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FRAUD OR WILLFUL BREACH OF TRUST IN THE CONDUCT OF ONE’S JOB

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Jaht


Arresto Menor
Hello Atty. Sana mabigyan nyo po ako ng advise about sa situation ko.

I am a regular employee as a  home-based technical support representative. Yung pinaka trabaho namin ay i-remote access yung computer ng mga customers para i-fix yung mga problems like viruses and performance issues.  Meron kami ginagamit na REmote control program (LogMein) para gawin ito. Sa tool din po na ito makikita mga incoming na customers sa queue. Makikita dito yung contact information ng customer  just in case kailangan namin sya tawagan.
Last February 13, i made a screenshot of the program. I posted this on My Facebook wall just for fun. Naka-tag po dito yung isang friend ko na kasamahan ko din sa trabaho.  That said Facebook post was intended to be viewed only by my colleagues. I have always set a rule on my FB profile about who can only view my posts.  This rule is a list of Facebook friends: friends who are in the same line of business. I deleted the post the moment na sinabihan ako nung supervisor ko.Today, I was issued a memo by my Boss about that.
Eto po yung nakalagay sa memo :

"On February 13, 2014 at approximately 2:00 PM Manila, you posted a LogMeIn screenshot on Facebook, a public domain, which contained confidential customer information. Please send us your explanation within 48 hours as to why no sanction must be served.
As per company policy, Article F.3 and C.5 state that “Disclosure of Company documents to unauthorized persons/personnel with or without loss to the Company” and “Fraud or willful breach of trust in the conduct of one’s job” respectively, will subject you to a disciplinary action."


Eto po yung question ko.
Based sa handbook namin...
1. Violation of confidentiality of the Company records. :  30 days suspension 2nd offense Dismissal
2. Fraud or willful breach of trust in the conduct of one’s job. :Dismissal
3. Disclosure of  Company documents to unauthorized persons/personnel with or without loss to the Company : Dismissal


Meron po ba ako laban dito just in case they decide to terminate my employment?
Bago po ako magbigay ng written explanation, hihintayin ko muna yung advise nyo. Maraming salamat po!



Last edited by Jaht on Tue Feb 18, 2014 11:47 am; edited 2 times in total

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HR Adviser


Reclusion Perpetua
Based on your narration, what you did is a clear violation of your policy given utmost trust by your customers to remote their computers and view their personal data. Your act of screen shot and placing it on facebook (even if you have managed your privacy) is considered a breach of trust.

Just explain your side. Also, argue that the NTE should be 5 days and not 2 days.

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Jaht


Arresto Menor
Yes HR Adviser. Alam ko po na na-violate ko yung Policy namin. Pero regarding po dun sa screenshot, kami lang naman po nakakakita nun. Everyday we see the same stuff, all of us. Meron lang isa sa amin na nag-screenshot nung post ko tapos sinend sa Boss namin.
Ano po pwede ko gawin just in-case they decide to terminate my employment? Hopeless na po ba ito sa opinyon nyo?

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HR Adviser


Reclusion Perpetua
It is not an excuse to screenshot and post it on facebook. You can site the situation wherein your colleague did the same and emphasize that first offense is only 30 days suspension. If ever you are terminated, you can try filing for illegal dismissal but i'll tell you ahead of time that breach of trust is a terminable offense.

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Jaht


Arresto Menor
Thank you for your response.
HR Adviser wrote:You can site the situation wherein your colleague did the same and emphasize that first offense is only 30 days suspension.  
There are three possible grounds na nakikita ko sa Handbook namin regarding this. Based on your advise, I should emphasize on the first one.  Dun sa memo, yung 2nd and 3rd grounds yung basehan nung Boss namin. Ano po kaya ang best advise para ipilit ko yung 30-day suspension na lang?

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council


Reclusion Perpetua
Jaht wrote:Thank you for your response.
HR Adviser wrote:You can site the situation wherein your colleague did the same and emphasize that first offense is only 30 days suspension.  
There are three possible grounds na nakikita ko sa Handbook namin regarding this. Based on your advise, I should emphasize on the first one.  Dun sa memo, yung 2nd and 3rd grounds yung basehan nung Boss namin. Ano po kaya ang best advise para ipilit ko yung 30-day suspension na lang?

I don't think there is any way to separate each.

See if you can explain to us here why you should only be suspended. Tell us why your employment should not be terminated. If you can prove that there was no fraud or wilful breach or disclosure of information, then you have a chance. Otherwise, these three almost always go together.

I've handled a similar case also and am quite aware of possibilities for this scenario.

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Jaht


Arresto Menor
council wrote:
I don't think there is any way to separate each.
See if you can explain to us here why you should only be suspended. Tell us why your employment should not be terminated. If you can prove that there was no fraud or wilful breach or disclosure of information, then you have a chance. Otherwise, these three almost always go together.
Eto po siguro yung pwede ko gawin na explanation:
I understand that Facebook can be a public domain. However, the screenshot was seen only by the people who are in the same field of work. It was deleted immediately when one of our supervisors notified me. The information was not further disclosed or seen by other people.  
I never copied, saved or disclose any customer info (phone numbers, email add, etc.) for any purpose other than work. Also I have been a good and loyal employee, I could never find a reason to intentionally break the trust of the company.
It was an honest mistake. I understand that I violated the confidentiality of our company records but it was not an intentional breach of trust.
council wrote:
I've handled a similar case also and am quite aware of possibilities for this scenario.
Sa situation ko po, ano sa palagay nyo ang magiging possible outcome?

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council


Reclusion Perpetua
Ganyan din ang binigay na paliwanag sa akin.

Question - how sure are you na walang ibang nakakita? How can you prove that during the time it was discovered, kayo-kayo lang ang merong access sa image na iyon?

Secondly, how can management be assured that all you did was do a screenshot when you could have done any other actions on the remote computer (copying files, deleting files, etc)?

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Jaht


Arresto Menor
Kakauwi ko lang po galing sa office namin. Napagkasunduan daw po ng management na termination of employment. Agad ako pinasulat nang written explanation, nagkaroon sila ng deliberation over skype, at pinapirma ako for the receipt of my termination paper.

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council


Reclusion Perpetua
Jaht wrote:Kakauwi ko lang po galing sa office namin. Napagkasunduan daw po ng management na termination of employment. Agad ako pinasulat nang written explanation, nagkaroon sila ng deliberation over skype, at pinapirma ako for the receipt of my termination paper.

At dahil dyan, pag meron ka nang copy ng decision, pwede ka na mag file ng illegal dismissal dahil walang due process.

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Jaht


Arresto Menor
Pwede ko po ba maitanong, in what grounds na violate yung Due Process of Termination?
Please enlighten me. Thank you.

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council


Reclusion Perpetua
Jaht wrote:Pwede ko po ba maitanong, in what grounds na violate yung Due Process of Termination?
Please enlighten me. Thank you.

Check if the following procedures were done completely. If any is missing then....



To clarify, the following should be considered in terminating the services of employees:

(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.

(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.

(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.

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Jaht


Arresto Menor
What if these three key pointers stated above were all applied in one single day?

Yesterday at 3AM, my boss called me in Skype. He notified me that the management has become aware of the said violation . He told me not to log in to work, and it will be a paid leave. Sabi nya sa akin, may isesend sya na email that I need to reply to within 24-48 hours. Sinabihan nya ako na magpunta ng office namin 10pm para makapag-usap kami.
So nagpunta ako sa office. Pagdating ko, agad na pinagawa at pinasend yung Explanation ko via email. Pagka-receive nya ng email, sinabihan nya ako that he will conduct a meeting with the management about the deliberation. Approximately 3:30am natapos na yung meeting and dun palang kame nakapag-usap ng 1 on 1. He already had the print-outs ready. These printouts were the written notice, the explanation that I sent, and the Notice of Decision.

First, inexplain nya sa kin yung offense and yung sanction which was dismissal. As you have advised me on the previous posts, I tried to emphasize on the 30-day suspension instead of dismissal. Sabi nya, the decision was final. Wala na po ako nagawa at pinirmahan ko nalang yung Notice of Dismissal.

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council


Reclusion Perpetua
Jaht wrote:What if these three key pointers stated above were all applied in one single day?

Yesterday at 3AM, my boss called me in Skype. He notified me that the management has become aware of the said violation . He told me not to log in to work, and it will be a paid leave. Sabi nya sa akin, may isesend sya na email that I need to reply to within 24-48 hours. Sinabihan nya ako na magpunta ng office namin 10pm para makapag-usap kami.
So nagpunta ako sa office.  Pagdating ko, agad na pinagawa at pinasend yung Explanation ko via email.  Pagka-receive nya ng email, sinabihan nya ako that he will conduct a meeting with the management about the deliberation.  Approximately 3:30am natapos na yung meeting and dun palang kame nakapag-usap ng 1 on 1. He already had the print-outs ready. These printouts were the written notice, the explanation that I sent, and the Notice of Decision.

First, inexplain nya sa kin yung offense and yung sanction which was dismissal. As you have advised me on the previous posts, I tried to emphasize on the 30-day suspension instead of dismissal. Sabi nya, the decision was final. Wala na po ako nagawa at pinirmahan ko nalang yung Notice of Dismissal.


You should have been given 5 days to explain.

Doon pa lang wala nang due process.

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Jaht


Arresto Menor
I am really thankful for your fast response. Thank you for helping me with your advise.
Nasa Pampanga po ako at yung office namin ay nasa Makati. ano po yung first step ko para mag file ng illegal dismissal?

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council


Reclusion Perpetua
Jaht wrote:I am really thankful for your fast response. Thank you for helping me with your advise.
Nasa Pampanga po ako at yung office namin ay nasa Makati.  ano po yung first step ko para mag file ng illegal dismissal?

Get all your documents in order and file your complaint with the nearest DOLE office, wherever it is convenient for you.

Show proof that you were given a notice, asked to explain and were given a decision all in one day.

And that violated your right to due process as outlined sa King of Kings vs Mamac case.

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Jaht


Arresto Menor
Mr council, meron po pala ako idaidagdag.
Bago po pala matapos yung conversation namin ng boss ko, tinanong ko sya. "Boss, bakit ngayung araw din po na to yung effective date ng termination ko?" He answered that the offense was serious. Nakapag-explain naman din daw po ako at nagkaroon naman daw ng hearing.

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council


Reclusion Perpetua
Jaht wrote:Mr council, meron po pala ako idaidagdag.
Bago po pala matapos yung conversation namin ng boss ko, tinanong ko sya. "Boss, bakit ngayung araw din po na to yung effective date ng termination ko?" He answered that the offense was serious. Nakapag-explain naman din daw po ako at nagkaroon naman daw ng hearing.

Hindi ka binigyan ng tamang panahon para magpaliwanag. Halatang minadali ang kaso mo at meron nang decision even before it came out.

You can win an illegal dismissal case in that scenario - pero kung tamang process ang sinunod, wala kang laban sa ganyan and it would be their right to terminate you for those violations.

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Jaht


Arresto Menor
Napag-usapan din po pala namin yung mga monetary claims ko: Last pay and a fraction of my 13th month.  Tinanong ko din sya "How about my 7 unused VLs and 4 SLs?"  Sabi nya he will try to talk to the other manager that handles that but to give me heads up, only 5 leaves can be credited based on our leave policy.  Kung na-compute na daw ito, sa February 29 ay pwede ko na i-surrender yung mga company equipment and sign my clearance. Then my check will be given.

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council


Reclusion Perpetua
Jaht wrote:Napag-usapan din po pala namin yung mga monetary claims ko: Last pay and a fraction of my 13th month.  Tinanong ko din sya "How about my 7 unused VLs and 4 SLs?"  Sabi nya he will try to talk to the other manager that handles that but to give me heads up, only 5 leaves can be credited based on our leave policy.  Kung na-compute na daw ito, sa February 29 ay pwede ko na i-surrender yung mga company equipment and sign my clearance. Then my check will be given.

Yun lang. Malaking problema yan.

Kasi walang February 29 ngayong taon.

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Jaht


Arresto Menor
council wrote:
Yun lang. Malaking problema yan.
Kasi walang February 29 ngayong taon.
naku anlaki nga! ahaha
Council, sorry ako yung nagkamali. last day of the month po yun. Sabay po sa usual na sweldo namin. Once a month lang po kase sahod namin.

Follow up question po council, hindi kaya maudlot yung hinihintay ko na last pay kung agad ako mag-file ng illegal dismissal? Maaari po ba na hintayin ko muna yung check? yun din po kase gagamitin ko panggastos sa pag-asikaso nung Illegal Dismissal case.

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council


Reclusion Perpetua
Jaht wrote:
council wrote:
Yun lang. Malaking problema yan.
Kasi walang February 29 ngayong taon.
naku anlaki nga! ahaha
Council, sorry ako yung nagkamali. last day of the month po yun. Sabay po sa usual na sweldo namin. Once a month lang po kase sahod namin.

Follow up question po council, hindi kaya maudlot yung hinihintay ko na last pay kung agad ako mag-file ng illegal dismissal? Maaari po ba na hintayin ko muna yung check? yun din po kase gagamitin ko panggastos sa pag-asikaso nung Illegal Dismissal case.

Wala naman bayad sa iyo yang pag file ng kaso except sa abala at pamasahe. di mo kailangan ng abugado basta alam mo ang karapatan mo.

Minsan matagal ang proseso dahil pwedeng umabot sa korte.

Kung gusto mo madali, file mo agad a few days before you get your check. then doon sa conciliation/hearing ninyo doon mo hingi ang demands mo, which is most likely to be nominal damages of up to 30k.

Point is, sa case na umabot ng almost 8 years, nakakuha pa ang employee ng damages dahil mali ang pagka-terminate.

Baka ayaw naman patagalin ng company and lawyer ang ganun katagal kasi lugi sila sa oras at bayad sa abugado. So baka makipag-settle na lang sila.

So ikaw na bahala dumiskarte kung magkano ang "tulong" na pwede nilang ibigay sa iyo in addition to the final pay mo.

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Jaht


Arresto Menor
Iniisip ko lang po kase ay baka mapa-byahe ako madalas back and forth Pampanga - Makati. Gusto ko lang na maging ready ang budget para walang reason na maudlot yung pag-file ng kaso.  Maraming salamat po! Napakalaking tulong niyo sa aming mga empleyado.  
I will continue to post on this thread to give updates kung ano na po nangyayari.
More Power! God Bless!

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council


Reclusion Perpetua
Jaht wrote:Iniisip ko lang po kase ay baka mapa-byahe ako madalas back and forth Pampanga - Makati. Gusto ko lang na maging ready ang budget para walang reason na maudlot yung pag-file ng kaso.  Maraming salamat po! Napakalaking tulong niyo sa aming mga empleyado.  
I will continue to post on this thread to give update kung ano na po nangyayari.
More Power! God Bless!

File mo kaso sa pampanga para sila ang maghirap byahe.

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Jaht


Arresto Menor
Council, update lang kita about dito.
Nakuha ko na last paycheck ko, pinapirma nila ako ng Quit Claim. di ba hindi na ako pwede mag-file ng kaso nyan?

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