Habitual violations

- Jose C. Sison (The Philippine Star) - March 6, 2013 - 12:00am

Can past infractions already penalized be still considered in penalizing an employee who again commits another similar infraction? This is the issue raised by Nardo in his case.

Nardo was a bus conductor in a bus transportation company (PRBLI) with a salary of P510 per trip. In one of the trips, he was caught by the bus inspector extending a free ride to a police officer. When investigated and told to explain, he said that the police officer was on duty and refused to pay the fare. For this infraction, Nardo was suspended for 30 days and warned no to repeat the same. But barely a year later he was again caught extending a free ride to a former employee. This time he said that the employee misrepresented himself to be a current employee by virtue of a company ID he presented to him, so he gave him a free ride. Nevertheless for such infraction he was again suspended with the same warning.

For the third time, however, while on duty en route from Manila to Pangasinan, Nardo was again caught by the field inspector extending a free ride to the wife of a co-driver of the bus company who did not have a free pass. So, upon order of the inspector, the wife was immediately issued a passenger ticket for which she paid P50.

So Nardo was again preventively suspended and directed to appear in an administrative investigation. At the hearing, Nardo explained that he gave a free ride to the wife because of gratitude to her who assisted him in his financial troubles. He admitted that what he had done was a grave offense and he was ready to accept whatever suspension the company may impose. But this time instead of merely suspending him, the bus company terminated his employment for committing a serious irregularity for the third time.

Nardo questioned his dismissal as illegal in a complaint filed with the NLRC. He argued that the penalty of dismissal is grossly disproportionate to the infraction he committed because his act of extending a free ride was not deliberate and was done on a wrong assumption that immediate family members of company employees are entitled to free rides. He insisted that his previous two offenses of not issuing fare tickets to a police officer and a former company employee cannot be used as bases for his termination considering that his actuations for those offenses were justified under the circumstances and that he was already penalized for all these past violations. He said that his last infraction should merit only a 30-day suspension.

And the Labor Arbiter (LA) agreed with him. The LA declared that Nardo was illegally dismissed. The LA opined that his actuations merited a less punitive penalty such as suspension for 30 days which he already served during his preventive suspension. So the LA ordered Nardo’s reinstatement without loss of seniority rights, payment of back-wages, 13th month pay and refund of the bond. Was the LA correct?

No.  Nardo was aware that the infraction he committed constituted a grave offense but he still insisted in committing the same out of gratitude to the passenger. There was deliberate intent on his part to commit the violation in order to repay a personal debt at the expense of the company. He chose to violate company rules for his benefit without regard to his responsibilities to the company. If not for the inspector who discovered the incident, the company would have been defrauded of the transportation fare.

Nardo ought to have known better than to repeat the same violation as he is presumed to be thoroughly acquainted with the prohibitions and restrictions against extending free rides. As a bus conductor, whose duties primarily include the collection of transportation fares, which is the lifeblood of the company, he should have exercised the required diligence in the performance thereof. So his habitual failure to exercise such diligence is not trivial and cannot be taken for granted.

Although Nardo already suffered the corresponding penalties for his past misconduct, those infractions are still relevant in assessing his liability for the last violation in order to determine the appropriate penalty. To sustain Nardo’s argument that past violation should no longer be considered is to disregard the warning previously issued to him. His position is imbued with trust and confidence because it involves handling money and failure to collect the proper fare from the riding public constitutes a grave offense which justifies dismissal (Mapili vs. Philippine Rabbit Bus Lines Inc., G.R. 172506, July 27, 2011).

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Our e-mail address:attyjosesison@gmail.com


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