Habituality in Gross and Habitual Neglect is Disregarded if Loss is Substantial
That for negligence to be a valid ground, it must be “gross and habitual” is only a general rule. Where damage or loss is substantial, the element of habituality may be disregarded.
Thus, in a case where the bank suffered actual loss in the amount of P50,000.00 which is part of the P200,000.00 left by a bank teller fully exposed in her counter on a payday in the presence of depositors milling around, the dismissal of the bank teller for her negligent act was held justified. Although the teller’s infraction was not habitual, a substantial amount of money was lost.
Negligence which resulted in the death of a pupil during a swimming class, although gross, was not habitual. In view of the considerable resultant damage, however, the High Court ruled that the cause is sufficient to dismiss employee.
The element of habituality may also be disregarded if considering the pieces of evidence in the case, dismissal is justified.
If after considering the totality of the evidence presented in a case, it is shown that dismissal is justified
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and warranted, the law does not make any distinction between first offender and habitual offender.
The question is whether it is necessary for the employer to prove actual damages incurred before an employee can be held liable for his negligence.
To justify the dismissal of an employee for negligence, the act must not only be gross but also habitual, although it is not necessary that the employer show that he has incurred actual loss, damage or prejudice by reason of the employee’s conduct.
Absence alone, as a rule, does not justify the employee dismissal. Let alone when such absence is authorized by the employer or there is a valid excuse thereto as shown by a medical certificate.
Dismissal of an employee due to his prolonged absence with leave by reason of illness duly established by the presentation of a medical certificate is not justified.
In the case of Genuino Ice Company vs. Magpantay, absence of four (4) days was declared not 
tantamount to gross and habitual neglect of duty. The Supreme Court upheld the Court of Appeals in finding that the employee has never been proven to be habitually absent in a span of seven (7) years as the company’s employee.
Further, employee’s dismissal from employment for incurring five (5) absences in April 1993, three (3) absences in May 1993 and four (4) absences in June 1993, even if true, is too harsh a penalty.
The Supreme Court upheld the findings of the NLRC that outright dismissal is too harsh a penalty for an employee who committed a minor offense regarding his attendance. Thus:
“These facts which were alleged in private re- spondent’s position paper, were not controverted by petitioner correctly observed by the Labor Arbiter, private respondent should have been given a warn- ing first, then a reprimand or even suspension but certainly, not outright dismissal from employment. While public respondent NLRC found that private respondent committed a minor procedural infrac- tion when he went on sick leave from November 22, 1988 to December 16, 1988 without officially informing management or his immediate supervi- sor, the same cannot reasonably justify the pen- alty of outright dismissal from his employment, considering that he filed a one-day vacation leave on the first day of his sickness, not foreseeing that the company’s physician would later advise him to rest for 25 days. On December 9, 1988 he presented his medical certificate to his immediate supervisor.” [Emphasis supplied]
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 a case where the employee committed several absences and tardiness but was never penalized thereon, it was held that said infractions can be used collectively by the company as a ground for dismissal.
The Supreme Court, in affirming the finding of valid dismissal held that the employee’s repeated and continuous absences without prior leave and his frequent tardiness within the last two months prior to his dismissal exemplify his utter disregard for his employment and his employer’s interest.
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