Fraud as Ground for Employee Dismissal Under Willful Breach of Trust – Sample Notice of Dismissal for Overpricing Receipts
Fraud, in its general sense, is deemed to com- prise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair way by which an- other is cheated. On the other hand, deceit is the false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury. (See page 176, Guide to Valid Dismissal of Employees, 2nd Edition, citing People vs. Menil, 394 Phil. 433, 452 (2000). See also People v. Romero, G.R. No. 112985, 21 April 1999, 365 Phil. 531, 540-541; Sim Jr. v. Court of Appeals, G.R. No. 159280, 18 May 2004, 428 SCRA 459, 468.)
Fraud exists only when, through insidious words or machinations, the other party is induced to act and without which, the latter would not have agreed to. (Page177, Ibid.)
Fraud is never presumed. It must be proved. It cannot be based on nebulous facts.
Fraud and misrepresentation are, therefore, never presumed; it must be proved by clear and convincing evidence and not mere preponderance of evidence. (Solidbank Corporation vs. Mindanao Ferroalloy Corporation, G.R. No. 153535, July 28, 2005, 464 SCRA 409, 426; Republic of the Philippines vs. Institute for Social Concern, G.R. No. 156306, January 28, 2005, 449 SCRA 512, 521-522; Spouses Morandarte v. Court of Appeals, G.R. No. 123586, August 12, 2004, 436 SCRA 213, 223; and Maestrado v. Court of Appeals, 384 Phil. 418, 435 (2000).
Hence, the Supreme Court does not sustain findings of fraud upon circumstances which, at most, create only suspicion; otherwise, it would be indulging in speculations and surmises. (Republic of the Philippines v. Institute for Social Concern, id. and Maestrado vs. Court of Appeals, G.R. No. 156306, January 28, 2005, 449 SCRA 512, 521-522)
Assuming the employee submitted altered receipts by increasing the amount as against the original so as to profit therefrom. How should the employer proceed with the discipline of such employee?
Below is the sample Notice of Dismissal based on the book HR Forms, Notices & Contracts Vol. 2. Note however, that the Notice of Dismissal is the final step in the procedural due process of employee termination. The first step is the issuance of the NTE and the holding of Administrative Hearing/Conference.
In the book HR Forms, Notices & Contracts Vol. 2 the sample NTE and the Notice of Hearing/Conference are also provided. Those who have copy, just refer to the partner forms of Form No. 126.
Form No. 126 – Decision to Dismiss (Final Notice)
Overpricing of purchases to defraud company
To: Name of Employee
From: HR MANAGER or other responsible officer
Subject: Overpricing of purchases to defraud company
Date: (Date of issuance)
The following incident has been brought to our attention for appropriate action.
A recent audit of financial transactions for the period ending on _________ showed that you presented several receipts purportedly issued by ABC Company for the supply of food and drinks at various company gatherings. Attached are copies of the said receipts
Upon verification, however, ABC Company revealed that the amount appearing on your receipts were not the true values of the items purchased from them. The receipts you presented showed amounts which were much higher than the usual prices quoted by ABC Company for the same food and drink items. Attached is the affidavit executed by the account officer of ABC Company, attesting to the correct amounts of the items purchased by the Company.
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During the scheduled conference on ______________, you were given the opportunity to explain or defend your side on the matter. (State any detail during the conference that may bolster the belief that a violation was committed)
(State other details to substantiate charge, refute statement of employee if applicable, and complete justification for the company’s decision.)
In this connection, the act of overpricing purchases may constitute fraud or deceit and is a ground for termination of employment under Art. 297 of the Labor Code.
After a thorough review and discussion on the matter, we find that your violation of the said policy was serious, deceitful and unjustified, and constitutes fraud or dishonesty.
In view of the foregoing, you are hereby informed that your employment with the Company is terminated effective on the closing hours of ______(date).
Please comply with the relevant post-employment requirement of the Company by surrendering your accountabilities to _________________(department or officer) for the Company to process your final salary.
Very truly yours,
__________
(Name of Immediate superior)
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