Theft by an employee

Dear Atty. Joji,

One of my employees, who has been with the company for over a decade, was recently caught on CCTV taking cash from the register and discreetly placing it in her personal bag during her shift. We issued an NTE and scheduled her for an administrative hearing, during which the employee was given the opportunity to explain. She then admitted that she committed the act due to extreme necessity. As a result, I decided to terminate the employee due to the said discovery. Can the company be held liable for illegal dismissal even if the employee admitted to the crime?

Agatha

Dear Agatha,

According to Article 282 of the Labor Code, an employer can terminate an employee for just causes, which may be any of the following: (1) serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (2) gross and habitual neglect by the employee of his duties; (3) fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representatives; (4) commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and other similar causes.

Even in the absence of an explicit company policy on theft, an employee may still be sanctioned under Article 297 of the Labor Code. Theft may be considered serious misconduct, willful disobedience of lawful employer orders related to work, fraud, a willful breach of trust, or the commission of a crime. In some cases, it may also amount to gross and habitual neglect of duty.

It must be noted, however, that in cases wherein there is just cause for termination, employers must still comply with the requirements of substantive and procedural due process. Procedural due process consists of the twin requirements of notice and hearing. Employers must furnish employees with two written notices, or the “two-notice rule,” before termination of employment can be effected.

As held in the case of Pepsi-Cola Bottling Co. Inc. v. NLRC: “The law requires that the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected: (1) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought, and (2) the subsequent notice which informs the employee of the employer’s decision to dismiss him (Sec. 13, BP 130, Sec. 2-6 Rule XIV, Book V, Rules and Regulations Implementing the Labor Code, as amended). Failure to comply with the requirements taints the dismissal with illegality. This procedure is mandatory; in the absence of which, any judgment reached by management is void and inexistent.”

In addition to administrative sanctions, the employer may pursue criminal charges against the employee. Since employers generally place significant trust in their personnel to responsibly manage company property, the law regards this breach of trust with heightened severity, resulting in more stringent penalties when an employee perpetrates theft against the employer. Theft committed under certain circumstances, such as involving property entrusted by reason of the employee’s position, may qualify as qualified theft under the Revised Penal Code. If the elements are present, the employer has the right to file a criminal complaint against the erring employee.

Hope this helps.

Atty. Joji Alonso