I wish to share to
my readers the legal and jurisprudential parts of a recent reply position paper
in a labor case that our law office has prepared under my direct supervision, for
legal research purposes.
REPLY POSITION PAPER
FOR THE COMPLAINANT
THE COMPLAINANT x x x, by counsel, respectfully
states:
1. The two (2) basic issues in this case are whether X
X X was illegally dismissed and whether the respondents should be held jointly
and severally liable for tort and damages.
X x x.
2.
Please note that Article 281 of the Labor Code on probationary
employment (applicable to X x x) provides that “the services of an employee who
has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify
as a regular employee in accordance with reasonable standards made known by the
employer to the employee at the time of his engagement”. It further provides
that “an employee who is allowed to work after a probationary period shall be
considered a regular employee”. In the employment contract of X X X, his
probation actually was 3 months. He had completed his first 3 months it without
any negative action on the part of respondents. He was allowed to proceed to
another renewable (2nd phase) 3 months of probation. At this time,
no formal performance evaluation was conducted. The respondents simply
dismissed him by reason of the above-mentioned two incidents.
3.
Further, it must be
noted Article 282 of the Labor Code
(termination by employer) provides that an “employer may terminate an employment for:
(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 representative; and
(e) Other
causes analogous to the foregoing.”
To repeat: None of the foregoing grounds applies
to X X X. His subject actuations were not harmful, were without malicious
intent to injure, harm, intimidate, or threaten, or to commit sexual harassment
or acts of lasciviousness or, in any manner, to
commit acts of disrespect towards his women colleagues.
4.
At this point, it must be repeated, for
emphasis, that X X X was not afforded
the opportunity: to hire a private lawyer (a basic human right to counsel)
during the rush administrative hearing;
to confront the complainants and witnesses against him by way of cross
examination; to study the documents, records, and evidence against him in the
possession of the respondents; to secure formal minutes and transcripts of the
said hearing (there being none, it now appears); and at the least, the fair
time to prepare for his own defense. His human right to DUE PROCESS OF LAW was
violated. End result: A family man, with good moral character, good education
and work experience, and good name and honor has been rendered jobless,
exposing his helpless wife and young children to hunger, suffering, anxieties,
mental pain, anguish, and public ridicule, all of which deserve the imposition
of MORAL and EXEMPLARY DAMAGES of P500, 000.o0 each and ATTORNEY’S FEES of 10%
of recoverable amounts, plus COSTS OF SUIT and LITIGATION EXPENSES.
5. X
X X reiterates the jurisprudence he had earlier cited in his Position Paper in
support of his arguments, to wit:
5.1.
Marcial
Gu-Miro v. Rolando C. Adorable, et. al., GR No. 160952, 20 August 2004, citing
Asuncion v. NLRC, GR No. 129329, 31 July 2001, 362 SCRA 56, and Dizon v. NLRC,
GR No. 79554, 14 December 1989, 180 SCRA 52).
5.2.
Solidbank
Corporation v. CA, et. al., GR No. 151026, August 25, 2003).
5.3.
Felix
v. NLRC, GR No. 148256, November 17, 2004 citing Pilipinas Bank v. NLRC, 215
SCRA 750, 756 (1992), and Quezon
Electric Cooperative v. NLRC, 172 SCRA 88, 97 (1989)).
5.4.
Philippine
Commercial Industrial Bank v. Cabrera, GR No. 160386, March 31, 2005.
5.5.
Hacienda Bino et al v. Cuenca et al, GR No. 150478, April 15, 2005
5.6.
PLDT vs. NLRC and Enrique
Gabriel; G.R. No. 106947; February 11, 1999.
5.7.
SOLVIC INDUSTRIAL CORP. and ANTONIO C. TAM, petitioners, vs. NATIONAL LABOR
RELATIONS COMMISSION and DIOSDADO LAUZ, respondents.
[G.R. No. 125548. September 25, 1998].
5.8.
Melody
Paulino Lopez V. NLRC, G.R. No.
125548, October 8,1999; Martinez, J.; and
5.9.
CAINGAT vs. NLRC, et al, GR 154308, March 10, 2005
6.
The Civil Code provides when a person may be
held liable for DAMAGES arising from TORT, QUASI DELICT, ABUSE OF RIGHT,
MALICIOUS PROSECUTION, and other unjust, unfair and abusive acts that injure
one’s constitutional and statutory rights as a person, citizen, and worker, to
wit:
Art. 10. In case of doubt
in the interpretation or application of laws, it is presumed that the lawmaking
body intended right and justice to prevail.
Art. 19. Every person must, in
the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who,
contrary to law, willfully or negligently causes damage to another shall
indemnify the latter for the same.
Art. 21. Any person who willfully
causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.
Art. 22. Every person who through
an act of performance by another, or any other means, acquires or comes into
possession of something at the expense of the latter without just or legal
ground, shall return the same to him.
Art. 23. Even when an act or
event causing damage to another's property was not due to the fault or
negligence of the defendant, the latter shall be liable for indemnity if
through the act or event he was benefited.
Art. 24. In all contractual,
property or other relations, when one of the parties is at a disadvantage on
account of his moral dependence, ignorance, indigence, mental weakness, tender
age or other handicap, the courts must be vigilant for his protection.
Art. 32. Any public officer or
employee, or any private individual, who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs any of the following
rights and liberties of another person shall be liable to the latter for
damages:
X x x.
(6) The right against deprivation of
property without due process of law;
X x x.
(8) The right to the equal
protection of the laws;
X x x.
(16) The right of the
accused to be heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy and public trial, to meet
the witnesses face to face, and to have compulsory process to secure the
attendance of witness in his behalf;
(17) Freedom from being
compelled to be a witness against one's self, or from being forced to confess
guilt, or from being induced by a promise of immunity or reward to make such
confession, except when the person confessing becomes a State witness;
X x x.
In any of the cases referred to
in this article, whether or not the defendant's act or omission constitutes a
criminal offense, the aggrieved party has a right to commence an entirely
separate and distinct civil action for damages, and for other relief. Such
civil action shall proceed independently of any criminal prosecution (if the
latter be instituted), and mat be proved by a preponderance of evidence.
The indemnity shall include moral
damages. Exemplary damages may also be adjudicated.
X x x.
Art. 2176. Whoever by act or
omission causes damage to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter. (1902a)
Art. 2177. Responsibility for
fault or negligence under the preceding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code.
But the plaintiff cannot recover damages twice for the same act or omission of
the defendant.
Art. 2178. The provisions of
Articles 1172 to 1174 are also applicable to a quasi-delict. (n)
Art. 2179. When the plaintiff's
own negligence was the immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contributory, the immediate and
proximate cause of the injury being the defendant's lack of due care, the
plaintiff may recover damages, but the courts shall mitigate the damages to be
awarded. (n)
Art. 2180. The obligation imposed
by Article 2176 is demandable not only for one's own acts or omissions, but
also for those of persons for whom one is responsible.
X x x.
The owners and managers of an
establishment or enterprise are likewise responsible for damages caused by
their employees in the service of the branches in which the latter are employed
or on the occasion of their functions.
Employers shall be liable for the
damages caused by their employees and household helpers acting within the scope
of their assigned tasks, even though the former are not engaged in any business
or industry.
X x x.
The responsibility treated in
this article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage.
Art. 2194. The responsibility of
two or more persons who are liable for quasi-delict is solidary.
Art. 2202. In crimes and
quasi-delicts, the defendant shall be liable for all damages which are the
natural and probable consequences of the act or omission complained of. It is
not necessary that such damages have been foreseen or could have reasonably
been foreseen by the defendant.
Art. 2208. In the absence of
stipulation, attorney's fees and expenses of litigation, other than judicial
costs, cannot be recovered, except:
(1) When exemplary damages are
awarded;
(2) When the defendant's act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest;
X x x.
(5) Where the defendant acted in
gross and evident bad faith in refusing to satisfy the plaintiff’s plainly
valid, just and demandable claim;
X x x.
(7) In actions for the recovery
of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity
under workmen's compensation and employer's liability laws;
X x x.
(11) In any other case where the court deems
it just and equitable that attorney's fees and expenses of litigation should be
recovered.
In all cases, the attorney's fees
and expenses of litigation must be reasonable.
Art. 2217. Moral damages include
physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar
injury. Though incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of the defendant's wrongful act for
omission.
Art. 2219. Moral damages may be
recovered in the following and analogous cases:
X x x.
(10) Acts and actions referred to in Articles
21, 26, 27, 28, 29, 30, 32, 34, and 35.
X x x.
Art. 2220. Willful injury to
property may be a legal ground for awarding moral damages if the court should
find that, under the circumstances, such damages are justly due. The same rule
applies to breaches of contract where the defendant acted fraudulently or in
bad faith.
Art. 2229. Exemplary or
corrective damages are imposed, by way of example or correction for the public
good, in addition to the moral, temperate, liquidated or compensatory damages.
Art. 2231. In quasi-delicts,
exemplary damages may be granted if the defendant acted with gross negligence.
Art. 2232. In contracts and
quasi-contracts, the court may award exemplary damages if the defendant acted
in a wanton, fraudulent, reckless, oppressive, or malevolent manner.
Art. 2233. Exemplary damages
cannot be recovered as a matter of right; the court will decide whether or not
they should be adjudicated.
Art. 2234. While the amount of
the exemplary damages need not be proved, the plaintiff must show that he is
entitled to moral, temperate or compensatory damages before the court may
consider the question of whether or not exemplary damages should be awarded. In
case liquidated damages have been agreed upon, although no proof of loss is
necessary in order that such liquidated damages may be recovered, nevertheless,
before the court may consider the question of granting exemplary in addition to
the liquidated damages, the plaintiff must show that he would be entitled to
moral, temperate or compensatory damages were it not for the stipulation for liquidated
damages.
7.
ABUSE OF RIGHT as a legal doctrine was dissected
in the case of NIKKO HOTEL MANILA GARDEN, et al, vs. REYES, GR 154259,
February 28, 2005, where, inter alia, Articles 19 and 21 of
the Civil Code were invoked. Although the hotel was not held liable for
damages, the Court took the case as an
opportunity to make an extensive discussion of the concept of ABUSE OF RIGHT, which
X X X hereby adopts in this case in support of his legal theory, thus:
X x x.
Article 19, known to contain what is commonly referred to as the
principle of abuse of rights,
[59] is not a
panacea for all human hurts and social grievances. Article 19 states:
Art. 19. Every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
Elsewhere, we explained that when “a right is exercised in a manner which
does not conform with the norms enshrined in Article 19 and results in damage
to another, a legal wrong is thereby committed for which the wrongdoer must be
responsible.”
[60] The
object of this article, therefore, is to set certain standards which must be
observed not only in the exercise of one’s rights but also in the performance
of one’s duties.
[61] These
standards are the following: act with justice, give everyone his due and
observe honesty and good faith.
[62]
Its antithesis, necessarily, is any act evincing bad faith or intent to
injure. Its elements are the following: (1) There is a legal right
or duty; (2) which is exercised in bad faith; (3) for the sole intent of
prejudicing or injuring another.
[63]
When Article 19 is violated, an action for damages is proper under Articles 20
or 21 of the Civil Code. Article 20 pertains to damages arising from a
violation of
law [64] which does
not obtain herein as Ms. Lim was perfectly within her right to ask Mr. Reyes to
leave. Article 21, on the other hand, states:
Art. 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall compensate
the latter for the damage.
Article 21
[65] refers to
acts
contra bonus mores and has the following elements: (1) There is an
act which is legal; (2) but which is contrary to morals, good custom, public
order, or public policy; and (3) it is done with
intent to injure.
[66]
A common theme runs through Articles 19 and 21,
[67]
and that is, the act complained of must be intentional.
[68]
X x x.
[47]
E.L. Pineda,
Torts and Damages Annotated, p. 52 (2004 ed).
[48]
Garciano v.
Court of Appeals, G.R. No. 96126, 10 August 1992, 212 SCRA 436, 440.
[49]
cf. Servicewide
Specialists, Inc. v. Intermediate Appellate Court, G.R. No. 74553, 08 June
1989, 174 SCRA 80, 88.
[50]
Sangco, Torts
and Damages Vol.1 , pp. 83-84.
[51]
Floro v.
Llenado, G.R. No. 75723, 02 June 1995, 244 SCRA 713, 720.
[58]
Article 2180, Civil Code.
[59]
Globe-Mackay
Cable and Radio Corp. v. Court of Appeals, G.R. No. 81262, 25 August 1989, 176
SCRA 779, 783.
[60]
Albenson
Enterprises Corp. v. Court of Appeals, G.R. No. 88694, 11 January 1993, 217
SCRA 16, 25.
[64]
Art. 20.
Every person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same. See Globe Mackay, supra,
note 61 at 784.
[72]
Art. 2234,
Civil Code.
8. Respondents
cited the case of MERCURY DRUG CORPORATION vs. NATIONAL LABOR RELATIONS COMMISSION, NLRC SHERIFF and CESAR E.
LADISLA, G.R. No. 75662 September 15, 1989, but it is not applicable
in this case. In the said case, the private respondent Cesar E. Ladisla
was employed by petitioner Mercury Drug Corporation as a Stock Analyst at its
Claro M. Recto Branch. He had been with the company for two years and nine
months. On August 15, 1977 he was “apprehended by representatives of Mercury
Drug while in the act of pilfering company property consisting of three (3)
bottles of Persantin and one (1) bottle of Valoron at 100 tablets per bottle
with a total value of P272.00”. He “admitted his guilt” to the investigating
representatives of petitioner company and “executed a handwritten admission”.
Said “admission was repeated verbally at the police station” before the arresting
officer as shown in the Booking Sheet and Arrest Report which was signed and
authenticated by Ladisla. On August 19, 1977, petitioner, while
simultaneously placing private respondent on “preventive suspension”, filed
before the Department of Labor an application for the termination of private
respondent's employment on grounds of “dishonesty and breach of trust”. All of the foregoing facts do not apply in the present case. X X X was and is not being charged for
DISHONESTY, THEFT, BREACH OF TRUST AND CONFIDENCE and the like. He did not make
any CONFESSION of criminal guilt.
9.
Respondent cited the case of MERALCO VS. NLRC, GR 78763, JULY 12, 1989,
175 SCRA 277. Again this case is not
applicable to X X X. In the said case the facts were as follows: Private
respondent Signo was employed in petitioner company as supervisor-leadman since
January 1963 up to the time when his services were terminated on May 18, 1983. In 1981, a certain Fernando de Lara filed an application with the
petitioner company for electrical services at his residence at Peñafrancia
Subdivision, Marcos Highway, Antipolo, Rizal. Private respondent Signo
facilitated the processing of the said application as well as the required
documentation for said application at the Municipality of Antipolo, Rizal. In
consideration thereof, private respondent received from Fernando de Lara the
amount of P7,000.00. Signo thereafter filed the application for electric
services with the Power Sales Division of the company. It was established that
the area where the residence of de Lara was located is not yet within the
serviceable point of Meralco, because the place was beyond the 30-meter
distance from the nearest existing Meralco facilities. In order to expedite the
electrical connections at de Lara's residence, certain employees of the
company, including respondent Signo, made it appear in the application that the sari-sari store at the corner of Marcos Highway,
an entrance to the subdivision, is applicant de Lara's establishment, which, in
reality is not owned by the latter. As a result of this scheme, the electrical
connections to de Lara's residence were installed and made possible. However,
due to the fault of the Power Sales Division of petitioner company, Fernando de
Lara was not billed for more than a year. Petitioner company conducted an
investigation of the matter and found respondent Signo responsible for the said
irregularities in the installation. Thus, the services of the latter were
terminated on May 18, 1983. On August 10 1983, respondent Signo filed a
complaint for illegal dismissal, unpaid wages, and separation pay.
In fact, MERALCO lost in the abovecited
case. Applying the doctrine of COMPASSIONATE JUSTICE IN LABOR AND SOCIAL
LEGISLATION, the Court ruled in favor of the worker who was unjustly dismissed.
Thus:
X x x.
This Court has held time and again, in a number of decisions, that
notwithstanding the existence of a valid cause for dismissal, such as breach of
trust by an employee, nevertheless, dismissal should not be imposed, as it is
too severe a penalty if the latter has been employed for a considerable length
of time in the service of his employer. (Itogon-Suyoc Mines, Inc. v. NLRC, et
al., G.R. No. L- 54280, September 30,1982,117 SCRA 523; Meracap v.
International Ceramics Manufacturing Co., Inc., et al., G.R. Nos. L-48235-36,
July 30,1979, 92 SCRA 412; Sampang v. Inciong, G.R. No. 50992, June 19,1985,137
SCRA 56; De Leon v. NLRC, G.R. No. L-52056, October 30,1980, 100 SCRA 691;
Philippine Airlines, Inc. v. PALEA, G.R. No. L-24626, June 28, 1974, 57 SCRA
489).
In a similar case, this Court ruled:
As repeatedly been held by this Court, an employer cannot legally be
compelled to continue with the employment of a person who admittedly was guilty
of breach of trust towards his employer and whose continuance in the service of
the latter is patently inimical to its interest. The law in protecting the
rights of the laborers, authorized neither oppression nor self- destruction of
the employer.
However, taking into account private respondent's 'twenty-three (23)
years of service which undisputedly is unblemished by any previous derogatory
record' as found by the respondent Commission itself, and since he has been
under preventive suspension during the pendency of this case, in the absence of
a showing that the continued employment of private respondent would result in
petitioner's oppression or self-destruction, We are of the considered view that
his dismissal is a drastic punishment. ... .
xxx xxx xxx
The ends of social and compassionate justice would therefore be served if
private respondent is reinstated but without backwages in view of petitioner's
obvious good faith. (Itogon- Suyoc Mines, Inc. v. NLRC, et al., 11 7 SCRA 528)
Further, in carrying out and interpreting the Labor Code's provisions and
its implementing regulations, the workingman's welfare should be the primordial
and paramount consideration. This kind of interpretation gives meaning and
substance to the liberal and compassionate spirit of the law as provided for in
Article 4 of the New Labor Code which states that "all doubts in the
implementation and interpretation of the provisions of the Labor Code including
its implementing rules and regulations shall be resolved in favor of
labor" (Abella v. NLRC, G.R. No. 71812, July 30,1987,152 SCRA 140).
In view of the foregoing, reinstatement of respondent Signo is proper in
the instant case, but without the award of backwages, considering the good
faith of the employer in dismissing the respondent.
X x x.
10. Respondents
cited the case of ABBOTT LABORATORIES
(PHILIPPINES), INC., and JAIME C. VICTA vs. NATIONAL LABOR
RELATIONS COMMISISON and ALBERT BOBADILLA, G.R. No. 76959 October 12, 1987. Again the facts of the said case are not
applicable to X X X. It involved the legal issue of UNJUST TRANSFER of a worker
which the latter contested as being tantamount to a DEMOTION. In that case, complainant
Bobadilla started his employment with respondent company sometime in May 1982.
After undergoing training, in September, 1982, competent was designated
professional medical representative (PMR) and was assigned to cover the sales
territory comprising of Sta. Cruz, Binondo and a part of Quiapo and Divisoria, of the Metro Manila
district. In connection with the respondent company's marketing and sales
operations, it had been its policy and established practice of undertaking
employment movements and/or reassignments from one territorial area to another
as the exigencies of its operations require and to hire only applicant
salesmen, including professional medical representatives (PMRs) who were
willing to take provincial assignments, at least insofar as male applicants
were concerned. Likewise, respondent company had made reassignments or
transfers of sales personnel which included PMRs from one territorial area of
responsibility to another on a more or less regular basis. In complainant's
application for employment with respondent company, he agreed to the following:
1) that if employed he win accept assignment in the provinces and/or cities
anywhere in the Philippines; 2) he is willing and can move into and live in the
territory assigned to him; and (3) that should any answer or statement in his
application for employment be found false or incorrect, he will be subject to
immediate dismissal, if then employed. On 22 July 1983, respondent Victa called
complainant to his office and informed the latter that he was being transferred
effective 1 August 1983 to the newly opened Cagayan territory comprising the
provinces of Cagayan, Nueva Vizcaya and Isabela. The transfer order was made
formal in a memorandum dated 29 July 1983. Among the reasons given for
complainant's selection as PMR for the Cagayan territory were: The territory
required a veteran and seasoned PMR who could operate immediately with minimum
training and supervision. Likewise, a PMR who can immediately exploit the vast
business potential of the area. In a letter dated 1 August 1983, which was
received by Abbott on 4 August 1983, competent, thru his lawyer, objected to
the transfer on the grounds that it was not only a demotion but also personal
and punitive in nature without basis legally and
factually. On 8 August 1983, Victa issued another inter-office correspondence
to competent, giving the latter up to 15 August 1983 within which to comply
with the transfer order, otherwise his would be dropped from the payroll for
having abandoned his job. When competent failed to report to his new
assignment, Abbott assigned thereat Fausto Antonio T. Tibi another PED PMR who
was priorly covering the provinces of Nueva Ecija and Tarlac. Meanwhile,
complainant filed applications for vacation leave from 2 to 9 August 1983, and
then from 10 to 13 August 1983. And on 18 August 1983, he filed the present
complaint. After due consideration of the evidence adduced by the parties, the
Arbiter below ruled for the respondent on the ground that the complainant is
guilty of gross insubordination.
11.
Respondents cited the case of FEDERICO NUEZ vs.
NATIONAL LABOR RELATIONS COMMISSION, LABOR ARBITER MANUEL ASUNCION, PHILIPPINE
OVERSEAS TELECOMMUNICATIONS CORPORATION (PHILCOMSAT), HONORIO POBLADOR, RAMON
NIETO, FRED AUJERO and ROMEO VALENCIA, G.R. No. 107574 December 28, 1994. Again this case is not applicable to X X X.
In the said case, petitioner Nuez was a driver of private respondent PHILCOMSAT
since 1 May 1970. On 25 November 1988 he was assigned to its station in Baras,
Antipolo, Rizal, from seven-thirty in the morning to three-thirty in the
afternoon. At one-thirty that afternoon, Engr. Jeremias Sevilla, the officer in
charge and the highest ranking official of the station, asked Nuez to drive the
employees to the Makati head office to collect their profit shares. Nuez
declined saying that he had an important personal appointment right after
office hours. At two-thirty that same afternoon, he also declined a similar
order given on the phone by his vehicle supervisor, Pedro Sibal, reasoning that
"Ayaw kong magmaneho
dahil may bibilhin ako sa Lagundi. Kung gusto mo yong 'loyalist' ang magmaneho."
In his memorandum of 28 November 1988, Station Manager Ramon Bisuna required
Nuez to explain within seventy-two hours why he should not be administratively
dealt with for disobeying an order of their most senior officer on 25 November
1988. In his written reply dated 1 December 1988, Nuez mentioned a personal
appointment in justification for his refusal to render "overtime"
service and that "ferrying employees . . . was not a kind of emergency
that . . . warrants (the) charge of disobedience." Taking into consideration
the reports of Engr. Sevilla and Supervisor Sibal as well as the letter of
petitioner Nuez, AVP for Transport and Maintenance Fredelino Aujero referred
the matter to Vice President for Administration Ramon V. Nieto for appropriate
action and invited his attention to the Code of Disciplinary Action of the
company providing that "refusal to obey any lawful order or instruction of
a superior is classified as insubordination, an extremely serious offense and
its first infraction calls for dismissal of the erring employee." The
report of Aujero pointed out that Nuez could have obeyed the directive and
still have enough time to attend to his appointment because the order was given
him two hours before his tour of duty ended and, moreover, he was seen playing
billiards after office hours. Vice President Nieto then issued a memorandum to
Nuez terminating his employment effective 26 December 1988 for insubordination.
In his letter for reconsideration dated 1 January 1989, Nuez explained to Vice
President Nieto that after failing to get a ride to Lagundi, he went with the
company coaster at four-thirty in the afternoon and then proceeded to TMC to
play billiards when the person he wanted to see at Lagundi had already left. On
6 March 1989, Nuez filed this suit for illegal dismissal, indemnity pay, moral
and exemplary damages and attorney's fees. On 29 January
1990, Labor Arbiter Manuel P. Asuncion dismissed the complaint for lack of
merit but awarded Nuez a "monetary consideration" in an amount
equivalent to his one-half month salary for every year of service. On appeal,
the National Labor Relations Commission affirmed on 15 June 1992 the decision
of the Labor Arbiter but limited the financial assistance to Nuez in an amount
equivalent to three months basic pay only.
12. As
to the issue of PERSONAL LIABILITY for damages of CORPORATE OFFICERS in illegal
dismissal cases, although the case of M+W ZANDER PHILIPPINES, INC. and ROLF
WILTSCHEK vs. TRINIDAD M. ENRIQUEZ, G.R. No. 169173, June 5, 2009, which cited the case of EPG
Construction Company, Inc., et al. v. Court of Appeals,
et al., G.R. No. 103372, June 22, 1992
(also cited by respondents
in their position paper, pp. 26, et, seq.),
held that the general
manager of a corporation should not be made personally answerable for the
payment of an illegally dismissed employee's monetary claims arising from the
dismissal because the employer corporation has a separate and
distinct personality from its officers who merely act as its agents, it cited a
clear EXCEPTION, that is, where
the official "had acted maliciously or in bad faith," in which event
he may be made personally liable for his own act. X X X submits that, in
this case, respondents acted on bad
faith and with malice when they ABUSED their right to discipline X X X;
when they relied on flimsy grounds (NOT
GROSS OR HABITUAL OR SERIOUS OR GRAVE
violations as provided by the Art. 282
of the Labor Code) to dismiss him;
when they RUSHED, RAILROADED and MANIPULATED the sole administrative hearing
without informing X x x of his human right
to counsel (while two lawyers
represented the respondent Company and its prosecuting corporate officers); when they
and their agents did not grant X x x the fair opportunity to confront the
complainants and witnesses against him; when they did not give him advance copies
of the alleged complaints and other documentary evidence against him before the
administrative hearing (Note: The
respondents, thru their lawyer, gave copies of the 201 File and the
Administrative Case Record of X x x only when this case had been filed with the
NLRC and only upon motion in open court and reiterated in writing made by
counsel for X x x); when X x x’ termination date was made effective on the
very day of receipt by him of the notice of dismissal (February 2, 2012); when the president X X Xdid not sign the notice
of dismissal, contrary to the company’s code of discipline/conduct; when X X Xand
X X X did not attend the sole administrative hearing and thus had no personal
knowledge of the facts and exhibits adduced in evidence during such hearing and
yet they signed and/or affirmed the notice of dismissal and rejected X X X’
appeal to X x xas if they personally knew the entire case record and
proceedings.
RESPONDENTS must be made to pay for the MENTAL ANGUISH,
EXTREME ANXIETIES, SLEEPLESS NIGHTS, BESMIRCHED REPUTATION, AND PUBLIC RIDICULE
that X x x has suffered and continues to suffer by reason of the abusive act of
respondents in unjustly dismissing him from the service, which act has
jeopardized his ability to financially support his two young children and his
wife and to pay for his financial obligations to his creditors. Yes, they may be prominent stockholders and
well-paid officers of a huge corporation as X x x Global City, Inc., occupying
top positions in their own little kingdoms. But that does not give them the
dictatorial right to patently and tortuously trample upon the rights of X x x,
a worker and a Filipino citizen whose rights are protected by the law or to endanger the very physical
subsistence and existence of his helpless family by unjustly dismissing him
from his source of livelihood and income.
13. The
case of LLORENTE vs. SANDIGANBAYAN, ET
AL., EN BANC, [G.R. No. 85464. October
3, 1991] is applicable by analogy
as to the issue of the personal liability
of private and public officers for acts done in bad faith, with abuse of
right, with graver abuse of discretion, and the like.
Syllabus.
X x x.
CIVIL LAW; INDEPENDENT CIVIL
ACTIONS; DAMAGES FOR ACTS DONE IN BAD FAITH; CASE AT BAR. — The acts of the petitioner were legal
(that is, pursuant to procedures), as he insists in this petition, yet it does
not follow, as we said, that his acts were done in good faith. For
emphasis, he had no valid reason to "go legal" all of a sudden with
respect to Mr. Curio, since he had cleared three employees who, as the
Sandiganbayan found, "were all similarly circumstanced in that they all
had pending obligations when, their clearances were filed for consideration,
warranting similar official action. The Court is convinced that the petitioner
had unjustly discriminated against
Mr. Curio. It is no defense that the
petitioner was motivated by no ill-will (a grudge, according to the
Sandiganbayan), since the facts speak for themselves. It is no defense either
that he was, after all, complying merely with legal procedures since, as we
indicated, he was not as strict with respect to the three retiring other
employees. There can be no other logical conclusion that he was acting
unfairly, no more, no less, to Mr. Curio. It is the essence of Article 19 of the Civil Code, under
which the petitioner was made to pay damages, together with Article 27, that the performance of duty be done with justice and good faith. We believe that the petitioner is liable
under Article 19. The Court finds the award of P90,000.00 to be justified
by Article 2202 of the Civil Code,
which holds the defendant liable for all
"natural and probable" damages. Hermenegildo Curio presented
evidence that as a consequence of the petitioner's
refusal to clear him, he failed to land a job at the Philippine Cotton
Authority and Philippine First Marketing Authority. He also testified that a
job in either office would have earned him a salary of P2,500.00 a month, or
P150,000.00 in five years. Deducting his probable expenses of reasonably about
P1,000.00 a month, or P60,000.00 in five years, the petitioner owes him a total
of actual damages of P90,000.00.
X x x.
14. Further
on the issue of personal liability of officers, by analogy, the case of The City of Angeles, Hon. Antonio
Abad Santos vs. CA, et al., G.R. No. 97882, Aug. 26, l996, citing Rama vs. CA,
148 SCRA 498; San Luis vs. CA, 174 SCRA 258, is applicable. In that case, a donation of a parcel of land to the
City of Angeles, Pampanga was made for the sole purpose of using it as the site
of the Angeles City Sports Center except cockfighting. Instead, a Drug Rehabilitation Center was constructed
upon approval and orders of the mayor and the members of the sangguniang
panglunsod. In ordering the demolition of
the Center and the reimbursement of the public funds spent for the
construction of the Center, the Court held that it must be borne by the
officials of Angeles City
who ordered and directed the
construction. It held that public officials are not immune from damages
in their personal capacities arising from acts done in bad faith. They
are liable in their personal capacities
for whatever damages they may cause
by their acts done with malice and in bad faith or beyond the scope
of their authority or jurisdiction.[citing Vidad
vs. RTC Negros Oriental, Branch
42, 227 SCRA 271, M.H. Wylie vs. Rarang, 209 SCEA 357;
Orocio vs. COA, 213 SCRA 109]. But such officials must be sued in their personal capacity.
In this case the public officials deliberately violated the law,
and persisted in their violation, attempted to deceive the courts
by their pretended change in the
use of the Center and making
it a mockery of justice. The Court
held that public officials were held
liable personally for damages
arising from their illegal acts
done in bad faith if said
officials were sued both in their
official and personal capacities.
Thus
held the Court, inter alia:
X x x.
This Court has time and
again ruled that public officials are not immune from damages in
their personal capacities arising from
acts done in bad faith. Otherwise stated, a public official may
be liable for whatever damage he may have caused by his act done
with malice and in bad faith or
beyond the scope of his
authority or jurisdiction. (See Vidal
vs. RTC, Negros Oriental, 227 SCRA 271);
Wylie vs. Rarang, 209 SCRA 357; Orocio
vs. COA, 213 SCRA 109). In the
instant case, the public officials concerned
deliberately violated the law and
persisted in their violations, going so far as attempting to deceive the
courts by their pretended change of purpose and usage for the
center, and making a
mockery of the judicial system." Indisputably, said public officials acted beyond the scope of
their authority and jurisdiction and with evident bad faith.
However, as noted by the trial court, the petitioners mayor and members of the
Sangguniang Panlungsod of Angeles
City were sued only in their
official capacities, hence, they
could not be held personally
liable without first giving them
their day in court. Prevailing jurisprudence Roma
vs. CA, 148 SCRA 496; San Luis cs. CA,
174 SCRA 258) holding
that public officials are
personally liable for damages arising from illegal acts done in
bad faith are premised on said
officials having been sued both in their
official and personal capacities.
After due
consideration of the circumstances,
we believe that the fairest and
most equitable solution is to have the
City of Angeles, donee of the subject open space and, ostensibly, the main
beneficiary of the construction and operation of the
proposed drug rehabilitation
center, undertake the demolition and removal of said center, and if feasible,
recover the cost thereof from the city
officials concerned. (The City of Angeles
vs. CA, et. al., G. R. No. 97882,
Aug. 28, 1996).
R E L I E F
WHEREFORE, premises considered, it is respectfully
prayed that the respondents, jointly and severally, be found guilty and liable
for the ILLEGAL DISMISSAL of the complainant, with the concomitant imposition
of civil awards, penalties and damages against the said respondents, more specifically: BACKWAGES computed
according to existing jurisprudence; SEPARATION PAY as provided by existing
jurisprudence, in lieu of restoration of the complainant to his former
position, considering the strained relations between the parties at present by reason of this pending case; MORAL
DAMAGES in the amount of P500,000.00; EXEMPLARY DAMAGES in the amount of P500,000.00;
and ATTORNEY’S FEES equivalent to 10% of recoverable damages, and COSTS OF SUIT
and LITIGATION EXPENSES.
Further, it is respectfully prayed that, pendent lite, the unquestioned/admitted
receivable of the complainant from the respondent company, in the amount of P19, 846.96, be released to him soonest
for humanitarian reasons, considering the financial difficulties that he and
his family are now severely facing by reason of his abrupt termination from the
service.
Finally, the complainant respectfully
prays for such and other reliefs as may be deemed just and equitable in the
premises.
Las Pinas City, April 30, 2012.
LASERNA
CUEVA-MERCADER
LAW
OFFICES
Counsel for Complainant
Unit 15, Star
Arcade, C.V. Star Ave.
Philamlife
Village, Las Pinas City 1743
Tel/Fax 8462539,
8725443
MANUEL J. LASERNA JR.
Roll No. 33640,
4/27/85
IBP Lifetime
Member No. 1907
IBP Leyte
Chapter
MCLE Exemption
No. IV-1326, 2/3/11
PTR No.
10288207, 1/18/12, Las Pinas
VERIFICATION
I, x x x., of legal age, married, Filipino, and with
postal address at x x x , under oath,
depose: that I am the complainant in the
foregoing Reply Position Paper; that I caused the preparation thereof; that I
have read its contents; and that the same are true and correct of my own
direct, personal knowledge.
Quezon City, April 30, 2012.
X
x x.
Affiant
SUBSCRIBED and sworn to before me in
Quezon City this 30th day of April
2012, affiant showing his Driver’s License No. x x x expiring on x x x .
Administering
Labor Arbiter
CC:
X x x
LAW OFFICES
(Atty. X x x)
Counsel for
Respondents
---------------
(Personal Delivery
During the Hearing Set
On x x x at x x x)
Client
File
