the completed papers, and was signed by the branch’ head, I was informed that I am not considered anymore because of my marital status or current condition… I was taken by surprised and became depressed, because I had to borrow money to finance the processing all my requirements and felt devastated because all my colleagues know about the temporary position being offered to me and to have it revoked after more than a month of finishing all the papers, and so was subjected to social pity… I was also warned that I will be removed from service after my contract expires if my annulment will not be finished… I don’t know what to do? I don’t know if I have a right to fight for…Please do advise me regarding this matter… I have 4 kids I am sending to school, one of them in college and my partner is working as a driver… i do hope that someone can help me especially that I am not confident that the annulment will be decided anytime soon, thanks a lot.

    [Reply]

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  1. […] causes for termination under the Labor Code is found in Article 282 and enumerated here as follows: Serious misconduct. Serious misconduct is an improper conduct willful in character and of such grave nature that […]