In the Philippines, the relationship between a household employer and a domestic worker (Kasambahay) is governed primarily by Republic Act No. 10361, otherwise known as the "Domestic Workers Act" or "Batas Kasambahay," as well as the Labor Code in a suppletory capacity.
One of the most distressing situations a homeowner can face is the suspicion of theft. However, the urge to terminate a helper immediately must be balanced against the strict legal requirements of Due Process.
1. The Short Answer: No "Proof," No Legal Dismissal
Under Philippine law, you cannot legally dismiss a domestic worker based on mere suspicion or a "gut feeling" of theft.
Theft falls under "Serious Misconduct" or "Fraud/Willful Breach of Trust," both of which are valid grounds for termination. However, for a dismissal to be deemed legal and to protect the employer from a suit for Illegal Dismissal, two requirements must be met:
- Substantive Due Process: A valid and proven ground for termination.
- Procedural Due Process: The "Two-Notice Rule."
2. The Standard of Evidence
While you do not necessarily need a final conviction from a criminal court (proof beyond reasonable doubt) to terminate employment, you do need Substantial Evidence.
- Substantial Evidence is defined as that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
- Examples of Proof: CCTV footage, eyewitness accounts, the helper being caught red-handed, or a voluntary written confession.
- The Danger of "No Proof": If you fire a helper without evidence and they file a case with the Department of Labor and Employment (DOLE), the burden of proof lies entirely on you, the employer. If you cannot prove the theft, you may be ordered to pay backwages, separation pay, and even moral damages.
3. The Two-Notice Rule: How to Dismiss Properly
Even if you have clear evidence of theft, you cannot simply kick the helper out of the house instantly. You must follow the procedural steps required by law:
| Step | Action | Description |
|---|---|---|
| First Notice | Notice to Explain (NTE) | A written notice specifying the grounds for termination (the theft) and giving the helper at least five (5) calendar days to respond and explain their side. |
| Hearing/Conference | The Opportunity to be Heard | An opportunity for the helper to present evidence or refute the accusations, often with a witness or legal counsel if they choose. |
| Second Notice | Notice of Decision | A written notice informing the helper of the final decision (termination) after considering their explanation and the evidence. |
4. Can You Call the Police?
Yes. If you believe a crime has been committed, you can involve the Philippine National Police (PNP) or the Barangay.
- The Police Report: A police blotter or an ongoing criminal investigation can serve as supporting evidence for "loss of trust and confidence."
- Citizen's Arrest: You may only restrain the helper if you actually witnessed the crime being committed (in flagrante delicto). Otherwise, wait for authorities.
5. Consequences of Illegal Dismissal
If an employer dismisses a Kasambahay without following the steps above or without sufficient proof:
- Indemnity: You may be required to pay the helper the unpaid wages earned.
- Unexpired Portion: If there is a contract for a fixed period (e.g., 1 year) and you fire them without cause, you may have to pay the wages for the remaining months of the contract.
- Deployment Expenses: You cannot recover deployment expenses if the dismissal is found to be illegal.
6. Practical Tips for Employers
- Inventory Check: Maintain a signed inventory of valuable household items.
- Written Contracts: Ensure you have a DOLE-compliant contract that specifies "Theft" as a ground for termination.
- Preventive Suspension: If the helper’s presence poses a threat to the household during the investigation, you may place them under preventive suspension for a period not exceeding 30 days, though this is usually unpaid unless local ordinances or specific contracts state otherwise.
Important Note: Forcing a helper to sign a resignation letter or "confession" through intimidation is illegal and will be invalidated by the labor courts.
Would you like me to draft a template for a "Notice to Explain" (NTE) that complies with the Batas Kasambahay requirements?