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ARTICLE 282 A OF THE LABOR CODE

Article 282. Termination by employer. - An employer may terminate an employment for any of the
following causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or
representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly
authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representative; and

(e) Other causes analogous to the foregoing.

Serious misconduct. Serious misconduct is an improper conduct willful in character and of such grave
nature that transgressed some established and definite rule of action in relation to the employee’s work

Fraud or willful breach of trust / Loss of confidence. Fraud is any act, omission, or concealment which
involves a breach of legal duty, trust, or confidence justly reposed and is injurious to another.

SERIOUS MISCONDUCT

“The issue being the legality of petitioners dismissal, the same must be measured against the
requisites for a valid dismissal, namely: (a) the employee must be afforded due process, i.e., he
must be given an opportunity to be heard and to defend himself, and; (b) the dismissal must be for
a valid cause as provided in Article 282 of the Labor Code.[29] Without the concurrence of this twin
requirements, the termination would, in the eyes of the law, be illegal.[30]
Before the services of an employee can be validly terminated, Article 277 (b) of the Labor
Code and Section 2, Rule XXIII, Book V of the Rules Implementing the Labor Code further require
the employer to furnish the employee with two (2) written notices, to wit: (a) a written notice
served on the employee specifying the ground or grounds for termination, and giving to said
employee reasonable opportunity within which to explain his side; and, (b) a written notice of
termination served on the employee indicating that upon due consideration of all the
circumstances, grounds have been established to justify his termination.”

“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.[43] For misconduct to be considered
serious it must be of such grave and aggravated character and not merely trivial or unimportant.”
(Austria vs. NLRC, G.R. No. 124382, August 16, 1999.)

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“Under the Labor Code, there are twin requirements to justify a valid dismissal from
employment: (a) the dismissal must be for any of the causes provided in Article 282 of
the Labor Code (substantive aspect) and (b) the employee must be given an opportunity
to be heard and to defend himself (procedural aspect). [7] The procedural aspect requires
that the employee be given two written notices before she is terminated consisting of a
notice which apprises the employee of the particular acts/omissions for which the
dismissal is sought and the subsequent notice which informs the employee of the
employers decision to dismiss him.”
“Misconduct is improper or wrongful 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 of judgment. [9] Under Article 282
of the Labor Code, the misconduct, to be a just cause for termination, must be serious.
This implies that it must be of such grave and aggravated character and not merely trivial
or unimportant.[10] Examples of serious misconduct justifying termination, as held in some
of our decisions, include: sexual harassment (the managers act of fondling the hands,
massaging the shoulder and caressing the nape of a secretary);[11] fighting within company
premises;[12] uttering obscene, insulting or offensive words against a
superior; misrepresenting that a student is his nephew and pressuring and intimidating
[13]

a co-teacher to change that students failing grade to passing.[14]”


“Assuming arguendo that she did fail to report for work on April 1, 1996 and enroll
during the first semester, the most respondent could be charged with was simple
misconduct. In both instances, there was evidence of substantial compliance by
respondent.”
“With regard to her alleged failure to enroll during the first semester, although we
agree with the President and Rector, Fr. Mendez, that respondent should have first
ascertained whether she was still eligible to study at the PWU before applying for a study
leave,[17] such lapse was more of an error in judgment rather than an act of serious
misconduct. If respondent intended to use her study leave for other unauthorized
purposes, as petitioner would like us to believe, she would not have enrolled at the Golden
Gate Colleges during the second semester. Yet she did, as borne out by the
certification[18] prepared by the Registrar of Golden Gate Colleges.”
(Colegio de San Juan de Letran-Calamba vs. Villas, G.R. No. 137795, March 26, 2003)
ARTICLE 282 C OF THE LABOR CODE

FRAUD/ WILLFUL BREACH OF TRUST

Fraud Meaning.
Fraud is any act, omission, or concealment which involves a breach of legal duty, trust, or confidence justly
reposed and is injurious to another.
Breach of Trust Meaning.
Breach of trust refers to the violation by the employee of the trust and confidence reposed in him by his
employer or duly authorized representative.
Elements of Loss of Confidence.
To determine whether the termination of employment based on loss of confidence is justified, the
following elements are generally considered:
1. Whether the fraud or breach of trust is in connection to the employee’s work; and
2. Whether the employee concerned is holding a position of trust and confidence.
Fraud or Breach must be in Connection to Employee’s Work.
To constitute just cause, fraud or breach of trust must be committed in connection with the employee’s
work or related to the performance of the employee’s functions.
Employee must Hold Position of Trust and Confidence.
The basic premise for dismissal on the ground of loss of confidence is that the employee concerned holds
a position of trust and confidence. It is the breach of this trust that results in the employer’s loss of
confidence in the employee. (See Nat’l Sugar Refineries Corp. vs. NLRC, G.R. No. 122277 February 24,
1998.)
Thus, loss of confidence ideally applies only to cases involving employee occupying positions of trust and
confidence, e.g., managerial employees, and those situations where the employee is routinely charged
with the care and custody of the employer’s money or property, e.g., cashiers, auditors, property
custodian, etc.
Title not Conclusive Indicator of Trust and Confidence.
However, the title or appellation of the employee’s position is not a conclusive indicator as to whether or
not an employee holds a position of trust and confidence. The determination should hinge on the
authority actually possessed by employee.
Breach of Trust must be Willful.
Ordinary breach will not suffice. It must be willful and without justifiable excuse, there must be basis
therefor, and it must be supported by substantial evidence and not merely by the whims or caprice of the
employer. (See Falguera vs. Linsangan, G.R. No. 114848 December 14, 1995.)

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