Theft vs fellow worker may be a cause for termination

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Persida Acosta

Persida Acosta

Dear PAO,
My friend was hired as a cashier for a small grocery store. He was temporarily suspended because of an ongoing investigation against him. Although he admitted to taking the money and cellphone of the grocery’s delivery boy without the latter’s consent, he already asked for his forgiveness and explained that he only did that because he badly needed the money. While his employer has not given his final decision yet, things are not looking good for my friend.

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He just wants to know if it is really possible for him to be terminated even if what transpired is not work-related or something that is personal between him and the delivery boy. I hope you can shed light on this. Any advice will be appreciated.
Yazzy

Dear Yazzy,
Our Labor Code enumerates 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 appear to refer to 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. No. 169549, September 3, 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 friend admitted to taking the money and 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 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.

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.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

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