A practical legal guide for household employers (“kasambahay”) and advisors
Bottom line: You may dismiss a kasambahay for just cause like theft only if you can prove it with substantial evidence and after observing due process. If you don’t have evidence, the legally safer path is to avoid accusing theft, end the employment in a lawful, non-stigmatizing way (observing notice requirements), and settle all earned wages and benefits.
1) The Legal Framework You’re Operating Under
- Republic Act No. 10361 — the “Domestic Workers Act” (Batas Kasambahay) and its IRR govern employment of house helpers.
- The Labor Code principles on dismissal for just causes and procedural due process are applied by DOLE/NLRC to kasambahay cases by analogy.
- The Revised Penal Code criminalizes theft; if committed by a domestic servant, it is qualified theft (heavier penalties) — but criminal liability still requires proof beyond reasonable doubt.
- The Data Privacy Act and basic constitutional rights protect privacy, reputation, and due process.
2) What Counts as “Evidence” for Employment Termination vs. Criminal Case
| Context | Standard of proof | What typically qualifies |
|---|---|---|
| Employment (admin) | Substantial evidence (more likely than not) | Credible CCTV footage from lawful areas; inventory records; receipts; access logs; admissions; eyewitness statements; chain-of-custody notes; reasonable forensic indications (e.g., time-stamped locker/room access). |
| Criminal (police/prosecution) | Beyond reasonable doubt | Stronger versions of the above, preserved and authenticated for court; in-flagrante arrest; recovered items linked to the victim; sworn statements; forensic documentation. |
No evidence (mere suspicion, rumors, hunches) is not enough to support a just-cause dismissal or a criminal complaint. Proceeding on suspicion alone risks illegal dismissal and defamation exposure.
3) Lawful Grounds Employers May Use (When Proven)
Under Batas Kasambahay, an employer may end employment for cause, including:
- Serious misconduct or willful disobedience;
- Gross or habitual neglect of duties;
- Fraud or willful breach of trust (this is where theft generally falls);
- Commission of a crime or offense by the kasambahay against the employer or any family member;
- Analogous causes.
Even for cause, you are expected to follow procedural due process (see next section).
4) Procedural Due Process (Twin-Notice Rule, Adapted for Kasambahay)
When you do have evidence and intend to dismiss for cause:
Notice to Explain (NTE). A written charge describing:
- The specific acts (what, when, where), the rule breached, and the evidence you rely on;
- A reasonable period to submit a written explanation (commonly 5 calendar days);
- The right to be assisted by a representative (family member or counsel of their choice).
Meeting/Conference. Give the kasambahay a chance to be heard, present their side, and rebut the evidence. Document attendance, questions, and answers.
Notice of Decision. A written, reasoned decision stating:
- The facts established and evidence relied on;
- The policy/ground violated (e.g., breach of trust, commission of an offense);
- The penalty (dismissal) and its effective date.
Skipping these steps risks a finding of illegal dismissal even if a ground exists.
5) When You Don’t Have Evidence (Suspected Theft Only)
If you cannot meet the evidentiary threshold, the risk-controlled approach is:
Do not label it “theft.” Avoid written or spoken statements that impute a crime without proof (to limit libel/slander risk).
End the employment without alleging just cause, and observe notice:
- Provide written notice of termination within a reasonable period (commonly 5 days).
- State neutral, non-stigmatizing reasons (e.g., “loss of trust and confidence not for cause,” “household reorganization,” “ending services without cause under the contract”).
Pay all earned amounts promptly (see §7).
Retrieve property and revoke access (keys, entry codes, devices) professionally and respectfully.
Issue a certificate of employment indicating dates and position only (avoid negative remarks).
If the kasambahay lives in, give a reasonable time to vacate (e.g., 24–72 hours) and ensure safety and dignity in the move-out.
This route avoids the legal exposure of a “for-cause theft” dismissal while still ending the employment relationship lawfully.
6) Privacy-Respectful Fact-Finding (If You Choose to Investigate)
- CCTV: May be used in common areas (kitchen, garage, entryways). Never in private spaces (bathrooms, sleeping quarters). Disclose that cameras are in use and store footage securely.
- Bag/room searches: Obtain clear, voluntary consent; ideally in the presence of a neutral barangay official or witness; document consent and findings.
- Phones and personal accounts: Do not access without explicit, informed consent.
- Interviews: Conduct respectfully; avoid coercion; keep written minutes signed by attendees.
- Chain of custody: If items are recovered, photograph, list, date/time, witnesses, and secure them; promptly coordinate with authorities if you intend to pursue a case.
7) Final Pay, Benefits, and Clearances
Even on termination without cause, pay the following on or before the release date:
- Unpaid wages up to the last day worked;
- Pro-rated 13th month pay (kasambahay are entitled to this);
- Unused leave if your contract grants paid leave beyond the minimum;
- Any other accrued benefits under the employment contract;
- SSS, PhilHealth, Pag-IBIG: remit any due contributions and give the worker the remittance proof/ID numbers.
- Provide a Certificate of Employment upon request (position and dates; avoid performance remarks).
Separation pay is not automatically required for kasambahay, unless you agreed to it in the contract or it’s part of a settlement.
8) If You Decide to File a Criminal Case
- Theft by a kasambahay can qualify as qualified theft (heavier penalties).
- Bring your evidence, itemized loss list with values/receipts, and witness statements to the police or prosecutor.
- Avoid public accusations or social media posts; let authorities handle it.
- You may pursue dismissal (administrative) and file a criminal complaint independently, but keep your employment documentation clean and rights-compliant.
9) Where Disputes Are Heard
- Money claims/illegal dismissal typically go to the NLRC (Labor Arbiter); DOLE also facilitates early dispute resolution (e.g., SEnA conferences).
- Barangay mediation can help with practical issues (move-out, return of items) quickly and peacefully.
- Always keep copies of the employment contract, IDs, payroll, contribution receipts, and all notices.
10) Practical Risk-Management Playbook (Step-by-Step)
Stabilize the situation (secure valuables, change codes, adjust duties) without accusing.
Quietly gather facts (inventory check, receipts, lawful CCTV review, witness notes).
Assess evidence strength.
- If substantial → follow due process and proceed with for-cause dismissal (§4).
- If insufficient → use the no-cause termination path with notice (§5).
Prepare documents (see templates below).
Release final pay/benefits and recover property/access.
If warranted, file a criminal complaint separately.
Document everything in a neat file (dates, times, signatures).
11) Templates You Can Use (Fill-in-the-Blanks)
A) Notice to Explain (when you do have evidence)
Date: __________
To: [Name of Kasambahay]
Address/Room: ______________________
SUBJECT: Notice to Explain
You are required to submit a written explanation within five (5) calendar days from receipt of this notice why you should not be dismissed for [breach of trust/serious misconduct], based on the following:
1) On [date/time], at [place], [describe incident].
2) Evidence: [CCTV clip dd/mm/yyyy hh:mm], [inventory sheet dated ___], [witness statement of ___].
You may be assisted by a person of your choice. A conference is set on [date/time] at [place].
Failure to submit an explanation may be construed as waiver of your right to be heard.
[Employer’s Name & Signature]B) Notice of Decision (for-cause)
Date: __________
To: [Name of Kasambahay]
After reviewing your explanation and the evidence presented, we find you liable for [ground], specifically [facts found]. In view of this, your employment is terminated for just cause effective [date].
Please coordinate with us for release of final pay and clearance.
[Employer’s Name & Signature]C) Neutral Notice of Termination (when you lack evidence)
Date: __________
To: [Name of Kasambahay]
SUBJECT: Notice of Termination (Without Cause)
This is to inform you that we are ending your employment effective [date], in accordance with our employment agreement and applicable law. This decision is not a disciplinary finding.
Your final pay (earned wages, pro-rated 13th month, and other accrued benefits) will be released on [date]. Kindly return any household property (keys, IDs, devices) on or before [date].
Thank you for your service.
[Employer’s Name & Signature]D) Inventory & Turnover Acknowledgment
Date: __________
I, [Name], acknowledge returning the following items: [list]. I confirm I have received my final pay of ₱[amount] consisting of [breakdown].
[Kasambahay Signature] [Employer/Witness Signature]12) Common Pitfalls (and How to Avoid Them)
- Accusing theft in writing without proof. Use neutral language until you truly have substantial evidence.
- Skipping due process. Even with evidence, issue NTE → hearing → decision.
- Illegal searches or privacy violations. Get consent or involve barangay officials; never install cameras in private areas.
- Withholding final pay. Release earned amounts promptly; disputes over losses should be pursued separately.
- Social media posts. These can create defamation exposure; keep matters confidential.
13) House Rules to Prevent Problems Next Time
Include these in your written employment contract/house rules (acknowledged by the kasambahay):
- Detailed duties, prohibited acts, and discipline ladder;
- Access and key/code policies; personal belongings guidelines;
- CCTV disclosure (areas covered; retention);
- Inventory protocol with periodic counts and joint sign-offs;
- Incident reporting and cooperation clause;
- Clear termination and notice provisions;
- Acknowledgments on SSS/PhilHealth/Pag-IBIG enrollment.
14) Quick FAQs
Can I fire immediately if I think she stole? Not safely. Either prove a just cause with due process or use a neutral, no-cause termination with notice.
Do I need separation pay? Generally no (unless your contract grants it or you agree to it in a settlement).
Can I keep her last salary to “offset” my losses? Dangerous. Without an adjudicated debt or a clear, written, voluntary offset agreement, do not withhold statutory/earned pay.
Can I search her bag? Only with voluntary consent (preferably witnessed). Otherwise, involve barangay officials or police if there’s probable cause.
Can I post her photo and accuse her online? Avoid. Risk of libel and privacy violations.
15) Sensible Next Steps (Checklist)
- Decide: for-cause (with evidence) or no-cause (neutral notice).
- Prepare and serve the appropriate notice(s).
- Hold the conference (if for-cause) and issue the decision.
- Compute and release final pay; collect property and revoke access.
- If warranted, file a criminal complaint (with evidence) separately.
- Organize your documentation file for any future inquiry.
This guide is informational and general in nature. For sensitive or high-risk cases, consult a Philippine labor lawyer to review your specific facts, contracts, and evidence.