Theft by Employee; How to Handle the Investigation and ProsecutionAtty Elvin
Theft by an employee of a company property may be one of the most disappointing incidents in the relationship between the employer and the employee. While this may cause heartbreak the employer should handle this professionally and efficiently in accordance with the legal requirements.
The Revised Penal Code generally defines theft as an act committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent. (Page 124, Guide to Valid Dismissal of Employees, 2nd Edition, Atty. Villanueva, citing Art. 308, The Revised Penal Code.)
Theft falls within serious misconduct.
As held by the Supreme Court, theft committed by an employee against a person other than his employer, if proven by substantial evidence, is a cause analogous to serious misconduct. (Hocheng Philippines Corporation vs. Farrales, G.R. No. 211497, March 18, 2015)
Misconduct is improper or wrong conduct, it is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. The misconduct to be serious must be of such grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must, nevertheless, be in connection with the employee’s work to constitute just cause for his separation. (Cosep v. NLRC, 353 Phil. 148, 158-159 (1998).)
The company has two possible courses of action whenever an employee commits theft of company property:
- Initiate disciplinary proceeding which may be penalized with dismissal, and
- File a criminal case (qualified theft)
In the disciplinary aspect, the best approach is to place the employee on preventive suspension along with the service of the Notice to Explain (NTE).
Preventive suspension is a disciplinary measure for the protection of the company’s property pending investigation of any alleged malfeasance or misfeasance committed by the employee. (Page 304, Guide to Valid Dismissal of Employees, 2nd Edition, citing Philippine Airlines, Inc. vs. NLRC, G.R. No. 114307, July 8, 1998 citing Globe-Mackay Cable and Radio Communication v. NLRC, 206 SCRA 701 (1992); See Gatbonton vs. NLRC, G.R. No. 146779, January 23, 2006.)
The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. (Page 304, Guide to Valid Dismissal of Employees, 2nd Edition, citing Rural Bank of Baao, Inc. v. NLRC, 207 SCRA 444 (1992))
Employee under investigation may be temporarily removed from the premises to avoid influencing witnesses, tampering with evidence, cover-up, or connivance with other workers. Preventive suspension is not a penalty. Its practical purpose is to preserve evidence and to give way to objective investigation with untarnished evidence.
The company, pending investigation, may also prepare the Complaint-Affidavit for Qualified Theft to be filed with the office of the City or Provincial Prosecutor. Once probable cause is found and approved by the prosecution office, the Information will be filed by the prosecutor/fiscal with the court having jurisdiction over the case.
Alongside with it, the employee may be invited for a hearing/conference with a reminder that he could bring along his counsel or any support person he may desire. Considering that the employee being charged is under preventive suspension, the company should consider the transit of mail or registered mail during the process. Mailing through private courier (such as LBC) has been an accepted practice.
For instance, if the employee was served an NTE on September 11, 2019 with preventive suspension, he should go home upon service thereof. Since preventive suspension shall be for a maximum period of thirty (30) days only, it shall be effective until October 11, 2019.
As provided under the procedural due process rules, the employee should be invited to a hearing/conference (most especially if this is a procedure stated in the Code of Conduct or Code of Discipline). The notice may be served two or three days after the service of NTE. Considering that the employee stopped reporting for work on September 11, 2019 it can only be served by mail. Although the option of serving it personally is the primary mode. But this will require employee to report to the office which will mean cost on the worker who has no pay at the moment and will somehow be inconsistent with preventive suspension (unless he is closely guarded the whole time while in the office premises).
The employee should send his written explanation to the NTE within five days. Thus, said response should be in by September 16.
If the option to send the invitation to a hearing/conference is by mail it may be sent on September 17, 2019. Probably, it can reach the employee after seven days assuming he is within NCR. If made through private courier it may reach him the next day. Thus, the hearing may be set on September 24, 2019.
After the hearing, the company should study the case and evaluate the pieces of evidence. This may take about 4 or 5 days. The company should not rush in making the final decision, especially if it is adverse to the employee, as this may be construed as prejudgment of the case. Thus, by October 1, 2019 the company may already have a final decision.
If the final decision is mailed on October 1 it may reach the employee by October 8 or 10, just within October 11, 2019 which is the expiration of the preventive suspension.
The qualified theft case can proceed independently of the administrative proceeding.