Dear PAO,

My new supervisor was very strict and had an unbearable attitude. He caught me wearing an improper uniform last month, hence, a charge WAS fiLED AGAINST ME. DURING THE hearing, my supervisor claimed that my previous infractions for insubordination and failure to pass the performance evaluation should also be considered to warrant the imposition of dismissal. I was already penalized in those previous cases, so I am really worried. Would those previous infractions justify the imposition of dismissal in my present infraction? Longat

Dear Longat,

The totality of infractions may be considered by an employer in the imposition of the proper penalty for offense committed by his or her employee.

The rule on “totality of infractions” was elaborated in the case of Merin v National Labor Relations Commission, et al., GR 171790, Oct. 17, 2008, penned by Associate Justice Dante Tiñga, as follows:

“The totality of infractions or the number of violations committed during the period of employment shall be considered in determining the penalty to be imposed upon an erring employee. The offenses committed by petitioner should not be taken singly and separately. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct, and ability separate and independent of each other. While it may be true that the petitioner was penalized for his previous infractions, this does not and should not mean that his employment record would be wiped clean of his infractions. After all, the record of an employee is a relevant consideration in determining the penalty that should be meted out since an employee’s past misconduct and present behavior must be taken together in determining the proper imposable penalty. Despite the sanctions imposed upon the petitioner, he continued to commit misconduct and exhibit undesirable behavior on board. Indeed, the employer cannot be compelled to retain a misbehaving employee, or one who is guilty of acts inimical to its interests. It has the right to dismiss such an employee if only as a measure of self-protection.” (Citations omitted).

However, please note that the Supreme Court in the case of Sy and Alix v Neat, Inc., Banana Peal and Ng (GR 213748, Nov. 27, 2017), through Chief Justice Diosdado Peralta, stated that:

“Contrary to respondents’ contention, however, the past three (3) infractions in 2009 for wearing of improper uniform can no longer be taken against Sy because he was already warned and penalized for them, and he has, in fact, reformed his errors in that regard. Notably, in the Performance Appraisal dated Aug. 3, 2011 for the criteria of ‘Personal Appearance’ — personal impression of an individual makes on others. Consider cleanliness, grooming, neatness and appropriateness of dress on the job,” operations manager Jamlid gave Sy a grade of 80 points for “goodcompetent and dependable level of performance.” Meets standards at the job, and commented that Sy report[s] to work in complete uniform. Where an employee had already suffered the corresponding penalties for his infraction to consider the same offenses as justification for his dismissal would be penalizing the employee twice for the same offense.

“Significantly, the infractions of Sy for wearing of improper uniform are not related to his latest infractions of insubordination and purported poor performance evaluation. Previous offenses may be used as valid justification for dismissal only if they are related to the subsequent offense upon which the basis of termination is decreed, or if they have a bearing on the proximate offense warranting dismissal.”

Interpreting these two decisions together, the totality of infractions can be considered in imposing the penalty. However, in dismissal cases, previous infractions may only be considered if they are related to the offense for which the dismissal was imposed.

In your situation, the totality of infractions cannot be applied to warrant the imposition of dismissal from service because your previous infractions were not related to your present case. Further, you have already served the penalties in those offenses. Thus, if your employer will consider these for the imposition of dismissal in your present case, it would be tantamount to penalizing an employee twice for the same offense.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.