REPUBLIC OF THE
PHILIPPINES
DEPARTMENT OF
LABOR AND EMPLOYMENT
NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
PPSTA BLDG.,
BANAWE AVE., QUEZON CITY
OFFICE OF LABOR ARBITER x x x
ROOM 311, 3RD FLOOR, PPSTA BLDG.
X x x x,
Complainant,
NLRC
RAB NCR
-
Versus - CASE NO. NCR-
X x x.
X x x , INC.
X x x; AND
X x x,
Respondents.
x-------------------------------------------------------x
POSITION PAPER
FOR THE COMPLAINANT
WITH
URGENT EX PARTE MOTION
FOR PRODUCTION, INSPECTION AND EXAMINATION OF THE “201 FILE” (PERSONNEL FILE) OF THE COMPLAINANT IN THE
POSSESSION OF THE RESPONDENTS
The
COMPLAINANT, pro se, respectfully
states:
I.
STATEMENT
OF FACTS
1. The
complainant is XXX XXX XXX, 44 years old, Filipino, and residing at x x x.
2. The
three respondents in this case are the following:
(a) XXX XXX
AND XXX, INC. (corporate employer);
(b) Ms. “Xxx”
Xxx, VP for HR Business Partner –Gaming (now the Vice President – Human Resource Department); and
(c) Mr. Xxx Xxx,
Chairman of XXX. They hold office at the Executive Offices, XXX XXX, xxx Ave., xxx
City, xxx, xxx City.
3. His
position in the company was xxx Supervisor.
4. He
was hired by the company on January 7, 2013.
5. He
started with a Gross Annual Salary of P937,107.69.
He was paid a Gross 13th Month Pay of P78,092.31 per annum. His
salaries were paid to him every 15th and 3oth day of the month (with the “cut off” dates of 5th day
and 2oth day of each month). He started with a monthly P84,600.00.
6. His
latest monthly salary amounted to P85,431.90/month (as of
May 8, 2015).
7. He
was provided the following benefits during his tenure:
a.
Rice Subsidy – one sack/month. Its value was converted to cash at P1,000/month.
b.
Service Charge – latest amount thereof as of May 2015 was P2,993.13/month.
c.
Paid leave credits of twenty
five (25) days/annum.
d.
Free meals (once per duty day).
e.
Health insurance – for himself and one of his children (Bill Cameron E. Xxx, 17 years old
[2015], student of Far Eastern University, BS Psychology).
f. Life insurance – with a face
value of P280,000.00.
8. See
the following documents in support of the foregoing statements:
·
Annex “A”
- EMPLOYMENT OFFER, dated November
23,
2012;
·
Annex “B”
– COMPUTATION OF ANNUAL INCOME
AND WITHHOLDING TAX AS OF
THE YEAR 2015.
9. In
a Letter, dated January 28, 2014, issued by Mr. xxx xxx, Chief Operating
Officer and President, for his
“valuable contributions” to the company, he was given a BONUS based on
his base pay as of September 30, 2013. It was released on installment basis. It
was subject to certain conditions stated in the said Letter.
A copy of the said Letter,
dated January 28, 2014, is attached as Annex
“C” hereof.
10.
The complainant was a regular employee of the
respondent company when he was terminated on May 8, 2015 having
served it for more than one year as of that date.
11. He
was imposed the following penalties for TARDINESS:
(a) On March 15, 2014, a WARNING was annotated by the Pit
Manager in the complainant’s record in the TEAM TRACK, where the daily
monitoring of deviations and commendations of employees are encoded).
As
shown in a Notice to Explain, dated 11
April 2014, issued by the Human Resource xxx – xxx Department headed by respondent
Xxx Xxx, the complainant was penalized for twelve
instances of tardiness, the dates of which were stated in the said Notice
(between the period March 12, 2013 to
February 19, 2014).
The
Notice cited Sec. VI, Article XX (Punctuality
and Attendance 15A) of the TEAM MEMBER CODE OF GOOD BEHAVIOR (TMCGB).
Pursuant
to the said Notice, he submitted to the office of the respondent Xxx Xxx one original
copy of his handwritten EXPLANATION (He did not prepare an extra file copy for
himself).
See
Annex “D” – NOTICE TO EXPLAIN, dated
11 April 2014.
(b) On May 7-9, 2014 he was SUSPENDED FOR THREE DAYS. He
had misplace his copy now of the suspension order.
©
On July 13-18, 2014 he was SUSPENDED FOR SIX DAYS. He had misplace his copy now
of the suspension order. Some of his
tardiness before such suspension were caused by the street blockage due to the
on-going construction and/or improvement of the road where the Casino was
located.
In the early
part of 2015 some of his tardiness were caused by the heavy traffic due to the
papal visit of Pope Francis.
After his six-day suspension on July 13-18, 2014, he
recall that he was late only once, i.e., January
15, 2015.
On May 8, 2015 at about 2:00 PM to 4:00 PM the complainant was ABRUPTLY AND VERBALLY DISMISSED FROM
EMPLOYMENT by the respondent Xxx Xxx
in the presence of his immediate
superior xxx xxx (xxx Manager) inside the room of Xxx Xxx.
(He recall that he had only one or two tardiness before May 8, 2015).
He was then on duty from 7:00
AM to 3:00 PM.
He was sequestered by Xxx Xxx inside her room.
He was threatened and forced by Xxx Xxx to IMMEDIATELY RESIGN.
Otherwise, she would TERMINATE him (that would surely affect his future
employments in other entities, if any).
No prior notice to explain was issued to him.
No formal charge was filed against him.
No administrative hearings (due process and opportunity to be heard)
were held to discuss the problem, resolve it amicably, and hear his side. His
constitutional right to due process of law was violated.
No lawyer for company was present
to explain the situation from the point of view of Labor Law.
He was not given the chance to confer with a lawyer of his choice.
His constitutional right to counsel was violated.
He was not allowed to confer
with his wife who was also employed in XXX.
For two hours he was forced to stay inside the room of the
respondent Xxx Xxx and/or within its immediate premises inside the HR area near
the room od Xxx Xxx. He was treated like a prisoner.
Inside the room of respondent Xxx Xxx he begged her for three days
to think about the former’s order for him to issue immediately on the spot a
handwritten resignation letter.
Xxx Xxx denied the request. She forced him to write on the spot a
handwritten resignation letter. She threatened him with TERMINATION.
He was not allowed to go to
his locker to get his mobile phone to call his wife to confer with her.
He was not allowed to go to
the toilet.
He was not allowed to call up a lawyer.
He was not read the charges against him, if any.
Neither was there a notice of decision dismissing him from
employment.
Only after two hours of forcible sequestration inside the room of
the respondent Xxx Xxx was he allowed to go home.
12.
As instructed, after three days, he returned to the office of the respondent Xxx
Xxx (May 11, 2015 or thereabout) to turn over to her staff over a copy of his TMCGB
(employees manual), xxx xxx MANUAL, and his health insurance card.
(He was unable to turn over
to the HR staff the health insurance card for his child xxx Xxx because the complainant
had misplaced it at that time. Hence, we was charged P200.00 for such loss).
The HR staff gave him the
contact numbers of the staff COMPENSATION AND BENEFITS (COMPENBEN) Office,
which was also under the HR Dept., to follow up his receivable salaries and
other employee benefits, namely xxx xxx with Tel. No. xxx. and xxx with Mobile
No. xxx.
He was told by the HR staff
to call from the said COMPENBEN staff after three or four months.
13.
RECEIVABLE
SALARIES AND OTHE REMPLOYEE BENEFITS
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.
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.
He was told he still had to pay the company the net amount of P35,059.51.
(Refer to Annex “B”,
supra).
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”).
14.Sometime
in August 2015, the complainant called up COMPENBEN five times. He was told no
company action has been done yet.
Sometime September 2015 he
called up the said office six times. He was told no company action has been
done yet.
Sometime in October 2015 he called up again the said office. This
time, he was told he was still “NEGATIVE”.
He was being ordered to pay the
company P35,059.51 before he could be cleared and his Certificate of Employment
released to him.
15. As earlier stated, his wife xxx xxx is
employed with the corporate respondent Xxx. Her position is that of a “xxx Manager 2 – xxx”. She started
working with the company in November or December 2012 or thereabout up to the present time.
16.
The complainant applied with xxx xxx xxx (a new xxx company to be opened in December
2016 or thereabout) for the position of xxxx SUPERVISOR – xxx for a (reduced) salary
P45,000.00/month.
He was supposed to be hired by the said company in Oct 2016 or
thereabout. But he could not get his CERTIFICATE OF EMPLOYMENT (COE) from the
respondent Xxx unless he would first pay the company the amount of P35,059.51
that it was demanding.
On October 5,
2016 the complainant sought the legal assistance of the Single Entry Approach (SEnA) of this Honorable
Commission. It issued a notice of conference dated October 5, 2016 to the
respondents. It set the mediation on October 19, 2016 at 10:00 AM. No compromise was reached. The respondents
were then represented by Atty. xxx.
See the following documents as
proofs thereof:
·
Annex “E” - NOTICE
OF CONFERENCE, dated October
5, 2016.
·
Annex “F” - MINUTES OF CONFERENCE, dated
October
19, 2016; and
·
Annex “G” -
REFFERAL, dated October 26, 2016.
17. The complaint was thus referred filed with
this Honorable Commission. It was
raffled to the Honorable Labor Arbiter xxx
xxx. See the following documents:
·
Annex “H”
– COMPLAINT, dated October 26, 2016.
·
Annex “I”
– MINUTES, dated November 11, 2016.
18.No
compromise was reached at the office of the labor arbiter. Thus the Arbiter
ordered the parties to file their respective position papers on November 29, 2016.
19. The complainant has written the HR Department
of the respondent company to provide him with a complete copy of his 201 File
(Personnel File) because he would need its contents to support his position
paper.
The HR staff xxx xxx simply received it
without any favorable action. He made an annotation thereon that the said 201
File of the complainant had been “pulled out”. By whom, to
whom forwarded, and for what purpose, he did not state. Only the birth
certificate and transcripts of schools records were given to the complainant.
See Annex
“J” – LETTER of the complainant duly
received by HR-CompenBen Staff Jerson Balandra on November 17, 2016.
20.
For whatever legal purposes it may serve,
considering that the credentials of the complainant are relevant to his
position paper, he is attaching herewith his BIODATA, TRANSCRIPTS OF SCHOOL
RECORDS, AND DIPLOMA marked as Annex “K”
with submarkings.
21. To prove his good past
employment performance and status, attached hereto are copies of various certificates of service/employment and
testimonials issued by his previous employers from 1994 to 2012 (x x x, x x x , x x x x, x x x )
marked as Annex “L with
submarkings.
22.
His National
Bureau of Investigation (NBI) Clearance (valid until September 21, 2017) is
attached as Annex “M” hereof to
prove his good moral character.
23.
The
family home of the complainant in x x x x
was foreclosed by the xxx Bank
of xxx City in January or February 2015 or thereabout. Due to the illegal
dismissal of the complainant on May 8, 2015, he was unable to save enough funds
to REDEEM the property within the one-year
redemption period.
They
continue to suffer financial difficulties to support their three young children,
two of whom are students and the youngest is
only two years old.
Their
family life and psychological well-being
as a family have been terribly traumatized, tortured, disturbed,
inconvenienced, and shamed to this very day.
This is one reason that nullifies the
accusation of the respondents that the complainant had allegedly resigned voluntarily. Who would resign from his well-paying job amidst his unpaid mortgage
loan in the bank?
To prove the foregoing statement, see the
following annexes:
·
Annex “N”
with submarkings – LETTER, dated November 21, 2016, to xxx Bank asking for
a certification to prove the foreclosure of their family home.
·
Annex “O”
with submarkings - xxx Bank records of
their mortgage loan, copy of the land title of the foreclosed family home, and
proof of foreclosure of their family home (which
he hopes to secure on November 28, 2016, if time allows).
The illegal acts
of the respondents cause the complainant extreme psychological trauma and
anxieties, sleepless nights, besmirched reputation and social humiliation. He
deserves an award of MORAL DAMAGES of P500,000.00, pursuant to the Civil Code.
He likewise deserves an award of EXEMPLARY DAMAGES of P500,000.00 to serve as a
lesson to society, pursuant to the same Code. Further, he deserves an award of
attorney’s fees equivalent to Ten
Percent of the damages awarded, pursuant to the Labor Code.
II.
ISSUE
The sole issue is whether or not the complainant is entitled to the
reliefs prayed for in his complaint on the ground of illegal dismissal, that is, reinstatement, backwages, money claims, and moral and exemplary
damages, and attorney’s fees.
III.
DISCUSSION
24.
A copy of the relevant parts of the TMCGB (employees’ manual/handbook) is
attached as Annex “P” hereof
with submarkings.
Article X of the TMCGB contains the DUE PROCESS PROCEDURE of the
respondent company.
The respondents violated the
provisions or steps described hereinbelow.
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.
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.
Step
Three refers to the procedures for FACT-FINDING BY IMMEDIATE SUPERVISOR (not by the Vice President for Human
Resource Department headed by respondent Xxx Xxx).
(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 xxx (i.e., respondent Xxx Xxx).
(i)
The “HRA” 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.
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.
It is presumed that the
foregoing proceedings are documented in the 201 File of the employee.
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 Office (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.
Article XI refers to the graduated scale of penalties from CORRECTIVE
ACTION/DECISION, CORRECTIVE COUNSELLING (CODE: CC), WRITTEN WARNING (CODE: WW),
SUSPENSION (CODE: S), AND DISMISSAL (CODE: D).
The graduated scale of the penalty
of SUSPENSION ranges from THREE DAYS TO THIRTY DAYS.
DISMISSAL is the worst of all the penalties. It is xxxed to only
after a “THOROUGH FACT-FINDING HAS BEEN DONE.”
The TMCGB empowers the Department
Head, Division Head, Vice President – Human Resources and Administration
(respondent Xxx Xxx), and xxx (respondent Xxx Xxx) to DISMISS an employee and a
supervisor.
This power presupposes the prior observance of the DUE PROCESS rules
stipulated in the TMCGB, supra.
A written NOTICE OF CORRECTIVE ACTION shall be served on the employee.
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.
Article XV refers to the PRESCRIPTIVE PERIOD OF RECORD KEEPING.
The prescriptive period is two years for penalties of three
to fifteen days suspension and three
years for penalties of sixteen to thirty days suspension. A subsequent deviation during the
prescriptive period stops the
running of such prescriptive period for
the preceding deviation. (This
provision appears to be unconstitutional for being violative of substantive due
process and for being unreasonable). The running of the new prescriptive period
is based on the “latest deviation”.
Habituality negates the effects of prescription.
Article XVIII refers to SUMMARY PROCEEDING IN LIEU OF FACT FINDING.
Summary proceeding is INAPPLICABLE to cases where the imposable
penalty is LESS THAN DISMISSAL. This
covers TARDINESS cases.
For purposes of PREVENTIVE
SUSPENSION (which is irrelevant in this case), no fact-finding is needed (and
it may be immediately imposed) IF: “committed in the presence of two or more
witnesses”; “deviation is serious and evidence of guilt is strong”; employee is
“convicted by final judgment” in any court; “multiple offender”; and
“notoriously undesirable or dangerous.”
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.
25.
As earlier stated in Paragraph 11, supra, after
a six days suspension, the complainant was abruptly and illegal DISMISSED on
May 8, 2015.
“x x x.
FIRST VIOLATION
As shown in a Notice
to Explain, dated 11 April 2014, issued by the Human Resource Business
Partner – Gaming Department headed by respondent Xxx Xxx, the complainant was penalized
for twelve instances of tardiness,
the dates of which were stated in the said Notice (between the period March 12, 2013 to February 19, 2014).
The Notice cited Sec. VI, Article XX
(Punctuality and Attendance 15A) of the TEAM MEMBER CODE OF GOOD BEHAVIOR (TMCGB).
To his recollection, the penalty of Corrective
Counselling (CC) was imposed on him. He
does not recall having been issued a memorandum of WARNING. Pursuant to the
said Notice, he submitted to the office of the respondent Xxx Xxx one original
copy of his handwritten EXPLANATION
(no file copy for himself).
See Annex “D”
– NOTICE TO EXPLAIN, dated 11 April 2014.
The complainant he assumes it was a CORRECTIVE
COUNSELLING penalty.
SECOND
VIOLATION
In the middle of 2014 or thereabout he was issued
a memorandum of WARNING. He has no copy now
the WARNING document .
THIRD VIOLATION
In November or December 2014 or thereabout he
was SUSPENDED FOR THREE DAYS. He has no
copy now of the document showing such suspension.
FOURTH VIOLATION
In March 2014 or thereabout he was SUSPENDED FOR SIX
DAYS. He has no copy now of the document showing such suspension.
NOTE: Some, if not many, of the TARDINESS of the
complainant were caused by the heavy traffic due to the prolonged CONSTRUCTION and/or
IMPROVEMENT of the street where the xxx was located (with cranes and heavy
equipment on the road) and the long papal visit of POPE FRANCIS in early 2015.
ABRUPT DISMISSAL
On May 8,
2014 at about 2:00 PM to 4:00 PM the complainant was ABRUPTLY AND VERBALLY DISMISSED FROM EMPLOYMENT by the respondent Xxx Xxx in the presence of his immediate superior xxx xxx (xxx Shift
Manager) inside the room of Xxx Xxx.
He was then on duty from 7:00 AM to 3:00 PM.
He was sequestered by Xxx Xxx inside her room.
He was threatened and forced by Xxx Xxx to
IMMEDIATELY RESIGN. Otherwise, she would TERMINATE him (that would surely
affect his future employments in other entities, if any).
No prior notice to explain was issued to him.
No formal charge was filed against him.
No administrative hearings (due process and
opportunity to be heard) were held to discuss the problem, resolve it amicably,
and hear his side. His constitutional right to due process of law was violated.
X x x.”
26.
Article 277 of the Labor Code provides for the
DUE PROCESS OF LAW:
“x x x.
Article. 277. Miscellaneous provisions. - (a) All
unions are authorized to collect reasonable membership fees, union dues,
assessments and fines and other contributions for labor education and research,
mutual death and hospitalization benefits, welfare fund, strike fund and credit
and cooperative undertakings. (As amended
by Section 33, Republic Act No. 6715, March 21, 1989).
(b)
Subject to the
constitutional right of workers to security of tenure and their right to be
protected against dismissal except for a just and authorized cause and without
prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker
whose employment is sought to be terminated a written notice containing a
statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend
himself with the assistance of his representative if he so desires in
accordance with company rules and regulations promulgated pursuant to
guidelines set by the Department of Labor and Employment.
Any decision taken by the employer shall be without prejudice to the right of the worker to contest the
validity or legality of his dismissal by filing a complaint with the regional
branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or
authorized cause shall rest on the employer.
The Secretary of the Department of Labor and Employment may suspend the
effects of the termination pending resolution of the dispute in the event of a
prima facie finding by the appropriate official of the Department of Labor and
Employment before whom such dispute is pending that the termination may cause a
serious labor dispute or is in implementation of a mass lay-off. (As amended by Section 33, Republic Act No.
6715, March 21, 1989).
X x x.”
27.
Article 279 of the Code provides for the
SECURITY OF TENURE of a worker:
“x x x.
ART.
279. Security of tenure. - In
cases of regular employment, the employer shall not terminate the
services of an employee except for a just cause or when authorized by this
Title.
An
employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority
rights and other privileges and to his full backwages, inclusive of allowances,
and to his other benefits or their monetary equivalent computed from the time
his compensation was withheld from him up to the time of his actual
reinstatement. (As amended by Section 34, Republic Act No. 6715, March
21, 1989).
X
x x.”
28.
Article 282 of the Code speaks of the just
grounds to dismiss an employee.
“x
x x.
ART. 282. Termination by employer. - An employer may terminate an employment for any of
the following 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
X x x.”
29.
The
complainant is guilty merely of the MINOR
OFFENSE OF TARDINESS.
He is NOT GUILY of SERIOUS MISCONDUCT, GROSS AND HABITUAL NEGLECT, FRAUD OR WILLFUL BREACH OF TRUST, OR COMMISSION OF A CRIME AGAINST THE EMPLOYER OR
HIS FAMILY OR REPRESENTATIVES.
He did not deserve the supreme sanction of DISMISSAL (more so WITHOUT
DUE PROCESS OF LAW).
30.
In the case of CAPIN-CADIZ VS. BRENT HOSPITAL
AND COLLEGE, GR 187417, February 24, 2016, it was held that a worker who
was illegally dismissed is entitled to “entitled
to reinstatement without loss of seniority rights, and with payment of
backwages computed from the time compensation was withheld up to the date of
actual reinstatement.”
“x x x.
Given
the foregoing, Cadiz, therefore, is entitled
to reinstatement without loss of seniority rights, and payment of backwages
computed from the time compensation was withheld up to the date of actual
reinstatement.
Where reinstatement is no longer
viable as an option, separation pay should be awarded as an alternative and as
a form of financial assistance.
55
X x x.
Generally, the computation of
backwages is reckoned from the date of illegal dismissal until actual
reinstatement. 59
In case separation pay is ordered in
lieu of reinstatement or reinstatement is waived by the employee, backwages is
computed from the time of dismissal until the finality of the decision ordering
separation pay. 60
Jurisprudence further clarified that
the period for computing the backwages during the period of appeal should end on
the date that a higher court reversed the labor arbitration ruling of illegal
dismissal. 61
X x x.”
31.
In the case of NEW PUERTO COMMERCIAL,
ET. AL. VS. LOPEZ, ET. AL., GR NO. 1699999, JULY 26, 2010, discussed DUE
PROCESS OF LAW in labor cases.
“x
x x.
In order to validly dismiss an
employee, he must be accorded both substantive and procedural due process by
the employer. Procedural due process requires that the
employee be given a notice of the
charge against him, an ample opportunity to be heard, and a notice of
termination. Even if the aforesaid procedure is conducted after the filing of
the illegal dismissal case, the legality of the dismissal, as to its procedural
aspect, will be upheld provided that the employer is able to show that
compliance with these requirements was not a mere afterthought.
X
x x.
In
termination proceedings of employees, procedural due process consists of the
twin requirements of notice and hearing. The employer must furnish the employee
with two written notices before the termination of employment can be effected: (1) the first apprises the employee of
the particular acts or omissions for which his dismissal is sought; and (2) the
second informs the employee of the employer’s decision to dismiss him.
The requirement of a hearing is complied with as long as there was an
opportunity to be heard, and not necessarily that an actual hearing was
conducted.[14] As we explained in Perez
v. Philippine Telegraph and Telephone Company:[15]
An employee’s right to be heard in termination cases
under Article 277 (b) as implemented by Section 2 (d), Rule I of the
Implementing Rules of Book VI of the Labor Code should be interpreted in broad
strokes. It is satisfied not only by a formal face to face confrontation but by any meaningful opportunity to
controvert the charges against him and to submit evidence in support thereof.
A hearing
means that a party should be given a chance to adduce his evidence to support
his side of the case and that the evidence should be taken into account in the adjudication
of the controversy. Xxx.
X x x.”
IV.
URGENT EX
PARTE MOTION FOR PRODUCTION, INSPECTION AND EXAMINATION OF THE “201 FILE” (PERSONNEL FILE) OF THE COMPLAINANT IN THE
POSSESSION OF THE RESPONDENTS.
32.
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.
V.
MISCELLANEOUS
33.
UNPAID
OFFICIAL TIME (15 MINUTES DAILY BRIEFINGS BEFORE COMMENCING WORK). – A
miscellaneous cause of action that the complainant has alleged is his UNPAID WORKING HOURS OF FIFTEEN MINUTES
DAILY WHICH THE RESPONDENTS REQUIRED ALL EMPLOYEES TO UNDERGO BEFORE COMMENCING
DAILY WORK.
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.
34.
For the record, the complainant will file a
letter with the Arbiter, copy furnished the adverse counsel, a Letter, dated November 19, 2016,
stating and praying for the following:
“x x x.
RE : MANIFESTATION;
XXX vs. XXX XXX, et. al.; NLRC RAD Case No. NCR-xxx.
MABUHAY:
In re: the hearing on November 29, 2016, Tuesday,
10:00 AM, may I please manifest the following:
I am ready to file on November 29, 2016 at 10:00 AM
my POSITION PAPER, without prejudice
to the revival of the Compromise Negotiation.
I move for fifteen days to file my REPLY POSITION PAPER, counted
from November 29, 2016.
Despite the filing of the said pleadings, I respectfully move to revive the
Compromise Negotiation between the parties because I want to avoid a prolonged, costly and tedious litigation,
considering that I have been jobless since the time I was dismissed by the
respondent in May 2015.
During the last hearing on November 15, 2016, the
counsel for the respondent, Atty. Xxx Xxx tentatively
offered me the following Compromise:
·
Three months’ separation pay;
·
Release of my unpaid receivables amounting to Fifty Thousand Pesos
(P50,000.00)
·
Release of my Certificate of Employment (COE).
I hereby respectfully counter offer to the
respondent, through the kind intercession of Atty. Xxx, the following
Compromise, subject to mutual
negotiation:
·
Six months’ separation pay
(subject to further negotiation);
·
Release of my unpaid receivables amounting to Fifty Thousand Pesos
(P50,000.00)
·
Release of my Certificate of Employment (COE).
If Atty. Xxx is empowered to decide on my foregoing
counter proposal during the next hearing on November 29, 2016, I move that the simplified Compromise Agreement
be written by the Labor Arbiter in the Minutes of the Hearing on the said date.
If Atty. Xxx will need to consult the management of
the respondent on my foregoing counter proposal, I move that the hearing on
November 29, 2016 be reset to the
following week or two weeks
so that Atty. Xxx could report back to the Labor Arbiter the decision of the
management on my counter proposal.
Thank you for your kind assistance. x x x.”
VI.
PRAYER
WHEREFORE, premises considered, it is respectfully prayed that
judgment be issued declaring that the complainant has been ILLEGALLY DISMISSED
by the respondents.
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, supra.
(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 complainants respectfully
pays for such and other reliefs as may be deemed just and equitable in the
premises.
Xxx City, November 26, 2016.
MR. XXX XXX
Complainant
Address:
x x x.
SUBSCRIBED
AND SWORN TO BEFORE ME in xxx City on November 28, 2016, affiant showing his
competent proof of identity as follows: LTO
Driver’s License No. x x x.
Notary
Public
Doc.
No.
Page
No.
Book
No.
Series
of 2016.
Copy
Furnished:
Atty. Xxx Xxx
Counsel
for Respondents
(To be personally given
during the
hearing on November 29, 2016
at 10:000 AM)
