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Stealing a cellphone

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Dear Atty Joji,

My brother works as a bagger in a small grocery store. He got suspended for stealing his colleague’s cellphone. Though he admitted the act and asked for forgiveness, his employer placed him under suspension while an investigation is being conducted.

Will he be terminated because of this? Hope you can help us. Thank you.

Siony

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Dear Siony,

According to our Labor Code, the following are the just causes for which an employer may lawfully terminate its contract with its employee, to wit: (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; (d) 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 (e) Other causes analogous to the foregoing (Article 282, Ibid.).

While these causes may seem applicable work-related concerns, our Supreme Court has ruled that the fifth cause mentioned, (e) Other causes analogous to the foregoing, encompasses situations that involve infractions not directed to the employer nor to the company as long as it is shown that it was done voluntarily or willfully by the employee concerned. As penned by the late Chief Justice Renato Antonio Corona in the case of John Hancock Life Insurance Corporation and/or Michael Plaxton vs Joana Cantre Davis (564 SCRA 92, G.R. 169549, 3 September 2008):

“x x x For an employee to be validly dismissed for a cause analogous to those enumerated in Article 282, the cause must involve a voluntary and/or willful act or omission of the employee.

A cause analogous to serious misconduct is a voluntary and/or willful act or omission attesting to an employee’s moral depravity. Theft committed by an employee against a person other than his employer, if proven by substantial evidence, is a cause analogous to serious misconduct. x x x” (Emphasis supplied)

Since your brother admitted to taking the cellphone of his workmate without the latter’s consent, it established the ground for which he may be dismissed. Although the incident between them is not entirely work-related, it still falls within the ambit of the law. Hence, it is possible for him to be lawfully dismissed as long as the procedural due process has been complied with, that is: (a) he was properly notified of the infraction he is charged with and the investigation made in relation thereto, and (b) he is properly notified of the resolution of his employer.

Hope this helps.

Atty. Joji Alonso

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