Dear PAO,
Does an employer have the legal right to make its sales lady pay for a merchandise that was stolen by an outsider? The CCTV footage would prove that an outsider had stolen a merchandise from the employer’s store.

If the answer to my question is yes, then what is the extent of the liability of the sales lady?

Thank you very much for your kind attention.

Truly yours,
Marie

Dear Marie,
No, the employer cannot make the sales lady become liable for the merchandise which was stolen by an outsider. This is true even when a CCTV footage would prove that an outsider had stolen a merchandise from the employer’s store. The sales lady could not be held liable for something which she is not guilty of. The sales lady had no involvement in the said theft incident. In fact, the CCTV footage would show that it was an outsider who stole the item.

The employer cannot also deduct the value of the stolen merchandise from the salary of the sales lady. Article 113 of the Labor Code of the Philippines provides, “[n]o employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: (a) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance; (b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and (c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.” Therefore, if the employer would insist that the sales lady should be liable for the stolen merchandise and deduct the value of the stolen merchandise from her salary, then the employer is liable for having violated the Labor Code of the Philippines, as the said Code clearly specifies the instances in which there can be a deduction from an employee’s wages.

On the other hand, if the employer’s company policy provides for the liability of a sales lady in case a merchandise is stolen even if the latter is without fault in connection therewith, then such policy is void. A void contract is considered to be without any force and effect. It is emphasized in Article 1306 of the Civil Code of the Philippines that the contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. The company policy providing for the liability of the sales lady in case a merchandise is stolen without her fault is void because it is contrary to law. Under our laws, one who has no involvement in a crime could not be made liable for its occurrence. As earlier mentioned, the sales lady is not liable for the theft as she did not have any participation therein. Also, it is of general knowledge that the duty of a sales lady is different from the duty of a security guard. The general duty of a sales lady is to assist and sell to customers the products being offered by the store.

The crime of theft under Article 308 of the Revised Penal Code of the Philippines has the following elements: (1) there be taking of personal property; (2) said property belongs to another; (3) the taking be done with intent to gain; (4) the taking be done without the consent of the owner; and (5) the taking be accomplished without use of violence against or intimidation of persons or force upon things. To make the sales lady liable, it should be proven in court, in an appropriate criminal case, that the sales lady is guilty of having conspired with the thief or that the sales lady was an accomplice to the crime of theft. Unless and until the employer has proven the participation of the sales lady in the crime of theft, it cannot make the latter liable for the stolen merchandise.

Furthermore, even if we assume that the sales lady has knowledge of the commission of the crime of theft, still she does not have any liability. The Supreme Court in US vs Callapag (G.R. No. L-7041; January 23, 1912) stated that, “this court has on a number of occasions, however, decided that the mere silence of one knowing of the commission of a crime is not an offense under the Penal Code and does not in itself make the person an accessory after the fact…. if a party actually and actively deceives the authorities with reference to the commission of the crime of murder, or offers assistance to the perpetrators of the crime, enabling them to escape the vigilance of the authorities, then such a person is an accessory after the fact, but as we have before observed there is a distinction between such conduct as this and mere silence and nothing more.” The sales lady’s inaction or silence does not amount to having participated in the crime of theft. Therefore, she could not be made liable for its occurrence.

We hope that we were able to answer your queries. Please be reminded that 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.