Willful Breach of Trust – Sample Notice to Explain for Manufacturing Receipts
Willful breach of trust is one of the grounds for dismissal of employees. Loss of trust and confidence is a term most employers use to dismiss a managerial employee who breached the trust reposed in him.
To be valid ground for an employee’s dismissal, loss of trust and confidence must be based on a willful breach. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse.
A willful breach cannot be a breach resulting from mere carelessness. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.
The employer must provide substantial basis to support its claim of breach of trust. Conclusion of law or of fact will not stand before the court of law. Such a vague, all-encompassing pretext as loss of confidence, if unqualifiedly given imprimatur, could readily reduce to barren the constitutional guarantee of security of tenure. Unsupported by sufficient proof, loss of confidence is without basis and may not be successfully invoked as a ground for dismissal.
To constitute a just cause for dismissal, the act complained of must be work-related and shows that the employee concerned is unfit to continue to work for the employer.
Loss of confidence should relate to acts inimical to the interests of the employer. Also, the act complained of should have arisen from the performance of the employee’s duties.
Breach must be related to the performance of the employee’s function.
For more discussion on valid dismissal on this ground you may read Guide to Valid Dismissal of Employees, Second Edition by Atty. Elvin B. Villanueva.
Based on the above, a sample notice is provided to guide practitioners on how to properly prepare the disciplinary memo for willful breach of trust. Of course, there are various acts that can fall under this category such as falsification of receipts to take money, fabrication of reimbursement receipts, tampering of attendance to get pay despite absence, etc.
The post below is based on the book Human Resource Forms, Notices and Contracts Volume 2 also by Atty. Villanueva.
Form No. 132 Notice to Explain (First Notice) – Manufacturing receipts to defraud company
To : Name of Employee
From : Human Resources Manager
Subject : Manufacturing receipts to defraud the company
Date : (Date of issuance of Notice)
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 Several attempts to contact ABC Company proved fruitless as the contact information of this supplier appeared to be invalid and the office address turned out to be nonexistent.
Upon verification at the BIR, our Finance Department discovered that the receipts of ABC Company were not registered with the BIR and no such company has obtained authority to print them.
In this connection, the act of manufacturing receipts may constitute fraud or deceit and is a ground for termination of employment under Art. 297 [formerly Article 282] of the Labor Code.
In view of the foregoing, you are hereby required to submit a written explanation to this office within five (5) days from receipt of this notice, stating why the Company Forms on Employee Dismissal 259 should not impose the penalty of dismissal for the act mentioned.
Furthermore, you are invited to a conference on _________ (date) at ___________ (venue) where you shall be accorded the opportunity to express your side on the matter. You may be accompanied by your own counsel at the said conference if you wish to be assisted by one.
Your failure to submit your written explanation within the period provided shall be construed as a waiver of your right to be heard and the Company shall decide the matter on the basis of all records and evidence available to it.
Your compliance is strongly encouraged.
Very truly yours,
___________________
(Name and signature of authorized signatory)
The Labor Code of the Philippines has been re-numbered and updated. Cite the correct labor code provision. Get a copy of the 2018 re-numbered Edition here.
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