Loss of Trust and Confidence Cannot be Invoked on Mere Uncorroborated Assertion and Accusation; Sample Notice to Explain
Loss of trust and confidence, to constitute a sufficient ground for termination, the employer must have a reasonable ground to believe, if not to entertain the moral conviction, that the employee was responsible for the misconduct, and that the nature of his participation therein rendered him absolutely unworthy of the trust and confidence demanded by his position. (See page 182, Guide to Valid Dismissal of Employees, 2nd Edition, Samar-Med Distribution vs. NLRC, G.R. No. 162385, July 15, 2013)
In the case of Bravo vs. Urios College (G.R. No. 198066, June 07, 2017) this ground requires the employer to not only demonstrate that the employee concerned is holding a position of trust, but also prove the existence of an act justifying the supposed loss of trust and confidence.
Further, the SC held that PJ Lhuillier, Inc. vs. Camacho declares that there should be proof of involvement in the events in question, and that mere uncorroborated assertion and accusation by the employer will not suffice. Wesleyan University-Philippines vs. Reyes, citing General Bank & Trust Company vs. Court of Appeals, warns that it may not be used as a subterfuge for causes which are improper, illegal, or unjustified, nor arbitrarily asserted in the face of overwhelming evidence to the contrary. More importantly, its assertion as a ground for termination must be genuine, and not a mere afterthought to justify an earlier action taken in bad faith. (PNOC Development and Management Corporation (PDMC) vs. Gomez G.R. Nos. 220526-27, July 29, 2019)
Indeed, according to the SC, this ground must be employed with much caution, lest it be open to abuse in curtailment of rights to security of tenure.
Below is the Sample Notice to Explain for Loss of Trust and Confidence involving an HR Manager who overpriced the food for the Christmas Party, among others:
To: MA. JUSAY R. UMAKET
Manager, HR
From: Office of the President
Date: December ____, 20____
Subject: NOTICE TO EXPLAIN WITH PREVENTIVE SUSPENSION
This refers to the report that there was an overprice of the price of the food per head during the Christmas Party. You were the one in charge of the negotiation with the catering services.
It appears on record that the price per head which you approved was PhP890.00 while it turns out that it was actually PhP490.00. The supervisor in the catering service presented the original quotation showing the same food items and bearing only P490.00 and not PhP890.00
Likewise, market comparison with the component of the menu confirms that more or less the value of the food is within the PhP490.00 range.
In addition, it was found that as HR Manager you have been taking home the HR Manuals of the company without prior authority from the management. One of your staffs revealed that you made her to re-type the provisions thereof and that you used the manual in your consulting work with other companies.
In this regard, please explain in writing within five (5) calendar days from receipt of this notice why no disciplinary action should be taken against you for the above. Further, you are hereby being placed on preventive suspension effective immediately upon receipt of this notice.
For your strict compliance.
GAL I. ITSASTAFA
President
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