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This article was originally published on June 1, 2022 and has been updated to reflect recent legal developments.
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of a lawyer or you may directly contact and consult Alburo Alburo and Associates Law Offices to address your specific legal concerns, if there is any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
Theft is a crime punishable by our laws in the Philippines. Specifically, Article 308 Revised Penal Code substantially provides that any person who shall take or steal with intent to gain the personal property of another without his or her consent and with no further use of violence, intimidation of persons or force upon things, shall be liable for the crime of theft. Further, if the crime of theft shall be committed by and through the following means, the crime is considered as QUALIFIED THEFT:
- Committed by a domestic servant, or
- With grave abuse of confidence, or
- If the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or
- If property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance (Article 310 of the Revised Penal Code).
With all the foregoing, if the crime of theft was committed by an employee in the company premises, what are the possible remedies of the employer?
Initiation of a Criminal Complaint against the Employee
Since theft is a crime punishable by our laws, an employer may initiate a criminal complaint against the suspect employee. However, the employer must produce evidence which leads to establishment of probable cause or a reasonable belief that the suspected employee committed the crime charged against him. This is the rule in initiation of criminal cases.
Once the employer collected the pieces of evidence leading to the fact that the employee stole some properties of the company, these shall be appended to the criminal complaint and filed to the Office of the City or Provincial Prosecutor of the place where the crime of stealing was committed.
Rule 110 of the Revised Rules of Criminal Procedure states that:
Criminal actions shall be instituted as follows:
- For offenses where a preliminary investigation is required pursuant to Section 1 of Rule 112, by filing the complaint with the proper offenses for the purpose of conducting the requisite preliminary investigation.
- For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters.
The institution of the criminal action shall interrupt the running period of prescription of the offense charged unless otherwise provided in special laws.
After the case is filed with the Office of the City/Provincial Prosecutor (OCP), the OCP will issue a subpoena to the suspected employee, requiring him or her to appear on a certain date and time to submit his or her Counter-Affidavit. Thereafter, the Employer may file a Reply-Affidavit to controvert the new issues he or she raised. In the same vein, the suspected employee may file a Rejoinder-Affidavit. This process is known as Preliminary Investigation, a process to know whether or not there is probable cause that the suspected employee committed the crime charged against him or her.
Once there is a conclusion of the Preliminary Investigation conducted by the OCP, the OCP will issue a decision denying, if there is no probable cause found, or a decision finding probable cause which comes with it the issuance of warrant of arrest and information against the accused.
While the case is pending before the OCP or even before the initiation of the criminal complaint, the Employer may opt to place the suspected employee under Preventive Suspension. To note, preventive suspension may be legally imposed against an employee whose alleged violation is the subject of an investigation. The purpose of suspension is to prevent-harm or injury to the company as well as to fellow employees (Maula vs. XIMEX Delivery Express, Inc., G.R. No. 207838, January 25, 2017). The pertinent rules dealing with preventive suspension are found in Sections 8 and 9 of Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code.
As succinctly stated above, preventive suspension is justified where the employee’s continued employment poses a serious and imminent threat to the life or property of the employer or of the employee’s co-workers. Without this kind of threat, preventive suspension is not proper. Applying this to the case of a stealing employee, it can be said that a suspected employee posed a danger on the properties or personal belongings of the officers or employees.
Termination from Employment
In the previous article (link to Stealing Co-Employee’s Personal Belongings: A Just Cause for Dismissal), we have discussed that, it has already been settled by numerous decisions of the Supreme Court that, theft involving company properties or stealing the properties of the company is considered as a form of serious misconduct under Article 297 (a) of the Labor Code of the Philippines (Philippine Long Distance Telephone Company v. National Labor Relations Commission, G.R. No. L-80609, August 23, 1988, 164 SCRA 671, 679-680, Reno Foods, Inc. vs. Nagkakaisang Lakas ng Manggagawa (NLM)-Katipunan 615 SCRA 240 , March 15, 2010).
The crime of theft may also fall under Article 297 (c) of the Labor Code of the Philippines or fraud or willful breach by the employee of the trust reposed in him by his employer or his duly authorized representative. This is essentially true especially when the suspected employee occupies a position where trust and confidence is reposed on him or her by his employer.
While theft is considered as one of the just causes for dismissal of an employee, the employer shall still comply with the procedural aspect of termination to make the dismissal valid.
Furthermore, employers shall be reminded that filing of a criminal case of Qualified Theft against the employee is not totally binding with the labor tribunals. In other words, whatever may be the result of the criminal case may not affect the results in a labor case.
In the procedure before the Labor Arbiters, the crime of qualified theft does not necessarily mean that there exists a valid ground for their termination from employment especially when the employer merely relied on the resolution of the prosecution.
Citing the 2015 case of Copy Central Digital Copy Solution vs. Domrique et al., (G.R. No. 193219), a criminal conviction is not necessary to find just cause for employment termination. Otherwise stated, an employee’s acquittal in a criminal case, especially one that is grounded on the existence of reasonable doubt, will not preclude a determination in a labor case that he is guilty of acts inimical to the employer’s interests. In the reverse, the finding of probable cause is not followed by automatic adoption of such finding by the labor tribunals. In other words, whichever way the public prosecutor disposes of a complaint, the finding does not bind the labor tribunal.
In the said case, the employer argued before the labor tribunal that since the prosecutor found probable cause for qualified theft and subsequently filed criminal information against the erring employee, the labor tribunal must follow the finding as a valid reason for their termination from employment. The Supreme Court was not convinced. The criminal case for qualified theft and the just cause for its dismissal are different.
Thus, in order to convince the labor tribunals that there is a valid cause for the dismissal of the employee, employers shall still prove the substantial aspect in a labor case, which is, the dismissal is due to serious misconduct and/or loss of trust and confidence and also, that there is proper observation of procedure in terminating the employee.
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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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