in termination

of employment

especially in the imposition of penalty

the principle of discretionary justice

is very important

so we have to discuss this one

what is this principle

this principle has been laid down by the

supreme court

in order to temper management

prerogative to discipline and terminate

an employee

in the line of jurisprudence the supreme

court emphasized that in carrying out

the penalty

the standard must be reasonable

and the penalty that is imposed

must be commensurate to the offense

otherwise there will be injustice

remember that social legislation

labor law being a social legislation

favors a particular group the

unprivileged

working class

so this principle of discretionary

justice is in line with that

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principle of social legislation

according to the supreme court

in the case of

almirah vs bf

goodrich
when append where a penalty less severe

would suffice

whatever missteps may be committed by

labor or not to be visited with the

consequence or severe

it is not only because of laws concern

for the working men

but you have to consider that

if the employee is terminated you also

have a family

waiting

and in need of food clothing

shelter and medicine

so if you terminate an employee you will

not

only make one in one person suffer

but the entire family

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so in line with this ruling management

is encouraged to exercise its

prerogative

that in the imposition of penalty

the less hearts

should be imposed termination

would only be the penalty of last resort

unless it is validly justified

so if the penalty that is imposed is too

harsh

then the laborer can go to court and

have the termination declared

illegal

an employee
who refuse to undergo drug test because

the policy is obeying

it is not properly defined what is

unjust refusal

according to the supreme court in the

case of miranda

philippines corporation and bautista vs

jose litocaro octo 23 2014

the supreme court ruled that the

employees should not be terminated

the supreme court only imposed

suspension without pay

for formats

the rule of commensurateness of the

penalty

to the offense charges also very

important criteria

if the penalty if the offense is

light or less serious the penalty

the maximum penalty should not be

imposed

so it could either be suspension for a

number of days

or for light offenses the first offense

should merit only reprimand

beside the oral or in lighting

so we have to observe gradation of

penalty

and it must commensurate to the offense

charge which means that the light

offense must be meeted with light

penalty
in fact the supreme court in

applying the principle of discretionary

justice

use or imported the principle

of aggravating and mitigating

circumstances

in the case of narcissomates versus

meralco

in this case

length of time

length of service would show

that the employee has been loyal

to the employer

so which means that the longer you

stayed in the company

and you betrayed the trust reposed in

your

repost on you by the employer

that would be considered as aggravating

circumstance

you are expected that the longer you

stay

in the company the more you should be

loyal

and the company has already invested

trust and confidence

over the employee

on the other hand the length of service

was considered mitigating circumstances

in the case of universal robina sugar

milling corporation

apply it
in this case the employees were

terminated

and their jobs and they were performing

jobs

as equipment operators technicians and

electricians

and the incident involved

damage to a forklift

and it was only their first offense

so looking at the length of service of

the employee

and the nature of the offense then it

was

committed for the first time when the

supreme court

ruled that termination should not be

proper

that's the principle of discretionary

justice

to sum it up

when you talk of application of this

principle

the policy or the source

of discipline which is a company policy

or code of discipline

it must be reasonable

and the penalty must be commensurate to

the offense

third the termination of employee

must be the last resort

and if you are going to analyze the just

or authorized courses
if you read the letter of the law

the just and authorized courses

give the employer the discretion

because it provides that the employer

may

terminate which means that

the employer can exercise his or her

description

on whether or not to terminate the

employee

or use his description to impose

lesser offense

in applying the principle of

discretionary justice

other than the policy that is reasonable

we should also include

the appreciation of

mitigating and

are waiting circumstances

when you talk of aggravating or

mitigating circumstances

the length of service should be

considered as to whether the offense was

committed for the first time

that's another factor to consider

so if the employee has been working for

20 long years

has been loyal to the company but just

because of one misstep

or offense it is not proper

to terminate the employee

so the length of service should be

appreciated

as mitigating circumstance

because the offense does not involve

betrayal of trust

however if it is betrayal of trust then

the longer

the time that the employee spent with

the employer

shall be considered as

circumstance so those are the factors

that you have to remember

in applying the principle of

discretionary justice

again the policy must be reasonable the

penalty must be commensurate to the

offense

and termination must be the last resort

and the employer must appreciate

mitigating and aggravating circumstances

let's go to the discerning compassion

doctrine

this is a situation where an employee is

terminated

however the supreme court requires the

employer to give financial assistance

this is a form of

compassion to the worker who is

terminated

however there is a qualification

that in order for

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financial assistance to be given to the

employee

the ad committed with the employee is

not

serious misconduct and it did not

reflect the moral character

of the employee

in the case of what manila water company

versus de rosario january 29 2014

the supreme court allowed the giving

of financial assistance as a measure of

social justice

however according supreme court

the basis for termination of the

employee

must not be serious miscanda will for

disobedience

gross and habitual neglect of duty

fraud or willful breach of trust

commission of a crime against the

employer or

his family or those reflecting

the moral character

so if the employee committed

gross negligence but not

habitual then the employee can be

terminated

and it is but proper that the employer

should give financial assistance

5 000

because the law requires that the act

must be considered gross

and habitual in character the act of

neglect must be cross and evitable in

character so if it is gross

but it in terms of amount as in the case

of abc

where the amount of the loss of

motorcycle is

40 000 plus it was considered a ground

to terminate

since it was not habitual

it's only gross neglect then you have to

give

5 000. if it is gross and habitual

neglect

then the employer should not give 5 000.

if the employee is grossly inefficient

involved in the use of illegal drugs

then you cannot be compelled to give

financial assistance of 505 000

so just go ahead and terminate the

employee

however there is one case of digital

telecommunication philippines

incorporated

versus ayapanna january 10

2018 when the supreme court granted a

higher amount

the court run the separation by one

month

to the employee who was terminated based

on willful breach of trust however

this is a unique situation

where the employee according supreme

court was just

compelled or just acting

due to jealousy in acquiring and

retaining subscribers

and not to misappropriate company funds

secondly there was no moral depravity in

the part of the employee

in fact he has been a recipient of

certificate of commendation

from the company or from the employer

in years 2001 and 2002

being an outstanding account manager

and he was even granted promotional

increases

so there were other considerations in

this case which founded the supreme

court to give

the amount of one month salary to the

employee as a form of financial

assistance so it may not be only 5 000

so if there is a similar case or

a theoretical question

similar in nature to the one that i

mentioned

then the 5000 rule will not apply but a

one month

salary

so in other words the principle of

discretionary justice

on a discerning compassion doctrine

as a form of social equity requires the

employer to give
financial assistance to an employee who

is terminated

in order for the employee to

find another employment to secure all

other appearances

as it may be required by the next

employer

and also for the time that he has no

employment

at least he has money to feed his family

and provide their needs

always remember the discerning

compassion doctrine applies

invalid dismissal based on just

cause only not in authorized

causes take note of the limitation

that the ground or the jazz cost must

add

must be other than serious misconduct

disobedience gross and habitual neglect

of duty

fraud trust commission of a crime

against the employer or his family or

those

reflecting on his moral character