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.
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 xxx
ROOM xxx, 3RD
FLOOR, PPSTA BLDG.
Xxx xxx xxx,
Complainant,
NLRC
RAB NCR
-
Versus - CASE NO. NCR-
xx-xxxxx-xx.
Xxx RESORTS
AND HOTELS INC.;
Xxx xxx; AND
Xxx xxx,
Respondents.
x-------------------------------------------------------x
REPLY POSITION PAPER
(FOR THE COMPLAINANT)
WITH REITERATION OF
THE COMPLAINANT’S
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.
THE COMPLAINANT DID
NOT “VOLUNTARILY”, “FREELY” AND “INTELLIGENTLY” RESIGN.
·
HE WAS “FORCED”, “INTIMIDATED” AND “PSYCHOLOGICALLY
TORTURED” TO RESIGN.
·
HE WAS A HELPLESS AND INNOCENT VICTIM OF “CONSTRUCTIVE
DISMISSAL”.
·
HIS CONSTITUTIONAL RIGHTS TO (A) “SECURITY OF TENURE”,
(B) “PROCEDURAL AND SUBSTANTIVE DUE PROCESS OF LAW”, AND (C) “COUNSEL” WERE WILLFULLY
VIOLATED BY THE RESPONDENTS.
·
THE RESPONDENTS WRONGFULLY VIOLATED ITS OWN “INTERNAL
RULES OF PROCEDURES” FOR ADMINISTRATIVE DISCIPLINARY CASES.
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.
4.12.
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.
6.2.2.1.
He did not resign.
6.2.2.2.
He was detained, intimidated and forced by Xxx to
resign.
6.2.2.3.
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.
6.3.2.1.
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).
6.3.2.2.
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.
6.3.2.3.
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.
6.3.2.4.
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.
6.3.2.5.
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.
6.3.2.6.
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.”
6.3.2.7.
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.
6.3.2.8.
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.
6.3.2.9.
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”).
6.3.2.10.
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.
6.4.0.1.
He did not receive it.
6.4.0.2.
It was not officially served on him.
6.4.0.3.
He had no official notice and knowledge thereof.
6.4.0.4.
He has no officially copy thereof.
6.4.0.5.
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.
6.4.1.1.
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.
7.1.6.1.
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.
II.
THE JURISPRUDENCE CITED BY THE RESPONDENTS IN THEIR
POSITION PAPER ARE EITHER “MISLEADING”, “INAPPLICABLE”, “NOT ON ALL FOURS WITH
THE FACTS OF THIS CASE”, OR “OBITER DICTA”.
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.
III.
REITERATION OF COMPLAINANT’S URGENT EX PARTE MOTION FOR PRODUCTION,
INSPECTION AND EXAMINATION OF THE “201 FILE” (PERSONNEL RECORD) OF THE
COMPLAINANT.
19. The complainant respectfully reiterates his “URGENT EX PARTE MOTION FOR PRODUCTION,
INSPECTION AND EXAMINATION OF THE “201 FILE”
(PERSONNEL FILE) OF THE COMPLAINANT IN THE POSSESSION OF THE
RESPONDENTS” as stated in Paragraph
32 of his Position Paper:
“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.”
IV.
REVIVAL OF COMPROMISE NEGOTIATION PENDENTE LITE WITHOUT PREJUDICE TO THE CONTINUATION OF THE
PROCEEDINGS.
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.
V.
SUPPLEMENTAL SUBMISSION OF RECEIPTS FOR THE LEGAL FEES
INCURRED BY THE COMPLAINANT FOR THE PREPARATION OF THE PLEADINGS.
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.
22.1.
He is NOT
GUILY of SERIOUS
MISCONDUCT, WILLFUL
DISOBEDIENCE, 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).
VII.
ADDENDUM/MISCELLANEOUS
23.
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.
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.
VIII.
PRAYER
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
Complainant
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].
