Memo – 25 – 01 - 001

To : Mr. Roberto C. Silfavan

Restaurant Supervisor
Tunglok Seafood – S’ Maison Pasay City
From : Human Resource Department
Date : January 10, 2025
RE : Notice of Decision (Termination)

This letter is about the probable violations that you may have committed in the performance of your work vis-à-vis the
provisions of our Employees Code of Ethics on SECTION 2. VIOLATIONS OF WORK STANDARDS & OTHER COMPANY
PROCEDURE, POLICIES & SOP’S, 1 Failure to follow policies, procedures, guidance, or memoranda of the Company,
SECTION 4. ACT OF DISHONESTY, 1 Tip pocketing, Pilferage (Passing Out if Item/s) or Theft of anything of value whether
direct participation and as an accomplice. Theft of property of co-employee.,6. Stealing, attempting to steal, theft of any
company property, property of guest/customer, item or of the employee property, unauthorized release, pull out of
products i.e any form of cash or with value for personal gain or consumption, whether indirect participation as
accomplice and Rule 4. Violation of Labor Code Article 297, as amended: (a) Serious misconduct or willful disobedience
by the employee of the lawful orders of his employer or representative in connection with his work, (b) Gross and
habitual neglect by the employee of his duties, (c) Fraud or willful breach by the employee of the trust reposed in him by
his employer or duly authorized representative, (e) Other causes analogous to the foregoing.

The circumstances surrounding this case are as follows:

While browsing the CCTV footage at the store for an open case, your alleged consuming of a bar ingredient was
observed.

A Notice to Explain was served to you on January 3, 2025. An administrative hearing was held last January 8, 2025 when
we also received your explanation letter.

Based on your explanation letter that we received, you acknowledged that “Admittedly, I had a activity of opening the
chiller at that time, since I brought a small portion of ‘Grapes’ which was placed in a small portion and temporarily kept
inside the chiller as part of my dietary consumption. It would have been mistaken a cherries which a bar supply.” You
further stated that you were unaware that storing personal items in the company chiller is prohibited, a policy which has
been consistently communicated by your AOM – Mr. Alexander Garcia, who has repeatedly reminded you and the team
of this rule, as outlined in the Code of Ethics, since the commencement of your employment.

You were also asked whether you had disclosed a medical condition requiring you to consume small amounts of sugar in
the form of fruits, such as grapes, due to a fatty liver condition. You responded “no ma’am” but further asserted that,
according to your doctor, your condition is not critical and that you are still fit to work. Notwithstanding, you opted not
to disclose your medical condition, which constitutes an obligation under your duties as a member of the management
team and is further outlined in the Code of Ethics.

Furthermore, your negligence in your performance and act of dishonesty, as part of a management team, have resulted
in a breach of trust and confidence of the company, by virtue of your failure to comply with the Company’s Code of
Ethics, which you are obligated to uphold as a standard for your subordinates to follow.
After a thorough review, investigation and discussion on the matter, and taking in your explanation, the Company finds
that you have still violated the Company Code of Ethics and Article 297 of the Labor Code of the Philippines, as
amended, as follows:

SECTION 2. VIOLATIONS OF WORK STANDARDS & OTHER COMPANY PROCEDURE, POLICIES & SOP’S
1 Failure to follow policies, procedures, guidance, or memoranda of the Company, (WR, 3-7 days S, 15-30 days S,
Dismissal)

SECTION 4. ACT OF DISHONESTY,

1 Tip pocketing, Pilferage (Passing Out if Item/s) or Theft of anything of value whether direct participation and as
an accomplice. Theft of property of co-employee, (Dismissal)
5 Falsifying, submitting personal or company records, causing these to be falsified, giving false and fraudulent
information unless the management finds justifying circumstances, (Dismissal)
6 Stealing, attempting to steal, theft of any company property, property of guest/customer, item or of the
employee property, unauthorized released, pull out of products i.e any form of cash or with value for personal
gain or consumption, whether indirect participation as accomplice (Dismissal)

Rule 4. Violation of Labor Code Article 297 a, b, c and e of the Labor Code, as amended: (Dismissal)
(a) Serious misconduct (Tip pocketing, Pilferage, or Theft) or willful disobedience by the employee of
the lawful orders of his employer or representative in connection with his work (Tip pocketing,
Pilferage, or Theft) (Dismissal)
(b) gross and habitual neglect by the employee of his duties (Dismissal);
(c) Fraud (Tip pocketing, Pilferage, or Theft) or willful breach by the employee of the trust reposed in
him by his employer of duly authorized representative. (Tip pocketing, Pilferage, or Theft)
(Dismissal)
(e) Other causes analogous to the foregoing. Violation of the Code of Ethics (Dismissal)

First, misconduct is defined as the transgression of some established and definite rule of action, a forbidden act, a
dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. In this case, for
misconduct or improper behavior to be a just cause for dismissal, the following elements must concur: (a) the
misconduct must be serious; (b) it must relate to the performance of the employee’s duties showing that the employee
has become unfit to continue working for the employer; and (c) it must have been performed with wrongful intent.

In this case, you consumed the bar ingredients which you have denied and insisting that it was your personal item, that
you only consumed it whenever you feel that your sugar is dropping, due to fatty liver and you did not know that storing
personal item in the company chiller is prohibited, that whether, by the virtue of your failure to comply in the company’s
policy to disclose your medical condition. It constitutes serious misconduct, willful disobedience to the lawful order of
the employer, and a fraudulent act that caused the breach of trust and confidence in you.

In the case of St. Luke’s Medical Center, Inc., v. Maria Theresa V. Sanchez, G.R. No. 212054, March 11, 2015, it was held,
that:

Note that for an employee to be validly dismissed on this ground, the employer's orders, regulations, or instructions
must be: (1) reasonable and lawful, (2) sufficiently known to the employee, and (3) in connection with the duties which
the employee has been engaged to discharge."
Tested against the foregoing, the Court finds that Sanchez was validly dismissed by SLMC for her willful disregard and
disobedience of Section 1, Rule I of the SLMC Code of Discipline, which reasonably punishes acts of dishonesty, i.e.,
"theft, pilferage of hospital or co-employee property, x xx or its attempt in any form or manner from the hospital, co-
employees, doctors, visitors, [and] customers (external and internal)" with termination from employment. Such act is
obviously connected with Sanchez's work, who, as a staff nurse, is tasked with the proper stewardship of medical
supplies. Significantly, records show that Sanchez made a categorical admission in her handwritten letter - i.e.,
"[k]ahitalamkongbawal ay nagawakong [makapag-uwi] ng gamit" - that despite her knowledge of its express prohibition
under the SLMC Code of Discipline, she still knowingly brought out the subject medical items with her. It is apt to clarify
that SLMC cannot be faulted in construing the taking of the questioned items as an act of dishonesty (particularly, as
theft, pilferage, or its attempt in any form or manner) considering that the intent to gain may be reasonably presumed
from the furtive taking of useful property appertaining to another. Note that Section 1, Rule 1 of the SLMC Code of
Discipline is further supplemented by the company policy requiring the turn-over of excess medical supplies/items for
proper handling and providing a restriction on taking and bringing such items out of the SLMC premises without the
proper authorization or "pass" from the official concerned, which Sanchez was equally aware thereof. Nevertheless,
Sanchez failed to turn-over the questioned items and, instead, "hoarded" them, as purportedly practiced by the other
staff members in the Pediatric Unit. As it is clear that the company policies subject of this case are reasonable and
lawful, sufficiently known to the employee, and evidently connected with the latter's work, the Court concludes that
SLMC dismissed Sanchez for a just cause.

Said act is also fraudulent in nature. Fraud has been defined as any act, omission or concealment which involves a
breach of legal duty, trust or confidence justly reposed, and is injurious to another and committed against the employer
and in connection of one’s work. In this case, the act of theft of company property involved a breach of legal duty, trust
or confidence justly reposed; it is committed against the employer or his/her representative and it must be in
connection with the employees’ work.

Fraud is separate and distinct from the other ground provided in the same paragraph, that is, loss of trust and
confidence (willful breach by the employee of the trust reposed in him by his employer or duly authorized
representative).1The following are the requisites of this ground:
1. The employee has committed fraud, an intentional deception and used dishonest methods for personal gain
or to damage the employer; and
2. The fraud is work-related and rendered him unfit to work for his employer.

Here, the fraud that you committed against the company resulted in the loss of trust and confidence over you. Despite
security measures of the company to prevent said illegal activity, you still committed the same. Were it not for the
timely discovery, you could have escaped from any liability thereof. The serious misconduct and willful disobedience to
the lawful order may not be an isolated act but you may have done the same on another occasion. Because of the
incident, the company has lost trust and confidence in you.

Article 282 (297) of the Labor Code provides that an employer may terminate the services of its employee for "[f]raud or
willful breach x xx of the trust reposed in him by his employer or duly authorized representative." As a rule, employers
have the discretion to manage its own affairs, which includes the imposition of disciplinary measures on its
employees.2 Thus, "employers are generally given wide latitude in terminating the services of employees who perform
functions which by their nature require the employer's full trust and confidence.” 3

2
Manila Hotel Corp. v. De Leon, G.R. No. 219774, July 23, 2018
3
University of the Immaculate Conception v. Office of the Secretary of Labor and Employment, 769 Phil. 630, 654 (2015); Wuerth
Philippines, Inc. v. Yuson, 682 Phil. 143, 158 (2012); and Ancheta v. Destiny Financial Plans, Inc., 626 Phil. 550, 562 (2010)
Employees holding a position of trust and confidence could be terminated on the grounds of loss of confidence by the
mere existence of a basis for believing that they had breached the trust of their employer . It would already be
sufficient that there is some basis for such loss of confidence, such as when the employer has reasonable ground to
believe that the concerned employee is responsible for the purported misconduct and the nature of his participation
therein. In the case of PJ Lhuillier, Inc. vs. Camacho4it was pronounced:

“Camacho, as AOM, was a managerial employee. As such, he could be terminated on the ground of loss of confidence
by mere existence of a basis for believing that he had breached the trust of his employer. Proof beyond reasonable
doubt is not required. It would already be sufficient that there is some basis for such loss of confidence, such as when
the employer has reasonable ground to believe that the concerned employee is responsible for the purported
misconduct and the nature of his participation therein. This distinguishes a managerial employee from a fiduciary rank-
and-file where loss of trust and confidence, as ground for valid dismissal, requires proof of involvement in the alleged
events in question, and that mere uncorroborated assertion and accusation by the employer will not be sufficient.”
(Emphasis supplied)

In the case of Villanueva v MERALCO,5 it was held, that Meralco’s loss of trust and confidence arising out of Villanueva
act of misappropriation of company funds in the course of processing customer applications has been proven by
substantial evidence, thus, justified.

Finally, your act of dishonesty is considered an analogous cause for violation of the Code of Ethics. A cause analogous to
serious misconduct is a voluntary and/or willful act or omission attesting to an employee’s moral depravity. Dishonesty
and Insubordination committed by an employee is a cause analogous to serious misconduct. Considering that you opted
not to disclose your medical condition, would also cause a violation of Article 297 par. E of the Labor Code, as amended.

Here, your acts are violations of the code of ethics in the company as mentioned above. Breach of trust and confidence
of the company is considered an analogous ground for the termination of your employment.

Given the above, after careful assessment of the facts and pieces of evidence presented, and your explanation letter,
your service is terminated effective immediately from receipt of this notice. This is without prejudice to whatever
criminal, civil, or administrative charges that the company or customer may institute against you.

Please comply with the relevant post-employment requirement of the Company by surrendering your accountabilities to
the HR Department for the Company to process your final salary.

4
February 22, 2017, G.R. No. 223073
5
G.R. No. 176893, June 13, 2012
Please be guided accordingly.

Prepared by: Received by:

Clarisse V. Sibol ______________________________

Assistant – Trainee, Human Resources Signature over Printed Name/Date

Concurred by:

Kimberly Claire Mangabat, RPm

Head, Human Resources

Approved by:

John Peter Paul J. Atienza

Head, Operations