May an employee who was arrested fro illegal possession of firearms be dismissed? On what ground?

            Article 282 of the Labor Code states that an employer may terminate an employee for these causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

(e) Other causes analogous to the foregoing.

            When an employee is arrested for the commission of a crime, the employee is prevented from reporting for work by reason of the detention. If his detention turns out to be without basis, as the criminal charge upon which said detention was ordered was later dismissed for lack of evidence, the absences incurred by the employee as a consequence thereof is not only involuntary but also excusable.  It is certainly not the employee’s intention to absent, nor is the detention on an erroneous charge be considered the employee’s fault.  In no way may the absences he incurred under such circumstances be likened to abandonment.  If dismissed on such ground, the dismissal would be illegal.  However, if the employee is convicted and the charge is proven to have basis, the employee may be dismissed for abandonment or neglect of duty.

            The Supreme Court, in Asian Terminals, Inc., et al.  vs. NLRC[1], held that absences incurred by an employee who is prevented from reporting for work due to his detention to answer some criminal charge is excusable if his detention is baseless, in that the criminal charge against him is not at all supported by sufficient evidence. In Magtoto vs. NLRC[2] as well as Pedroso vs. Castro[3], the High Court declared such absences as not constitutive of abandonment, and held the dismissal of the employee-detainee invalid.

            The commission of a crime or offense by the employee as a ground for termination of employment refers to an offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative.  The conviction of an employee in a criminal case is not necessary to warrant dismissal by the employer.  In this case, the employee CANNOT be dismissed on this ground. Neither can this be treated as an analogous cause given that the element of relation to his work or to his employer is absent. 

            Foregoing premises considered, the fact of being arrested for illegal possession of firearms CANNOT be a ground for dismissal of the employee. However, there may be circumstances peculiar to each case which could cause the situation to properly fall into one of the just causes for termination by the employer particularly in other causes analogous to the specified causes in Article 282 of the Labor Code.