Thursday, December 8, 2016

Labor case - sample reply position paper

This is a sample "reply position paper" filed in a labor case. It was prepared by our law office. We are sharing it for legal research purposes of our readers.



Xxx xxx xxx,
                                                                                                NLRC RAB NCR
-         Versus -                                                               CASE NO. NCR-
Xxx xxx; AND
Xxx xxx,




            The COMPLAINANT, pro se, respectfully states:






1.      It is useful to review and reiterate the ultimate facts, as discussed in the Position Paper of the complainant, proving (a) the CONSTRUCTIVE DISMISSAL of the complainant and (b) the VIOLATION OF HIS CONSTITUTIONAL AND HUMAN RIGHTS TO (i) “SECURITY OF TENURE”, (ii) “PROCEDURAL AND SUBSTANTIVE DUE PROCESS OF LAW”, AND (iii) “COUNSEL”.

2.    To the best of the recollection of the complainant he was imposed the following penalties for TARDINESS as stated  in his Position Paper:

(a)       On March 15, 2014, a WARNING was annotated by the Xxx Manager in the TEAM TRACK[1] (called by the respondents as the “STAFF DIARY”) of the complainant.

(b) As per the Notice to Explain, dated 11 April 2014, the complainant was compelled to EXPLAIN his allegedly twelve instances of tardiness for the period March 12, 2013 to February 19, 2014, citing Sec. VI, Article XX (Punctuality and Attendance 15A) of the TEAM MEMBER CODE OF GOOD BEHAVIOR (TMCGB). He submitted his handwritten Explanation.

(c)  On May 7-9, 2014 he was SUSPENDED FOR THREE DAYS.

(d)  On July 13-18, 2014 he was SUSPENDED FOR SIX DAYS. (Some of his tardiness before this particular suspension were caused by the street blockage due to the on-going construction and/or improvement of the road where the Xxx was located. Further, in the early part of 2015 some of his tardiness were caused by the heavy traffic due to the papal visit of Pope Francis).

(e) After fulfilling his six-day suspension, he was late once, i.e., January 15, 2015.

3.    In re: the aforecited three-day suspension of the complainant, he was wrongfully subjected to such three-day suspension even if he was late only once prior to the imposition thereof.

3.1.            In re the aforecited six-day suspension of the complainant, he was wrongfully subjected to such six -day suspension even if he was late only twice prior to the imposition thereof.

4.    To his great and painful surprise of the complainant, on May 8, 2015 at about 2:00 PM to 4:00 PM, he was ABRUPTLY AND VERBALLY DISMISSED FROM EMPLOYMENT by the respondent  Xxx  in the presence of his immediate superior xxx (Xxx Shift Manager) inside the room of Xxx Xxx.

4.1.            Before May 8, 2015, he recalled that he had only three instances of tardiness.
4.2.           He was on duty on May 8, 2015 from 7:00 AM to 3:00 PM.
4.3.           Xxx forcibly sequestered and detained him inside her room that day.
4.4.           Xxx threatened, intimidated, forced and compelled him to IMMEDIATELY RESIGN ON THE SPOT that very moment.
4.5.            Xxx threatened to SUMMARILY TERMINATE him if he would not RESIGN ON THE SPOT.
4.6.           Xxx did not issue to him any prior written notice to explain his side.
4.7.            Xxx did not commence any formal administrative charge against him.
4.8.           Xxx did not hold any administrative hearing.
4.9.           Xxx did not call for a company lawyer to guide her and to advise the complainant.
4.10.       Xxx did not allow him to confer with a lawyer of his own choice.
4.11.         Xxx did not allow him to confer with his wife.[2]
4.12.        Xxx detained him for two frightening hours inside her room and its immediate vicinity.
4.13.        Xxx treated him like a prisoner under her total control.
4.14.        Xxx ignored his plea to give him three days to decide and to consult his wife.
4.15.        Xxx forced and intimated him to write on the spot a handwritten resignation letter. If not, Xxxwould TERMINATE him.
4.16.        Xxx did not allow him to go to his locker to get his mobile phone to call and consult his wife.
4.17.        Xxx did not allow him to go to the toilet.
4.18.       Xxx did not give him a copy of any document showing his allegedly serious violation that merited a compulsory resignation.
4.19.        Xxx did not give him a copy of an official management decision, if any, terminating his employment.
4.20.      Xxx allowed him to go home after two horrible and traumatic hours of forcible sequestration and detention inside her room.
5.     The question that the respondents raise is: Why did it take the complainant one year and five months to commence a labor case? The answers of the complainant are as follows:

(a)  The wife of the complainant is an employee of the respondent corporation. He wanted to avoid any unnecessary controversy that might affect the security of tenure and peace of mind of his wife.

(b)  He wanted to avoid a prolonged litigation because he was jobless and he could not afford to support a long, tedious, expensive and painful litigation.

(c)   He relied on the deceptive advice of Xxx that it would be in his best interest if he would resign on the spot to maintain his clean record as a worker when he applies for work in other companies. He objected to the idea. But the threat of termination from work being dangled Xxx and the fear that developed in the heart of the complainant overwhelmed and tortured his mind.

(d)  He was misled by Xxx to believe that he was really guilty of massive and serious tardiness that merited his immediate dismissal without due process of law and that he had no valid legal defenses.

(e)  He is not a lawyer. He has no working legal knowledge of labor law, the rules of evidence, and the rules of procedure for civil and labor litigations. He could not afford a private lawyer to guide him at that time.

(f)    He was interviewed for work sometime in August 2016 by an officer of Xxx(a new xxx company). The pay was much lower (P45, 000.00/month – one half less than his former salary). Xxx deferred approval on his application. The respondent corporation refused to issue his certificate of employment which was required by xxx. The reason of the respondent corporation was that I still owed it more than P35, 000.00 -- which was a baseless claim.

6.    We now refer to the annexes to the Position Paper of the respondents.

6.1.            Annex “1” of the Position Paper of the respondents is the Letter, dated January 28, 2014, of the COO and President of the respondent corporation, xxx addressed to the complainant.

6.1.0.                 XXX granted the complainant a special two months bonus.
6.1.1.                   XXX formally recognized the complainant’s “VALUABLE SERVICE AND CONTRIBUTION TO THE BUSINESS”.
6.1.2.                  XXX thanked the complainant for his “VALUABLE CONTRIBUTIONS”.

6.2.           Annex “2” is the document required by the respondent company to be signed by the complainant containing the conditions for the release of the two months bonus to him.

6.2.0.                It states that (a) if the complainant “leaves” the company (i.e., resigns) “before the last payment schedule” or (b) if his employment is “terminated” (i.e., dismissed) for “just cause” at “any time”, he shall return the bonus he had received.

6.2.1.                  If employment is “terminated” whether “voluntarily” (i.e., resignation) or “involuntarily” (i.e., dismissed for just cause)  “within one year after any pay-out date”, the complainant must pay the amount of the bonus he had received on the “immediately preceding pay-out date” either by “deduct(ion) from (his) final pay” or by paying the same out of his personal funds, otherwise, the respondent company has the right to file a “legal action against him “for the collection of the said amount” (i.e., civil case for sum of money or collection suit).   

6.2.2.                 Please note that the complainant did not “leave” the company.           He did not resign.          He was detained, intimidated and forced by Xxx to resign.          He was a helpless victim of forcible and illegal summary constructive dismissal without due process of law and without just cause.

6.2.3.                 The foregoing conditions do not apply to him. The amount of the bonus he received on the last pay-out date (i.e., February 15, 2015 equivalent to one month pay).

6.2.4.              He is entitled to backwages and other employee benefits, bonuses and incentives for his illegal dismissal.

6.2.5.                 He is the creditor of the respondent company.

6.2.6.                 The respondent company is his debtor.

6.2.7.                 The respondent company owns him huge sums of money based on his backwages and other employee benefits, including the bonuses and other incentives, counted from the date of his illegal dismissal on May 8, 2015.

6.3.           Annex “3” is the “Staff Diary” of the complainant.

6.3.0.                Among the employees of the respondent company “STAFF DIARY” is called “TEAM TRACK”. 

6.3.1.                  See Footnote No. 1, supra, which describes the “Staff Diary System” or the “Team Track System” as being similar to an unfair, abusive, secretive, one-way, and Nazi-type military intelligence system.

6.3.2.                 The comments of the complainant on the said “Staff Diary” (i.e., “Team Trak”) – marked as Annex “3” of the Position Paper of the respondents   -- are discussed below. Because the Staff Diary is very long and because many, if not most, of it are IRRELEVANT AND IMMATERIAL to the issue of the ILLEGAL CONSTRUCTIVE DISMISSAL (FORCED RESIGNATION) of the complainant, his comments thereon will focus only on selected major issues encoded in the Staff Diary by the concerned Xxx Manager/s.           The “no call, no show” violation on May 26, 2015 (Page 1, Staff Diary) was illogical because on May 8 2915 or eighteen days before that date the complainant had already been forced to resign (constructive dismissal).          The “no swipe out” violation on May 8, 2015 (Page 1, Staff Diary) could be explained by the fact that on that very date the complainant had already been forcibly sequestered and detained by Xxx inside her room and within the premises of her department for two long, horrible and traumatic hours.          The alleged act of the complainant on January 22, 2015 (Page 1, Staff Diary) of “ignoring” his dealer (anonymous [not named] in the Staff Diary) who had allegedly reported to him the latter’s discovery of three pieces of one hundred-peso bills, which was suspected by the dealer to be fake, is hereby denied by the complainant. He did not ignore his dealer. He instructed his dealer to change the three pieces of P100.00 bills. Two pieces thereof were genuine. The third one was fake. The complainant informed the Xxx Manager about the matter. The patron gave another bill worth P100.00    replacement to replace the third one that was fake. The patron was apprehended based on my report. The xxx suffered no loss. No administrative charge was filed against the complainant for his allege violation. Neither was he commended by the xxx for his beneficial act.          In re: the alleged “excessive sick leave” of the complainant encoded on November 8, 2014, (Page 1, Staff Diary) all his sick leaves were duly authorized by the company doctor, the department head, and the scheduling department. They were included within his twenty five days of sick leave benefit per annum. There were instances that even if he had wanted to report for work, it was not possible because, as per examination by the company doctor, he was not yet physically fit to do so. He was merely counseled and issued a written warning. No formal administrative charge was filed against him.           In re: the entry, dated April 19, 2014, (Page 4, Staff Diary) for alleged “security awareness violation” of the complainant, on that day he was anchoring the tables in another VIP room in the xxx. His Xxx Manager asked him to help in Xxx No. 21 because it lacked manpower. He informed the manager of Xxx No. 21 that his xxx Dollar Account was disabled. The manager said she would call the IT Department to unlock his account. Meanwhile, he needed to anchor the table right away because of the “big action game”. The average game speed in a VIP room was twenty seconds per game. The average bet was HK$300,000.00 per game.

The game was halfway when he arrived at Xxx No. 21. He had no choice but to use the account of another supervisor who was currently logged on in the table view monitor. In such a fast-speed scene, it was difficult to track the “win/loss” of a particular player. He just estimated the “win/loss result” to have a
basis in informing the Xxx Manager. To him, what was crucial at that time was to insure that his dealer was doing the “proper dealing procedures and payout”. Otherwise, the company would lose money.

The CCTV surveillance personnel concerned failed to assist by not disclosing to the proper officer the “actual win/loss status” of the player/patron as seen in the CCTV camera of the surveillance personnel. All surveillance personnel must assist the dealers, xxx supervisors, xxx managers, and dealers. The complainant did not commit any violation. He was not the one who closed the player’s rating. He had to follow the player to the other table to insure that the dealer in that table would not commit dealing mistakes. The entry on April 19, 2014 made by the encoding Xxx Manager in effect belittled and insulted the supervisory skills of the complainant.

During the time that the complainant anchored the tables in Xxx No. 21, the company did not lose a single centavo. Yet he was not commended for his work. No formal administrative charge was filed against him. No warning or suspension was issued.                   In re: the entry dated April 19, 2014 (Page 4, Staff Diary) for alleged “unprofessional behavior”, the Xxx Supervisors had been briefed not to use pencils in accomplishing the Table Inventory Sheet/s (TIS). Within a period of sixteen hours around six Xxx Supervisors anchored a table. There were numerous “chip movements” (chip in/out, chip fills, and credits). When it came to the time of the complainant to anchor the table during night shift, the TIS was already very messy and unreadable. Unfortunately, he was the last supervisor to anchor the table before it was closed.

After three days, the Xxx Manager scolded him. He answered the Xxx Manager: “Yes, I was the supervisor for that table. But the TIS was already messy when I checked in. The messy penmanship was not mine.           In re: the entry, dated May 13, 2014, (Page 4, Staff Diary) for alleged “abandonment of post”, on that day the complainant worked from 1500H to 2300H. He was helping a supervisor at that time. The Xxx Manager told me there was nobody who could temporarily replace him in his xxx so that he could go for a break. As per procedures, he had to stay and watch (supervise) for one hour and twenty minutes to two hours in the xxx before going for a break. At about 2230H (thirty minutes before his checkout time) he had already spent two and one-half hours in the xxx. He informed his fellow supervisor that he would go for a break which was long overdue. He went for a break for fifteen minutes. He went back to his xxx at 2245H. He was preparing to endorse his table to the incoming supervisor.

The entry for alleged abandonment of post is unjust, unfair, baseless and untruthful. He immediately returned to his post after a fifteen-minute break. The entry itself shows that the Xxx Manager saw him come back to his post after the break. As a professional Xxx Supervisor, the complainant does not intentionally and wrongfully abandon his post. No formal administrative charge was filed against him. Neither was he sanctioned.          In re: the entries, dated May 10, 2013, May 11, 2013, and May 15, 2013 (Page 6 of the Staff Diary), for allege “failure to notice that a dealer had forgotten to collect a losing bet”, a Chinese patron distracted the complainant and the dealer by making a scene because he was losing. During the commotion he surreptitiously retracted his losing bet. The patron placed his bets far away from each other. The bets consisted of two pieces of P100, 000.00 chips. When he saw his cards would lose, he threw one of his two cards to the dealer. He threw the second card to the floor.

The standard operating procedure was that when a card fell on the floor, the Xxx Manager must pick it up. The supervisor (complainant) must focus on the xxx table to prevent irregularities. For reasons known only to the Xxx Manager, he told the complainant to pick up the card on the floor. Thus, his attention was diverted. The patron took advantage of the situation. He retracted one of his losing bets. (one piece of P100, 000.00 chip) that was nearest to him. After the complainant picked up the card, it was scanned and placed on the table layout for the surveillance camera to see, as per standard procedure. The complainant and the dealer noticed the latter collected only one piece of P100, 000.00 chip. The other piece of chip was missing. The complainant confronted the patron. He denied that he took the missing P100, 000.00 chip. The complainant immediately reported the incident to the Xxx Manager to confirm the incident with the CCTV surveillance personnel. The surveillance personnel confirmed that the patron had indeed quickly retracted his losing chip while the complainant and the dealer were being distracted by the cards that the patron threw.

As per standard procedure, the Xxx Manager must collect from the patron the P100, 000.00 chip before he was allowed to start a new game. The Xxx Manager did not do it. Instead he compromised with the patron. The patron promised him that if he won he would return the P100, 000.00. His started with a caxxxal of P2, 000,000.00. When he was down to his last P500, 000.00, he repeated his promise to the Xxx Manager to return the P100, 000.00 if he won. Unfortunately, he lost all his money. The Xxx Manager tried for the last time to retrieve the P100, 000.00 from the patron. The patron answered that he had no more money so he could not anymore return the P100, 000.00.

The company lost P100, 000.00. The complainant was not negligent. The dealer was not negligent. The failure of the Xxx Manager to follow the standard procedures led to the loss of the company.                In re: the entries, dated November 8, 2014 and October 16, 2014 (Page 1 of the Staff Diary), August 11, 2014, August 7, 2014 (Page 2, Id.), July 26, 2014 (Id.), for alleged “no card on, card off, card slip” violations, management implemented a new card system. Formerly, it was the duty of the Xxx Manager “to on/off the cards”. Later, the duty was transferred to the Xxx Supervisors (like the complainant).

The workload of a supervisor is heavy and exhausting. He watches over a maximum of six tables in the main xxx area. There was an average of ten card carriers per table. For an eight-hour shift, a supervisor watches over sixty card carriers. The other tasks of a supervisor are the monitoring of the games, “chip fills” and “credits”, “ratings and buy-ins” on the tables. Many supervisors has received warnings. The rules of the new “card tracking system” were very strict and demanding. Note that a supervisors had to do other duties outside of the tasks mentioned above.

There was no proof showing that the complainant had indeed forgotten to “on/off in the system”. The Staff Diary fails to produce and show the “card carrier slips” to prove the alleged violation. It can be interpreted to mean that if the card carrier slips were produced, there was a good possibility that they would prove the innocence of the complainant.

This is the first time that the complainant learned that he had been issued several warnings because of this kind of violation (failure to on/off the cards in the system). They were minor and harmless incidents.

Note that the test-run of the new card tracking system was stopped by management after a few months. Management noticed that the new system ate up a big part of the time of the supervisors. It diverted them from their more important tasks.

Note also that no card carriers and funds were lost during the testing period.

Note further the following minor warnings to the complainant:

(a)              July 7, 2014 – one entry.
(b)              July 26, 2014 – three entries (procedural warning).
(c)               August 7, 2014 – three entries (verbal warning).
(d)              August 11, 2014 – written warning.
(e)              October 16, 2014 – two entries (final warning).

No formal administrative charge/s was/were filed against the complainant. The only sanction/s was/were minor warnings (“procedural”, “verbal”, “written”, and “final”).       Note that a SILVER COMMENDATION was given to the complainant on August 1, 2014 for working during the Chinese New Year on February 3, 2014. (Page 3, Id.).

6.4.           Annex “4” of the Position Paper of the respondents is a Notice to Explain, dated 7 May 2015 (one day before he was forced to resign by Xxx). The alleged violation is stated in the notice was “gross and habitual neglect”[3]. The comments of the complainant thereon are discussed below.

6.4.0.                The very face of the document shows that the receipt/acknowledgment part thereof does not bear the signature of the complainant and the date and time he allegedly received it.           He did not receive it.          It was not officially served on him.          He had no official notice and knowledge thereof.          He has no officially copy thereof.          Such being the case, his constitutional right to “due process of law” was intentionally violated by the respondents.

6.4.1.                  The offense of gross and habitual neglect is punishable by Dismissal.            It is imposed only if the employee has been earlier punished by three suspensions in one year.  

6.4.2.                 Annex “4” of the Position Paper of the respondents does not show how many suspensions per annum has been imposed on the complainant since he was hired on January 7, 2013 that would warrant his dismissal as per Article XX of the TMCGB. See Footnote No. 3, infra.

6.4.3.                 It does not show the procedural and substantive due process that was conducted, if any:

(a) Notice of violation and to explain,

(b) Administrative hearings [procedural and substantive due process of law, right to counsel, right to be informed of the formal administrative charge/s, right to confront the adverse evidence and witnesses, right to be furnished copies of the formal charge and all relevant and material documents], and

(c) Formal notice of the decision of dismissal and proof of service of an official copy thereof on the employee.

6.4.4.                 The acts alleged in the notice are convoluted, compounded, general, overbroad, overarching, vague, confusing, and do not constitute the offense of gross and habitual neglect as defined in Article XX of the TMCGB. See Footnote No. 3, supra.

6.5.            Annex “5” of the respondents' Position Paper is the handwritten resignation letter, dated May 8, 2015, of the complainant.

6.5.0.                 The fact that it was handwritten and that it was not officially encoded in and printer by the office computer show that it was made in a hurry. A professional employee of a huge company, such as the respondent corporation, does not communicate to his superiors and colleagues in the office via unedited and unprofessional looking handwritten letters. That is not how modern and professional business is conducted. The handwritten resignation letter was not even properly proofread and edited as to its grammar, presentation and layout. It was clearly done by the complainant in a hurry, under duress and without the assistance of counsel to suit the intimidating demand of Xxxfor the complainant to resign on the spot on May 8, 2015 after forcibly sequestering and detaining him inside Xxx’s office.  

6.6.           Annex “6” of the respondents’ Position Paper is the Exit Interview Survey, dated May 8, 2015, allegedly signed by the complainant voluntarily and with full knowledge of its legal, economic and personal implications. The truth of the matter is that Xxx told the complainant to undergo an exit interview right that moment. The said officer asked the complainant to sign the “blank exist interview survey form”. The officer/HR Business Partner named Xxx, who signed the form as the alleged interviewer, was not the officer who actually and personally interviewed the complainant. The actual interviewer were either “Xxx” or “Xxx” (the complainant do not know their official full names). He asked the complainant to sign a blank form. It appears that the blanks were later filled up by either “Xxx” or “Xxx”, not Xxx.  

6.6.0.                The alleged reason given for the resignation was “TO REST AND SPEND TIME WITH THE FAMILY”. Will a responsible husband and father freely and intelligently resign from a good and well-paying job simply “to rest” and “spend time with the family” at the risk of starving his wife and children and endangering the socio-economic and academic future of his family?

6.7.            Annex “7” of the respondents’ Position Paper is the Clearance and Release Form, dated June 8, 2001. The complainant signed it in blank, as told. He did not personally work for its processing and signature by all concerned units. He did not go around all the concerned unit heads to get their signatures thereon. The staff of Xxx apparently did that task.

6.8.           Annex “7-A” of the respondents’ Position Paper is the Computation of Annual Income and Withholding Tax of and for the complainant. It was also attached to the complainant’s Position Paper. It was contested by the complainant in his Position Paper:

6.8.0.                The receivable salaries and other employee benefits of the complainant as of May 8, 2015 (date of illegal termination) were as follows:

·         Salaries for three days  - P9,826.03;
·         Unclaimed leave credits good for 4.5 days - P14,739.05;
·         Service charge - April 2014  - P1,210.32;
·         Service charge - May 2014 - P2,993.13;
·         Refundable income tax - P25, 189.07.

The total of the foregoing items was P53, 357.60.

6.8.1.                 Per company policies, the company DEDUCTED the amount of P88,417.11 from the receivables of the complainant, broken down as follows:

·         Phase 1A bonus - P30,889.11; and
·         Loyalty bonus = P57, 528.00.

6.8.2.                He was told he still had to pay the company the net amount of P35, 059.51. Refer to Annex “B”, Complainant’s Position Paper.

6.8.3.                When the complainant reviewed the figures, it appears that the respondents overcharged the complainant by P7, 809.39 representing taxes on his 13t month pay for 2014 and the first five months of 2015. See Annex “B-1”, Complainant’s Position Paper.  

7.     The following relevant provisions must be stressed the TMCGB (See Annex “P”, Complainant’s Position Paper):

7.1.             Article X of the TMCGB contains the DUE PROCESS PROCEDURE of the respondent company.

7.1.0.                  Step One refers to the Counselling Procedures:

(a)              The supervisor shall personally inform the employee of the deviation.
(b)              A productive counselling and discussion shall be held.
(c)               Agreements shall be documented in a “behavior contract” (Team Member Improvement Plan [TMIP]).
(d)              The employee shall submit a TMIP (a commitment to improve).

(e)              The TMIP shall be signed by the supervisor and the employee.
(f)                The supervisor shall assist the employee to improve within a 30-day period.
(g)              Counselling shall be done.
(h)             The supervisor shall note the proceedings in his logbook.

It is assumed that the TMIP and other related documents shall form part of the 201 File of the employee.

7.1.1.                   Step Two refers to the procedures for Written Explanation:

(a)              The supervisor requires the employee to submit a written explanation within forty eight hours from the occurrence of the deviation.
(b)              A “show-cause memo” will be issued.
(c)               There shall be a “fair hearing”.
(d)              Failure to submit a written explanation is deemed a waiver of one’s right to be heard.

It is presumed that the foregoing proceedings are documented in the 201 File of the employee.

7.1.2.                  Step Three refers to the procedures for FACT-FINDING BY IMMEDIATE SUPERVISOR.

(a)              The employee files the written explanation.
(b)              The supervisor gathers the facts “with HRD assistance”.
(c)               He makes the recommendations (presumably to the HR Dept. and to the employee).
(d)              The employee is given an “AMPLE OPPORTUNITY TO BE HEARD” during the fact-finding exercise by the supervisor.
(e)              There shall be an ADMINISTRATIVE HEARING where the imposable penalty is DISMISSAL.
(f)                The supervisor may do the fact-finding with the representative of the employee. (It presupposes the employee must be notified of such a right).
(g)              The supervisor then submits his recommendations to his next-level superior. He uses the “Notice of Corrective Action” for the purpose.
(h)             The next-level superior reviews the recommendation. He will forward his findings to the HR Business Partner (i.e., respondent Xxx Xxx).
(i)                The “HRA” (HR Business Partner) evaluates the findings/recommendations.
(j)                She endorses the same to the Department Head of the employee.
(k)              The Department Head decides within twenty four hours from receipt of the findings/recommendations.
(l)              The MINUTES OF THE MEETINGS shall be duly signed and made available to all concerned (presumably, including the employee) within twenty four hours.

It is presumed that the foregoing proceedings are documented in the 201 File of the employee.

7.1.3.               Step Four refers to APPEAL PROCEDURE.

(a)              Within 15 days from receipt of the Decision of the Department Head (not the respondent HR Business Partner, Xxx Xxx) the employee may submit an APPEAL to the TEAM MEMBER BEHAVIOR ACTION REVIEW PANEL (again, not the HR Business Partner, respondent Xxx Xxx).
(b)              The said Panel is convened by the MANAGEMENT (HR Business Partner, respondent Xxx Xxx).

It is presumed that the foregoing proceedings are documented in the 201 File of the employee.

7.1.4.                  Step Five refers to the TEAM MEMBER BEHAVIOR ACTION REVIEW PANEL.

(a)              The Department Head recommends the referral of the issue to the TEAM MEMBER BEHAVIOR ACTION REVIEW PANEL.
(b)              The referral is addressed to the HR Business Partner (respondent Xxx Xxx).
(c)               The HR Business Partner convenes the Panel.
(d)            The Panel shall be composed of the HR Business Partner as the presiding officer, the Division Head as the deputy presiding officer, the Security Director, one Neutral Manager, and the Vice President for Human Resource and Administration (HRA).
(e)              The Panel shall be “duly constituted” in writing.
(f)              It shall conduct a “thorough fact-finding”.
(g)              It shall submit its recommendations within five working days from date of constitution.
(h)              The legal/constitutional rights of the employee shall be respected during this whole process.
(i)                If the penalty imposed on an employee with a rank lower than Director position is DISMISSAL, it is subject to JOINT AUTOMATIC REVIEW by the Vice President for HRA and the Chief Operating Officer (COO).
(j)                The Panel decides by consensus.
(k)            The dissenting opinions within the Panel shall be in writing.

It is presumed that the foregoing proceedings are documented in the 201 File of the employee.

A written NOTICE OF CORRECTIVE ACTION shall be served on the employee.
7.1.5.                   Article XIV refers to the DOCUMENTATION of the disciplinary process. Complete reports are required. This means the 201 File of the employee must be furnished copies of all relevant documents.

7.1.6.                  ARTICLE XX refers to the TABLE OF OFFENSES AND PENALTIES.             Per Rule 15 (Tardiness, Undertime, Overtime and Breaks)  of Part VI (PUNCTUALITY AND ATTENDANCE) of Article XX of the TMCGB (Page 64) the penalties are as follows:

(a)              Reporting for work late for three times corresponds to one violation.
(b)              The “reckoning is PER CALENDAR BASIS”.
(c)               For the first violation (three incidents of tardiness in one calendar year) the penalty is CORRECTIVE COUNSELLING.
(d)              For the second violation (six incidents of tardiness in one calendar year) the penalty is WARNING.
(e)              For the third violation (nine incidents of tardiness in one calendar year) the penalty is three days suspension.
(f)                For the fourth violation (twelve incidents of tardiness in one calendar year) the penalty is six days suspension.
(g)              For the fifth violation (fifteen incidents of tardiness in one calendar year) the penalty is twelve days of suspension.
(h)             For the sixth violation (eighteen incidents of tardiness in one calendar year) the penalty is thirty days suspension.
(i)                For the seventh violation (twenty one incidents of tardiness in one calendar year) the penalty is DISMISSAL.


8.    The case of FERNANDO GO, petitioner, vs. COURT OF APPEALS and MOLDEX PRODUCTS, INC., respondents. G.R. No. 158922, May 28, 2004, cited by the respondents in their Position Paper is not on all fours with this case.

8.1.            The aforecited case involved the alleged “stripping” of the functions of the complaining sales manager. It did not involve the outright intimidation of a worker to issue under duress a hand written resignation letter upon detention by the human resource officer inside her office as in the case of the herein complainant.
8.2.           In the aforecited case the sales manager fully exercised the prerogatives and the responsibilities of his office during the time that the said functions were supposedly removed from him. Therefore, there was no constructive dismissal to speak of.
8.3.           In the aforecited case the sales manager freely actively sought to be cleared by the company and he was paid the monies due him.

9.    In the case pf MENDOZA vs. HMS CREDIT CORPORATION, et. al., G.R. No. 187232, April 17, 2013, cited by the respondents, the Supreme Court actually held, among other things:

9.1.            In the case of termination by the employer, it is not enough that there exists a just cause therefor, as procedural due process dictates compliance with the two-notice rule in effecting a dismissal: (a) the employer must inform the employee of the specific acts or omissions for which the dismissal is sought, and (b) the employer must inform the employee of the decision to terminate employment after affording the latter the opportunity to be heard.

9.2.           Resignation — the formal pronouncement or relinquishment of a position or office — is the voluntary act of an employee.

9.3.           In illegal dismissal cases, fundamental is the rule that when an employer interposes the defense of resignation, on him necessarily rests the burden to prove that the employee indeed voluntarily resigned.

9.4.           Respondents were unable to discharge their burden to prove the contemporaneous existence of an intention on the part of the complaining worker (chief accountant of the company) to resign and an overt act of resignation.

9.5.            Aside from their self-serving allegation that she had offered to resign after they had expressed their loss of trust in her, there is nothing in the records to show that she voluntarily resigned from her position in their company.

9.6.           In this regard, it is worthy to underscore the established rule that the filing of a complaint for illegal dismissal is inconsistent with resignation or abandonment.

10.                        In the case of INTERTROD MARITIME, INC., et. al. vs. NATIONAL LABOR RELATIONS COMMISSION, et. al., G.R. No. 81087, June 19, 1991, cited by the respondents, the issue was whether a worker who had resigned could unilaterally withdraw his resignation. That is not the issue in the instant case. In the aforecited case the Supreme Court held that resignations, once accepted and being the sole act of the employee, may not be withdrawn without the consent of the employer.

11.  In the case of PHILIPPINES TODAY, INC., et. al. vs. NATIONAL LABOR RELATIONS COMMISSION, et. al., G.R. No. 112965, January 30, 1997, cited by the respondents, the pivotal issue was whether the “Memorandum for File” constitute voluntary resignation. The Supreme Court held that it constituted voluntary resignation. It held that resignation is a voluntary act of the employee.  For instance, when an employee is told by the employer that he would not be granted a loan unless he resigns, his resignation is not voluntary.

12.The case of ROLANDO L. CERVANTES vs. PAL MARITIME CORPORATION, et. al., G.R. No. 175209, January 16, 2013, cited by the respondents, actually held that resignation is the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, such that he has no other choice but to disassociate himself from his employment.

13. The case of DIANA E. BELAUNZARAN vs. NATIONAL LABOR RELATIONS COMMISSION, et. al., G.R. No. 120038, December 23, 1996, cited by the respondents, actually held:

(a)              If the reinstatement of petitioner is no longer feasible due to a deep antagonism between the parties, a worker may be awarded separation pay equivalent to one (1) month pay for every year of service plus thirteenth (13th) month pay.

(b)              Backwages are granted on grounds of equity for earnings which a worker has lost due to illegal dismissal.

(c)               Moral damages are recoverable where the dismissal of the employee was attended by bad faith or constituted an act oppressive to labor or was done in a manner contrary to morals, good customs or public policy.

(d)              Exemplary damages may be awarded if the dismissal was effected in a wanton, oppressive or malevolent manner.

14. The case of PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION (PSBA)-MANILA vs. NATIONAL LABOR RELATIONS COMMISSION, et.  al., G.R. No. 114143, August 28, 1996, cited by the respondents, actually held that a regular employee has the right to security of tenure, i.e., to be removed from employment only for just and authorized causes.

14.1.         It also held that to justify the award of moral damages the of dismissal must be attended with bad faith, or fraud or was oppressive to labor or done in a manner contrary to morals, good customs or public policy and, of course, that social humiliation, wounded feelings, or grave anxiety resulted therefrom.

14.2.        As to exemplary damages, the dismissal must be effected in a wanton, oppressive or malevolent manner.

15.  The case of MACARIO R. LOPEZ vs. HON. NLRC COMMISSIONERS LOURDES C. JAVIER, et. al., G.R. No. 102874, January 22, 1996, cited by the respondents, actually held, inter alia,  that while probationary employees do not enjoy permanent status, they are, nonetheless, accorded the constitutional protection of security of tenure. Article XIII, Section 3 of the Constitution provides that the State "shall guarantee the rights of all workers to . . . security of tenure . . .". 

15.1.         Probationary employees who are unjustly dismissed from work during the probationary period shall be entitled to reinstatement and payment of full backwages and other benefits and privileges from the time they were dismissed up to their actual reinstatement, conformably with Article 279 of the Labor Code, as amended by Section 34 of Republic Act No. 6715, which took effect on March 21, 1989.

16. In the case of DUTCH BOY PHILIPPINES, INC. vs. RONALD SENIEL, et. al., G.R. No. 170008, January 19, 2009, cited by the respondents, it was actually held that good faith is always presumed, and it is the burden of the party claiming otherwise to adduce clear and convincing evidence to the contrary. In the instant case, however, the herein complainant has satisfactorily shown the intimidation, duress, threat, and abusive behavior of Xxx who forced him to issue a handwritten resignation letter on the spot while being sequestered and detained  for two horrible hours inside the office premises of Xxx. The “burden of evidence” has thus shifted to Xxx to destroy the prima facie evidence of bad faith introduced by the herein complainant.

17.  In the case of G.J.T. REBUILDERS MACHINE SHOP, et. al. vs. RICARDO AMBOS, et. al., G.R. No. 174184, January 28, 2015, cited by the respondents, the actual issue was “whether petitioners sufficiently proved that G.J.T. Rebuilders suffered from serious business losses”.  It is irrelevant to the instant case. In the aforecited case, it was held that although it is the management’s prerogative to close their business, it must pay the affected workers separation pay equivalent to one-month pay or to at least one-half-month pay for every year of service, whichever is higher. The only time employers are not compelled to pay separation pay is when they closed their establishments or undertaking due to serious business losses or financial reverses.

18. In the case of MALAYANG SAMAHAN NG MGA MANGGAGAWA SA M. GREENFIELD (MSMG-UWP), ET. AL. vs. HON. CRESENCIO J. RAMOS, ET. AL.,  G.R. No. 113907, February 28, 2000, cited by the respondents, the issue was “whether or not respondent company was justified in dismissing petitioner employees merely upon the labor federation's demand for the enforcement of the union security clause embodied in their collective bargaining agreement.” This issue is IRRELEVANT to the instant case.

18.1.        The Supreme Court held that while the company, under a maintenance of membership provision of the collective bargaining agreement, is bound to dismiss any employee expelled by the union for disloyalty upon its written request, this undertaking should not be done hastily and summarily. The company acts in bad faith in dismissing a worker without giving him the benefit of a hearing.

18.2.       While respondent company may validly dismiss the employees expelled by the union for disloyalty under the union security clause of the collective bargaining agreement upon the recommendation by the union, this dismissal should not be done hastily and summarily thereby eroding the employees' right to due process, self-organization and security of tenure.

18.3.       Bad faith on the part of the respondent company may be gleaned from the fact that the petitioner workers were dismissed hastily and summarily. At best, it was guilty of a tortious act, for which it must assume solidary liability, since it apparently chose to summarily dismiss the workers at the union's instance secure in the union's contractual undertaking that the union would hold it "free from any liability" arising from such dismissal.

18.4.       An employee who took steps to protest his lay-off cannot be said to have abandoned his work.  The filing of a complaint for illegal dismissal is inconsistent with the allegation of abandonment. In the aforecited case the workers did, in fact, file a complaint when they were refused reinstatement by the company.

18.5.         The general rule is that company officials cannot be held personally liable for damages on account of the employees' dismissal because the employer corporation has a personality separate and distinct from its officers who merely acted as its agents. (However, the herein complainant submits that an exception to the general rule is when bad faith or gross negligence is present).

18.6.        The Court held that, as per the case of Ruben Serrano vs. NLRC and Isetann Department Store (G.R. No. 117040, January 27, 2000), if an employee is illegally dismissed without just or valid cause, the backwages shall be computed from the time of his dismissal until his actual reinstatement.



“In the interest of fair play, the complainant hereby moves for the production, inspection and examination of his 201 File (Personnel File), which is now being withheld by the respondents, so that he can improve his defenses and arguments based on the contents thereof, if any. He intends to discuss the same in his REPLY POSITION PAPER to be filed in a future hearing.”


20.                       As stated in Paragraph 34 of the Position Paper of the complainant, he wishes to revive the compromise negotiation between the parties, without prejudice to the continuation of the proceedings of this case. 

20.1.       The maintenance of an open line of communication between the parties is in their best interest. Amicable settlement is encouraged by law and jurisprudence.
20.2.      It is hoped that the Honorable Labor Arbiter would take continuing steps along this line.
20.3.      The complainant is jobless. He has three children to support, maintain and educate. He wishes to avoid a prolonged and costly litigation.


21.The complainant respectfully submits to this Honorable Office the two receipts showing the legal fees he incurred for the preparation of his Position Paper and Reply Position Paper in the amount of P20,000.00, and ten percent (10%) of recoverable damages, if any, marked as Annex “A”, with sub-marking, hereof.

VI.            CONCLUSION.

22.                     The complainant is guilty merely of the MINOR OFFENSE OF TARDINESS.




23.1.        He started work on January 7, 2013 and was illegally dismissed on May 8, 2015 – or a period of two years and four months. His working hours of fifteen minutes of daily briefings for the said period were all unpaid. If totaled, the total amount thereof is huge.


WHEREFORE, premises considered, it is respectfully prayed that judgment be issued declaring that the complainant has been ILLEGALLY DISMISSED by way of CONSTRUCTIVE DISMISSAL by the respondents and that the complainant is entitled to REINSTATEMENT.
FURTHER, it is respectfully prayed that the respondents be ordered to pay or issue to the complainant, as the case may be:
(a)              BACKWAGES from the date of his illegal dismissal on May 8, 2016 up to the time he is REINSTATED to his former position without loss of seniority and other benefits.
(b)              MORAL DAMAGES of P500, 000.00.
(c)               EXEMPLARY DAMAGES of P500, 000.00.
(d)              His RECEIVABLES representing salaries and other benefits due him in the amount of P61, 166.99 as discussed in Paragraph 13 of his Position Paper.
(e)              Attorney’s fees of Ten Percent of Damages Awarded.
(f)                Unpaid 15-minute daily staff briefings for two and one-half years (January 7, 2013 to May 8, 2015).
(g)              His CERTIFICATE OF EMPLOYMENT (whether or not he is reinstated).

FINALLY, the complainant respectfully pays for such and other reliefs as may be deemed just and equitable in the premises.

XXX City, December 6, 2016.

MR. xxx xxx
Bxxx, Lot xxx, xxxs St.
Xxx Subd.
Xxx, xxx City

            SUBSCRIBED and sworn to before me in Quezon City on December 9, 2016, affiant showing his competent proof of identity as follows: LTO Driver’s License No. xxx expiring on xxx.

                                                                                    Notary Public

Doc. No.
Page No.
Book No.
Series of 2016.

Copy Furnished:

Atty. xxx xxx
Counsel for Respondents
(Via Personal Delivery During
The xxx Hearing)

[1] A TEAM TRACK or a STAFF DIARY is a one-sided and confidential digitized/computerized database where an immediate superior of an employee encodes the alleged violations of an employee. Only the superior has access to the database. He alone encodes the violations. He does not allow the employee to read the encoded information. He may discuss the alleged violation with the employee, at his sole option. He does not provide the employee a hard copy of the encoded information. The system works like a secret military intelligence system. The employee has no security clearance to access it. It appears that the hard copies of the encoded data do not appear in the hard-copy 201 File (Personnel File) of the employee. No internal procedure exists empowering an employee to contest the veracity and fairness of the unilaterally encoded data.

[3] See: Article XX, Part VII (Personal Conduct), Rule 20 (Neglect of Duty) appearing on Page 69 of the Team Member Code of Good Behavior [TMCGB].