HR Talk: What to Do if Someone Steals from You?

During times of financial hardships, many employer would find themselves victims of theft from the very people they trust.

In May 2021, one of my sales staff was caught stealing Php 56,000 worth of cash and jewelry via reporting fake GCash transactions which turned out to be real cash transactions, with her pocketing the money.

Another stole Php 25,000 by “borrowing” money from the cash register and depositing it late. She would tapal the sales from cash received the next day, until she stole Php 25,000. This one actually returned the money to us when caught.

Another one of my relatives found out that his niece who served as the company’s Payroll Officer had been stealing more than Php 300,000 from the company payroll by paying herself an unauthorized bonus regularly through the bank’s payroll system.

These stories are not I’ve heard many other horror stories of trusted employees who have stolen from their employers.

Whether it is because of the COVID-19 pandemic or not remains to be seen. But the common thread of all these thieves is, they have been stealing for a long time, and it was only now when the COVID-19 hit and the business owners were more focused and hands-on in auditing their businesses that they were caught. For us, we are usually on top of sales collection, but the lockdowns did not help us in monitoring, which opened the reality that some of your staff will steal when given the chance.

Theft requires a few things —

  • Greed: Maluho. I want to buy more things than others.
  • The Person’s innate character to steal from others: A leopard do not change his/her spots
  • Risk Profile: Hmmm… if I steal and get caught, the consequences are minimal. Hence, I will steal because they won’t file a case against me
  • A Desperation or Need: I need money NOW, which is why a lot of drug addicts steal
  • Influence and the environment: If others are stealing, I will too. My father stole, I will too.
  • Opportunity/Temptation: Ooooh, nobody is looking! Lemme get that. Or the cabinet is unlocked, let me steal the jewelry.
  • Ignorance and stupidity: Undertime is stealing? Getting the office stapler is stealing? Nobody will notice if I took an apple from the kitchen.

Most Common Types of Workplace Theft:

Embezzlement is defined as theft or malfeasance (bad actions) by employees or other trusted individuals within the business., where the employee steals or diverts the funds of company to that of the thief. Here are some of the most common moduses of theft found in the workplace. Which ones are more familiar for you?

    • Raiding the petty cash or cash box
    • Stealing office supply, raw material or equipment, products and returned products
    • Theft of services: Employee discount, use of services for free, charging client for services but not remitting the money to employer
    • Theft of time: Falsify time records and charge company for unworked time (usually overtime), use of time for non-worked time.
    • Claim that money or laptop was lost due to budol budol: But secretly pocketed the money
    • Forgery: Forging and encashing checks, forging company documents or signatures,
    • Faking vendors payments: You think you’re paying your vendor, but EE pays the money to himself
    • Overbilling customers: And they pocket the difference
    • Theft of customer card data
    • Padding an expense account: Alleging that expense is company expense, but is used as personal expense
    • Double dipping: Charging for reimbursement twice
    • Voids transactions at the cash register: And pocketing the cash. If audit of inventory is slow, you won’t see the stocks are missing
    • Hiring and paying off “fake” employees: Happens often in construction when there’s no paper trail
    • Failure to Remit Tax, Statutory Benefits and Pocketing the Difference — It becomes big if the payroll officer does not remit the entire SSS, Philhealth and Pagibig benefit and loans for the company.
    • Collecting Kickback from Vendors without Owner’s Information
    • Selling Trade Secrets or Data
    • Identity Theft: Using company authorization to sell other items
    • Starting a business using company resources (money or time)
    • Other similar acts as above

Regardless of the reason, THEFT is a criminal offense. And if you catch your staff stealing, it is within the right of the victim to file a criminal case against them.

Given the betrayal and disappointment, I know of many companies/HR officers/business owners who find themselves clueless on what to do when an insider steals from them. Do they fire these people immediately? How do they recover the money? What can they do to protect themselves further from theft?

It can also be traumatic.

Many businessmen I know question their judge of character — If Nora, my second in command stole from me, then how else can I trust others? If siya nagnakaw, paano pa ang iba?

However, theft is more common than you think. If you are an HR in a company, or a manager operating a business, if you have lax controls, you will find yourself dealing with theft inside the company. This is why in today’s entry, my topic is HR Talk: What to Do if Someone Steals from You? The post is broken down into a few relevant areas:

  1. The Difference between Theft, Qualified Theft, and Estafa (Swindling) and Fraud
  2. Penalties for Theft and Qualified Theft
  3. How do the Courts Set the Value of the Stolen Items
  4. Warning Signs that an Employee is Stealing
  5. How to React When Someone from Your Company Stole from You? The Importance of Due Process
  6. Step by Step Guide on How to Terminate Someone Who is Stealing
  7. Can You File a Qualified Theft Case Against Someone Even if Nobody Saw Him/Her Taking the Money?
  8. How to Prevent Future Workplace Theft

It’s a super long article so we should start. Here’s what to do when someone you trust steals from you.


HR Talk: What to Do if Someone Steals from You?

I. Definition of Terms: What is the Difference Between Normal Theft vs. Qualified Theft vs. Estafa

Theft happens when three things occur:

  1. The actual act of taking property that belongs to another without the use of violence, intimidation, or force upon persons or things;
  2. The intent to gain on the part of the taker; and
  3. The absence of the owner’s consent.

This is why when a customer swipes an item from the counter, or a petty thief steals your bag, this is what you call THEFT.

But when a person of confidence and trust steals from you, only then will it be called as QUALIFIED THEFT.

Qualified Theft is when there’s Grave Abuse of Confidence

Qualified theft however occurs when there is all that’s mentioned above PLUS the act was done with a GRAVE ABUSE OF CONFIDENCE. This means that not only was something stolen, but there is a high degree of confidence between the perpetuator and the victim, which the perpetuator abused.

This is why people who are in a position of trust and confidence are usually charged with Qualified Theft and not simple theft.

 

Whether or not there is an actual gain is irrelevant. The more important consideration is the INTENT to gain. Which is why those sales staff or kasambahays who said that they were fooled into giving someone else the money can still be charged with Qualified Theft (GR No. 225735, People of the Philippines vs. Belen Mejares Y Valencia, January 10, 2018).

The penalty of Qualified Theft is obviously heavier given that they have betrayed the trust and confidence of their employer. Hence, according to Article 310 of the Revised Penal Code, qualified theft is punishable by 2 degrees higher than normal theft.

The logic is sound.

Compared to a normal thief, a person who commits qualified theft is someone who abused their employer’s trust and confidence. Because they were trusted, the employer gave them the responsibility of protecting and safekeeping the employer’s loved ones and properties. Stealing from such employer is a blatant betrayal of trust and warrants a higher penalty.

Article 310. Qualified theft. – The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. (Emphasis supplied.)

Meanwhile, Estafa or Swindling is committed when the act was done a) with unfaithfulness or abuse of confidence; b) by means of false pretenses or fraudulent acts; and c) through fraudulent means.

Nicolas & De Vega Law Offices explain Estafa by means of deceit as follows:

  1. That there must be a false pretense or fraudulent representation as to the offender’s power, influence, qualifications, property, credit, agency, business or imaginary transactions;
  2. That such false pretense or fraudulent representation was made or executed prior to or simultaneously with the commission of the fraud;
  3. That the offended party relied on the false pretense, fraudulent act, or fraudulent means and was induced to part with his money or property; and
  4. That, as a result thereof, the offended party suffered damage.

In short, dapat may intentional na lokohan from the side of the perpetuator to the thief, making the victim feel that the transaction was legit. Specifically:

  • There must be a false pretense, fraudulent acts or fraudulent means;
  • Such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud;
  • The offended party must have relied on the false pretense, fraudulent act or fraudulent means and was thus induced to part with his money or property; and
  • As a result thereof, the offended party suffered damage.

II. Penalties for Theft and Qualified Theft

Qualified theft is a crime that is punishable under Article 310 of our Revised Penal Code. It is a grievous offense since its penalty is automatically raised two degrees higher than that usually imposed on simple theft.

To my surprise however, the laws of the land used to merit heavier punishments for thieves. It used to be that theft imposes one year for stealing Php 22,000 and another year in jail for every Php 1,000 you stole.  Hence, if you stole Php 30,000, that’s pretty much 9 years in prison. This meant that following the old rules, unadjusted for inflation, the domestic helper who steals from his employer would be meted out a maximum of:

a) 6 years in prison for a toothbrush worth ₱5;
b) 12 years in prison for a lipstick worth ₱39;
c) 14 years and 8 months in prison for a pair of female slippers worth ₱150;
d) 20 years in prison for a wristwatch worth ₱19,000; or
e) 30 years in prison for a branded lady’s handbag worth ₱125,000.
Now, the government felt that this was way too heavy a penalty for a mere thief. How can it be that a thief would merit the same punishment as someone who committed manslaughter for example?

Hence, our dear President Rodrigo Duterte changed all that when he signed RA 10951, An Act Adjusting the Amount or the Value of Property and Damage on Which a Penalty is Based and the Fines Imposed Under the Revised Penal Code, Amending for the Purpose Act No. 3815, Otherwise Known as “The Revised Penal Code”, as Amended into law last August 29, 2017.

While it has a controversial section punishing people who publish fake news, RA 10951 did significantly lessen the penalties imposed towards thieves. Specifically, under Section 81. Article 309 of the same Act was amended to as follows:

“Art. 309. Penalties. – Any person guilty of theft shall be punished by:

“1. The penalty of prisión mayor in its minimum and medium periods, if the value of the thing stolen is more than One million two hundred thousand pesos (₱1,200,000) but does not exceed Two million two hundred thousand pesos (₱2,200,000); but if the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one (1) year for each additional One million pesos (₱1,000,000), but the total of the penalty which may be imposed shall not exceed twenty (20) years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prisión mayor or reclusion temporal, as the case may be.

“2. The penalty of prisión correccional in its medium and maximum periods, if the value of the thing stolen is more than Six hundred thousand pesos (₱600,000) but does not exceed One million two hundred thousand pesos (₱1,200,000).

“3. The penalty of prisión correccional in its minimum and medium periods, if the value of the property stolen is more than Twenty thousand pesos (₱20,000) but does not exceed Six hundred thousand pesos (₱600,000).

“4. Arresto mayor in its medium period to prisión correccional in its minimum period, if the value of the property stolen is over Five thousand pesos (₱5,000) but does not exceed Twenty thousand pesos (₱20,000).

“5. Arresto mayor to its full extent, if such value is over Five hundred pesos (₱500) but does not exceed Five thousand pesos (₱5,000).

“6. Arresto mayor in its minimum and medium periods, if such value does not exceed Five hundred pesos (₱500).

“7. Arresto menor or a fine not exceeding Twenty thousand pesos (₱20,000), if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed Five hundred pesos (₱500). If such value exceeds said amount, the provisions of any of the five preceding subdivisions shall be made applicable.

“8. Arresto menor in its minimum period or a fine of not exceeding Five thousand pesos (₱5,000), when the value of the thing stolen is not over Five hundred pesos (₱500), and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.”

I wonder why they can’t just make a simpler Excel sheet to summarize the above. To save everyone’s sanity, I have summarized the above-mentioned penalties to an easy-to-understand table below:

Qualifie

So as you can see, the penalties for theft ain’t as hefty as it was before 2017. Before, the penalties for theft was heavier as quoted in GR No. 225735, People of the Philippines vs. Belen Mejares Y Valencia, January 10, 2018.

What makes it more complicated is that the penalties for fraud and estafa (swindling) are different pa than mere thievery!

This is the punishment metted out to someone guilty of Estafa:

And this is the punishment naman metted out for Fraud:

As you may notice, slight differences to the penalties given to the different crimes.

III. How do the Courts Set the Value of the Stolen Items?

Now, if the items that were stolen were allegedly valued at Php 1.5 million for example — the one whose items were stolen from have to prove that this is the true value and not just an arbitrary value claimed by the victims.

As to set how much exactly was stolen so that the courts can decide on a penalty under Articles 309 and 310 of the RPC as amended, the courts would want the prosecutor to present more than an uncorroborated estimate.

The value must be independently and reliably set, otherwise the courts will either apply the minimum penalty under Article 309 or fix the value of the property taken based on the attendant circumstances of the case. So, without any reliable evidence outside the prosecutor’s uncorroborated testimonies, the Courts will unfortunately impose the minimum penalty under Article 309(6) of the Revised Penal Code, as amended by Section 81 of Republic Act No. 10951, which is arresto mayor (1 month and 1 day to 6 months).

However given that it’s Qualified Theft, which requires a penalty 2 degrees higher, the penalty will then become Prision Correccional in its medium and maximum periods which is equivalent to 2 years 4 months and 1 day to 6 years.

So more important than filing a case, you also have to determine with certainty and with independence the value of what was stolen. Otherwise, you will find your suspect charged with a lesser penalty than you thought.

IV. Warning Signs Employee is Stealing Money

Here are some red flags that an employee may be stealing:

  • Excessive personal spending beyond the salary
  • Employee refuses to take a vacation in case the replacement detects the theft
  • Employee wants to take work home or continually works overtime
  • Petty cash disappears too fast
  • Employee has an unusually close relationship with one or more vendors or are related to independent contributors who work for you
  • Employee is suffering financial difficulties
  • Employee has excessive control issues

If you notice an employee is suddenly driving an expensive car or taking expensive vacations, theft is possibly an issue.

V. How to React When Someone from Your Company Stole from You? The Importance of Due Process.

When an employee steals from the company, the worst way for a company to react is to react violently and fire the person on the spot, or look the other way and act as if no crime occurred. Looking the other way encourages further issues, not just with the thief but with other employees. Before you know it, the entire office is now stealing from the company, and the owner has nobody to blame but themselves.

There are three proper ways for a company to act:

a. Investigate the crime thoroughly. The employer must actually have enough evidence to establish that there’s probable cause/reasonable belief that the employee committed the crime. If you do not have enough evidence, you cannot terminate the poor sap, then

b. Follow due process in terminating the employee if the employee truly committed theft, and

c. File a criminal case against the employee for Qualified Theft/Estafa/Fraud.

To Terminate a Staff from the Company, 1) The Cause has to be Substantative (e.g., Just or Authorized Causes), and 2) Due Process Must Be Followed

Substantive means there is a good reason on why you’re firing the person. You can’t just fire a person in the Philippines just because he/she was involved in an offense. You have to show proof that there are rules/policies he/she’s disobeyed, or there is reasonable doubt that he/she has committed the crime. Mere claims without proof may weaken your case to fire an employee.

There are two reasons why:

  1. Employees in the Philippines enjoy Security of Tenure.


Source: Security of Tenure, LV Rich Publishing

This means, you can’t fire someone just because you hate his face. Unless they are probationary employees who failed their evaluation and are suited unfit from being regularized within their 180th days of employment, there are only two standard reasons when you can terminate someone’s employment:

2. Filing a criminal case of Qualified Theft against the employee is NOT totally binding with the labor tribunals. In other words, whatever may be the result of the criminal case may not affect the results in a labor case (Source: Alburo Law).

IMPORTANT: This means that when faced with Labor Arbiters, the crime of qualified theft DOES NOT necessarily mean that there exists a valid ground for their termination from employment especially when the employer merely relied on the resolution of the prosecution.

That is why, before you terminate an employee, the HR/business owner must ensure that there is enough proof to show that the employee has reasonably done the offense. This means that you can’t fire a person just based on hearsay that the person has stolen company property or money. You really need to roll up your sleeves, dig up the dirt, build up the evidence on how, where, when, why, and what the employee has stolen.

Now, it is not important that an employee has stolen millions to be terminated. As proven by jurisprudence, a mere roll of used tape is enough to get the employee VALIDLY and LEGALLY firedStealing falls under Serious Misconduct, potentially Fraud, and/or Willful Breach of Trust.

Divina Law defines these as the following:

  •  Serious Misconduct: An action that shows the employee to be of such grave and aggravated character. It must relate to the performance of the employee’s duties. It must be shown that the employee becomes unfit to continue working for the employer.
  • Fraud or willful breach of trust: There must be an act, omission or concealment on the part of the employee, which involves a breach of legal duty, trust, or confidence justly reposed. It must be committed against the employer or his/her representative and must be in connection with the employer’s work.
  • Loss of confidence. The employee commits an act, omission or concealment which justifies the loss of trust and confidence of the employer to the employee. The employee concerned must be holding a position of trust and confidence. The loss of trust and confidence should not be simulated, and should not be used as a subterfuge for causes which are improper, illegal, or unjustified. Also, it must be genuine and not a mere afterthought to justify an earlier action taken in bad faith.

Stealing company property falls under Serious Misconduct. As Atty Persida Acosta has written in her Manila Times Article, “Termination of an Employee Caught Stealing,” she writes:

In the case of Reno Foods Inc. vs. Nagkakaisang Lakas ng Manggagawa – Katipunan (G. R. No. 164016, March 15, 2010; ponente, Associate Justice Mariano del Castillo), the Supreme Court stated that “theft of company property [is] a serious misconduct.” Thus, commission of the crime of theft amounts to serious misconduct, which gives you a ground to terminate your employee under Section 297 of the Labor Code that provides that “[a]n employer may terminate an employee for serious misconduct… xxx”

In the case of Reno Foods Inc. stated above, the Supreme Court said “a criminal conviction is not necessary to find just cause for employment termination” (Supra). Accordingly, you may terminate your employee on the ground of serious misconduct without the need to file a separate criminal action against the employee.

Beyond having a valid reason to terminate, the company must also follow due process before termination.

Atty. Acosta reminds us, To be compliant with the procedural due process requirements in terminating an employee, you must notify the employee of his infraction/s and give the employee an opportunity to explain or defend his/her acts or omissions. Also, the employee must be informed of the decision of the employer to terminate the employment.”

IMPORTANT: The company must ALWAYS follow due process when terminating an employee. Regardless on whether the employee stole from the company or murdered a co-worker, the company CANNOT fire a person at will. Instead the person must be given due process BEFORE he/she can be fired.

Due Process constitutes of two things:

  1. Twin Notice Rule: The employer must send the employee two written notices before the termination of employment can be effected:
    1. 1st Letter: Informs the employee on what offenses he’s done which possibly merits dismissal if proven true. This is where you place as well the rules/policies he/she did not follow in committing the offense, and
    2. 2nd Letter: Informs the employee of the company’s decision to terminate his employment
  2. Hearing is optional so long as the employee was given the opportunity to be heard.

In short, this is the Due Process that every company must follow:

 

If you want to be more specific, here’s the step-by-step guide on what due process means:
Source: Slideshare

VI. Step by Step Guide on How to Terminate Someone Who is Stealing

When you find out that someone in your company might be stealing:

          1. Company must determine that a crime indeed occurred. 

In termination cases, the burden of proof rests on the EMPLOYER
to show that the dismissal is for a just cause.

IMPORTANT: This means that you can’t terminate someone for theft just because you allege that he/she stole from you. There has to be enough EVIDENCE which leads to probably cause or reasonable belief that the suspected employee is the culprit. 

Hence, while it’s better if there is a CCTV or the person was caught in the act, an employee can still be charged with Serious Misconduct if there is a circumstantial evidence that shows that the employee unjustly enriched himself/herself by breaking the trust of the employer and has stolen from the warehouse/ cashbox / bank account / etc.

          2. If you can, gather enough evidence BEFORE you face the person. When I found out that my administrative assistance was embezzling cash, I quietly just gave an excuse and moved that responsibility away from her, and for 3 months, tolerated her while I gathered more evidence to confirm whether or not she  was actually stealing money from us.

         3. Call your lawyer for assistance from the time you discover the alleged crime.  Get good advice. Ask him for help to organize the evidence. Start drafting the incident report and the Complaint Affidavit which you will use later when filing a case for qualified theft.

4. Only when you are ready, and your proof is possibly enough to terminate a person for Serious Misconduct should you face the person. 

It is only after we have gathered enough evidence, that we faced the person. We called the person to the conference room, and presented to her what she did, showing her all the evidences we have gathered to prove that she indeed stole the money, and up to how much.

Pick your words carefully — It’s better to accuse the employee of “violating company policy” or of a “cash handling violation” than to straightforwardly accuse him or her of “theft”.

Our Incident Report was thorough as we were already preparing our position paper. We then presented her with:

          a. The Incident Report documenting all the charges against her, plus scanned proofs/evidences

          b. Notice to Explain (NTE) for her to respond the allegations. Deadline of submission is 5 days.

          c. We also informed her by writing that she is under Preventive Suspension for 30 days max while we investigate the offense.

Preventive suspension of up to 30 days can be issued when an employee’s continued employment posed a serious and imminent threat to the life or property of the employer or of the employee’s co-workers. In the case of a thieving employee, it can be said that suspected employee posed a danger on the properties or personal belongings of the officers or employees.

Always keep an eye of the employee once you present the evidence to him/her. Change all passwords and back up your computers

Place the employee in Preventive Suspension for 30 days to avoid the employee from stealing some more, destroying evidence, or take photos. It is very important that to adhere to company policies when you issue a Preventive Suspension.

He/she can erase evidence against him, or steal even more money before he/she can escape.

Hence, a preventive suspension of up to 30 days must be issued so that the offending employee will not create even more havoc with his employer while the investigation is taking place.

          d. We also informed her by writing that there will be an Administrative Hearing in 2 weeks to give her the chance to explain. She can bring her own counsel if she wants.

Note: This is usually the time when they breakdown and cry. To be fair, we usually give the employee a chance to confess to the crime. Those who confess are usually given more mercy as it shows me that maybe, there’s some remorse for the crime they have committed. This is also the time when many would file their resignation out of shame, of which we will ACCEPT, before placing them on Preventive Suspension.

My girl confessed and put her confession in writing. When a person regretfully confesses, we will usually discuss on how they can correct their crime. I am usually amenable to them paying the money back so I won’t charge them with Qualified Theft. While I will still terminate them following due process — a thief will always be a thief —  the parents and I will usually have an agreement on how to clear the theft so at least, their child would not have a bad criminal record against her.

In February 2016, my assistant stole Php 220,000.00 from me and I was distraught. While I did file a qualified theft case against her, I did drop it two years later after she and her family paid the company Php 10,000 per month back. Ironically, she is working in HR in a company in Quezon City. I do not harbor ill feelings against her, and despite what she did, I am glad she had a fresh start because she’s at least tried to make amends and correct her mistake.

When Someone Betrays Your Trust

       5. We would then accompany her to the barangay for barangay blotter, and then to the police to file a police report. Our driver was ready, and we were all set to go. Depending on the police, they would sometimes jail the person. However, in our case, the thief was allowed to go home.

6. During her Preventive Suspension, I would then dig for more evidences of her crime, and perfecting my documents in filing a Qualified Theft case with the lawyer. I would think of any issues the Complaint Affidavit might have, and produce documentary evidence to plug that hole. In every qualified theft case I have filed, my attached annex proving that the staff indeed committed the crime would thick. My last Qualified Theft case had Annex A to M.

7. We would still hold the Administrative Hearing as scheduled. The employee is given a chance to explain. If he/she failed to show up, we will have the Minutes signed and noted that he/she failed to show.

If the employee showed up, we will then inform him/her on why we are charging her with Serious Misconduct, show him/her each of the documentary proof we have against him/her, and thus build up the case on why he/she was the only one who could have committed the crime, and why he/she is being terminated for it.

This is actually great for those who bring in their spouses and families who will vehemently claim that their employee is NOT a magnanakaw. Once I actually provide the extensive evidence against the employee, almost all of them would quieten and shut up, then talk to us on how to reconciliate so that we won’t file a Qualified Theft case against the staff.

I have actually gotten Php 24,000 of stolen money back through this, after I showed the staff’s family HOW she did it, WHEN she did it, and HOW MUCH she actually stole. In light of the heavy evidence, the aggressive family backed out and played nice, and actually deposited the stolen money in exchange for us dropping the case. They also forced their daughter to resign.

       8. After Five days of the administrative hearing, we will send a Notice of Decision Summarizing the case, and informing the staff he/she is terminated.  

IMPORTANT: You need to send him/her a Notice of Decision. Without it, the Twin Notice rule is not followed.

IMPORTANT: While the case is ongoing, DO NOT discuss the situation with other employees or outsiders. 

Revealing confidential information about the situation or those involved can ruin the credibility of the investigation. And for goodness sakes, do not be stupid to post the staff’s information to the public — on Facebook, social media, or posted in other visible areas at work — before there is any conclusion that he/she is guilty of the crime.

Alleging the person has stole is NOT THE SAME as proving that the person truly stole. Do not be stupid to open yourself up to a libel suit because you take special glee in shaming an employee who you think stole from you.

     9. Once we have properly terminated the employee, we will then file a Qualified Theft case against the person with the prosecutor’s office that same week to the Office of the City/Provincial Prosecutor (OCP) of the place where the crime of stealing was committed.

IMPORTANT: Filing a criminal case of qualified case IS NOT EQUAL to having probable reason of Just Causes in firing an employee.

Alburo Law is clear in their explanation:

In the procedure before the Labor Arbiters, the crime of qualified theft DOES NOT NECESSARILY mean that there exists a valid ground for their termination from employment especially when the employer merely relied on the resolution of the prosecution.

Citing the 2015 case of Copy Central Digital Copy Solution vs. Domrique et al., (G.R. No. 193219), a criminal conviction is not necessary to find just cause for employment termination. Otherwise stated, an employee’s acquittal in a criminal case, especially one that is grounded on the existence of reasonable doubt, will not preclude a determination in a labor case that he is guilty of acts inimical to the employer’s interests. In the reverse, the finding of probable cause is not followed by automatic adoption of such finding by the labor tribunals. In other words, whichever way the public prosecutor disposes of a complaint, the finding does not bind the labor tribunal.

In the said case, the employer argued before the labor tribunal that since the prosecutor found probable cause for qualified theft and subsequently filed criminal information against the erring employee, the labor tribunal must follow the finding as a valid reason for their termination from employment. The Supreme Court was not convinced. The criminal case for qualified theft and the just cause for its dismissal are different.

Thus, in order to convince the labor tribunals that there is a valid cause for the dismissal of the employee, employers shall still prove the substantial aspect in a labor case, which is, the dismissal is due to serious misconduct and/or loss of trust and confidence and also, that there is proper observation of procedure in terminating the employee.

Source: Theft Inside the Company Premises, Alburo Law

       10. Attend every subpoena issued by the Office of the City/Provincial Prosecutor (OCP).

The OCP will issue a subpoena to the suspected employee, and will require him/her to appear on a certain date and time to submit his or her Counter-Affidavit. The purpose of the subpoena is to require the respondent to file his counter-affidavit within 10 days from receipt of the subpoena and the complaint (Section 3 (c), Rule 112, Rules of Criminal Procedure).

Upon receipt of the Counter-Affidavit from the employee, the Company may file a Reply-Affidavit to answer any new issues the employee has raised. Once the Reply-Affidavit is submitted, the suspected employee may file a Rejoinder-Affidavit. This process is now known as Preliminary Investigation, a process to know whether or not there is probable cause that the suspected employee committed the crime charged against him.

This is the reason why the justice system is slow. The Philippine Justice System gives everyone proper due process to defend themselves. It is not what the company owner believes that filing a qualified theft case is sufficient to prove guilt.

It’s not — Your evidence must be substantative and thorough to ensure that the person committed the crime. Which is why, a manager must be very detail-oriented when building up a theft case against an employee. Hindi pwede mano mano lang. 

Failure to attend a court’s subpoena may be punishable by indirect contempt of court. The punishment for indirect contempt under Section 7 of Rule 71 of the Rules of Court is:

“Section 7. Punishment for indirect contempt. — If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos (P30,000) or imprisonment not exceeding six months, or both. If he is adjudged guilty of contempt committed against a lower court, he may be punished by a fine not exceeding five thousand pesos (P5,000) or imprisonment not exceeding one month, or both. If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved.”

So best show up to every subpoena. Huwag nang tumago. If you are innocent, just state your case and present all evidence of innocence when the court asks you to.

       11. Once the OCP concludes the Preliminary Investigation, the OCP will then issue a decision denying if there is no probable cause found, or a decision finding probable cause which comes with it the issuance of warrant of arrest and information against the accused.

VII. Can You File a Qualified Theft Case Against Someone Even if Nobody Saw Him/Her Taking the Money?

We derive our answer from G.R. No. 176114, Grace San Diego Y Trinidad vs. The Honorable Court of Appeals, April 8, 2015:

Petitioner also asserts that the People did not present any witness who categorically testified that petitioner ran away with the supposed missing funds. She claimed that the demonstration that some checks of varying amounts not recorded in petitioner’s books notwithstanding their return or dishonor, only proved her incompetence in the performance of her assigned task and not necessarily criminal authorship.

This Court does not agree. It was held in People v. Ragon that resort to circumstantial evidence is inevitable when there are no eyewitnesses to a crime.18 Direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt.19 The courts are allowed to rule on the bases of circumstantial evidence if the following requisites concur: (1) there is more than one circumstance, (2) the facts from which the inferences are derived are proven, and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.20 The corollary rule is that the circumstances established must constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person.21

This means, if the victim can prove beyond unreasonable doubt that only Anna and Anna alone could have stolen the items, then Anna cannot escape the case of Qualified Theft. For example:

  • It is clear that only Anna for example holds the key to the warehouse, and only she can access it, or
  • It is only Anna who is able to access the payroll system and pay herself the money. The money was then transferred to her account regularly, or
  • It is only her who touched the items that went missing that day. Nobody else was present to have stolen it, or
  • Anna was not authorized to touch the items. However, she still brought it to the thieves, and despite other people trying to stop her, she still continued to take the items from her employer’s cabinet, and gave the items to the budol budol gang.
  • And other similar occasions of theft proven by circumstantial evidence.

VIII. How to Prevent Future Workplace Theft

1. Construct a strong, no-bulls*t policy against it.

People will still steal, but at least, you are very clear from the labor standard that theft — even if it’s just one piece of duct tape — is an offense that’s terminable via Serious Misconduct.

2. When you catch someone stealing, be very thorough in your investigation and make sure that your evidence against the person is STRONG: If people know you are thorough in chasing after thieves, it’s a big deterrent from them stealing from you.

a. Gather solid evidence before accusing an employee of theft. It’s essential to be able to prove that the theft occurred so you can take appropriate action. It’s also important to be 100% positive that you’re confronting the right person.

b. Find CCTV, get notarized affidavits of trustworthy witness.

c. Gather facts, study behavior, note timings and compile documents that show the discrepancy. Audit the files and financial records, always with a witness to prevent the accusation that evidence was faked.

d. Organize the reports as if you will file legal action. The evidence is supposed to be relevant and meaningful because they back up the accusation that is made.

e. Weak evidence will get the company in trouble as employee can prove that her dismissal for just cause was illegal.

3. Report to the authorities: Notify the barangay and the police and get the blotter and report, respectively. Take legal action when someone is caught stealing. 

4. Be Consistent with Consequences: When people see how you treat qualified theft cases regardless of position, those who are relatives or are in the top will also be discouraged from stealing.

5. Rectify the breach of security: If you know that a step in your SOP is open to stealing, make sure you close the gap to stop anybody else from stealing again.

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