AT A GLANCE:

Habitual tardiness and absenteeism constitutes “gross and habitual neglect,” which is a just cause by which employers may terminate employees.

Can Habitual Tardiness Be a Form of Neglect of Duty?

Yes. In R.B. Michael Press, et al. v. Nicasio Galit, G.R. No. 153510, February 13, 2008, the Supreme Court defined habitual tardiness as 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 the case of R.B. Michael Press, et al. v. Nicasio Galit, the Supreme Court found that tardiness for 190 times, and absence from work without leave for a total of nine and one-half (9½)  for a period of less than two years constitute neglect of duty. 

Similarly, in Mansion Printing Center v. Bitara, GR 168120, January 25, 2012, further quantifies habitual tardiness. In this case, Bitara’s weekly time record for the first quarter of the year 2000 revealed that he came late 19 times out of 47 times he reported for work. He also incurred 19 absences out of 66 working days during the quarter. His absences without prior notice and approval from March 11 to 16, 2000 were considered to be the most serious infraction of all because of its adverse effect on business operations.

These cases demonstrate that repeated tardiness and absenteeism may constitute neglect of duty when the frequency, repetition, duration, and circumstances of the attendance violations show a serious failure to comply with the employee’s duties.

When Does Habitual Tardiness or Absenteeism Constitute a Just Cause for Dismissal?

Under Article 297 of the Labor Code of the Philippines, an employer may terminate an employment for:

xxx

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

xxx

Under the Omnibus Rules Implementing the Labor Code of the Philippines, to be a valid ground for termination, the following must be present: 

1. There must be neglect of duty; and
2. The negligence must be both gross and habitual in character.

In Ricardo Sy, et al. v. NEAT Inc., GR No 213748, November 27, 2017, the Supreme Court held that to be terminated due to neglect of duty, such neglect of duty must not only be gross but also habitual, to wit: 

“As a just cause for termination of employment, on the other hand, the neglect of duties must not only be gross but habitual as well. Gross negligence means an absence of that diligence that a reasonably prudent man would use in his own affairs, and connotes want of care in the performance of one’s duties. Habitual neglect implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances. A single or isolated act of negligence does not constitute a just cause for the dismissal of the employee.”

Accordingly, a single or isolated instance of tardiness or absenteeism does not constitute gross and habitual neglect of duty. The employer must establish repeated neglect occurring over a period of time and demonstrate circumstances showing that the neglect is sufficiently serious to warrant termination.

Is Habitual Tardiness Alone Sufficient to Justify Dismissal?

The Supreme Court has recognized that habitual tardiness may, in itself, constitute a just cause for termination. In Systems and Plan Integrator and Development Corporation v. Ballesteros,G.R. No. 217119, April 25, 2022,  the Supreme Court held that: 

“Habitual tardiness alone is a just cause for termination. Punctuality is a reasonable standard imposed on every employee, whether in government or private sector, whereas habitual tardiness is a serious offense that may very well constitute gross or habitual neglect of duty, a just cause to dismiss a regular employee.  Habitual tardiness manifests lack of initiative, diligence and discipline that are inimical to the employer’s general productivity and business interest.”

What About Habitual Absenteeism?

Repeated absenteeism may constitute gross and habitual neglect of duty when sufficiently established by the evidence.

In Systems and Plan Integrator and Development Corporation v. Ballesteros, the employer dismissed the employee on the ground of, among others, habitual leaves of absence or gross habitual neglect of duty. The Supreme Court, however, agreed with the Court of Appeals that the employer failed to present substantial evidence to prove that the employee was habitually absent. The Court noted that the employee had incurred only 1.5 vacation leaves and 11 sick leaves from January 2008 to July 7, 2008, which had also been deducted from her earned leave credits. The Court held that it could not be said that she repeatedly neglected her duty because she had been absent for a total of only 12.5 days over a period of six months and one week.

Thus, the fact that an employee has incurred absences does not, by itself, establish habitual neglect of duty. The circumstances and evidence relating to the absences must still be considered.

What Must the Employer Prove?

In Systems and Plan Integrator and Development Corporation v. Ballesteros, the Supreme Court specifically found that the employer failed to substantiate the employee’s alleged habitual tardiness and undertime because the records presented consisted merely of photocopies and unauthenticated computer print-outs. The Court had previously rejected handwritten listings and unsigned computer print-outs as unreliable and insufficient to establish absenteeism and tardiness.

The Court stated:

“In the case at bar, there is paucity of evidence to establish the charges of absenteeism and tardiness. We note that the employer company submitted mere handwritten listing and computer print-outs. The handwritten listing was not signed by the one who made the same. As regards the print-outs, while the listing was computer generated, the entries of time and other annotations were again handwritten and unsigned.

 

We find that the handwritten listing and unsigned computer print-outs were unauthenticated and, hence, unreliable. Mere self-serving evidence of which the listing and print-outs are of that nature should be rejected as evidence without any rational probative value even in administrative proceedings.”

Thus, while habitual tardiness and repeated absenteeism may constitute gross and habitual neglect of duty under Article 297(b) of the Labor Code, dismissal is not automatic. The employer must establish both the habitual nature of the neglect and the evidentiary basis for the alleged attendance violations.

Read also: The Different Grounds for Termination of Employment

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 09175772207/ 09778050020.

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