(Case
Caption)
MEMORANDUM ON APPEAL
The
COMPLAINANT-APPELLANT x x x (“xxx”), pro se, by way of APPEAL, respectfully
states:
I.
INTRODUCTION.
- The subject matter of this Memorandum on Appeal is the DECISION, dated December 29, 2016, of Labor Arbiter xxx, DISMISSING the
Complaint of the herein Complainant-Appellant xxx for alleged lack of merit,
the duplicate original copy of which
is attached as Annex “A” hereof, for
the record.
II.
MATERIAL
DATES. – The herein appellant xxx received
on January 30, 2017, a copy via registered mail of the questioned Decision,
dated December 29, 2016, hence, his tenth
day to file this Memorandum on Appeal shall expire on February 9, 2017, as per Rule VI of the 2011 NLRC Rules of
Procedure.
III.
ADOPTION
CLAUSE. -
For the record and for convenience, the
herein appellant XXX hereby adopts
into this Memorandum on Appeal, by incorporation and reference, all the
allegations and arguments stated in --- as well as all the supporting documents
annexed to --- (a) his MAIN POSITION PAPER filed with the Arbiter a qu0 on
November 29, 2016 and (b) his REPLY POSITION PAPER filed with the same Arbiter
on December 9, 2016.
IV.
ISSUES. –
The herein appellant respectfully submits that the Labor Arbiter a quo abused her discretion and committed serious errors of fact and law which, if not corrected, would cause
grave or irreparable damage or injury to
the appellant:
(a)
In finding that the appellant was:
·
NOT CONSTRUCTIVELY DISMISSED,
·
NOT ENTITLED TO BACKWAGES AND REINSTATEMENT,
·
NOT ENTITLED TO UNPAID WAGES, SERVICE
INCENTIVE LEAVE PAY AND 13TH MONTH PAY, and
·
NOT ENTITLED TO MORAL AND EXEMPLARY DAMAGES
AND ATTORNEY’S FEES.
(b)
In neglecting to resolve the following
additional prayers of the appellant in his position paper and reply-position
paper:
·
RECEIVABLES of
the appellant representing salaries and other benefits due him in the amount of
P61,166.99 as discussed in the
Position Paper and Reply Position Paper of the appellant;
·
Unpaid
salaries equivalent to the 15-minute
daily staff briefings for two and one-half years (January 7, 2013 to May 8,
2015) as discussed in the body of this Memorandum on Appeal.
(c)
In ruling that the herein appellant was not
entitled to a copy of his CERTIFICATE OF
EMPLOYMENT, as a matter of right for his personal record, whether or not he wins or he loses in the
case, because the such a refusal by management was a valid exercise of “management prerogative”.
(d)
In finding:
·
That the handwritten and rush “resignation
letter” of the appellant was freely, voluntarily, and intelligently written and
submitted by him without direct or indirect (or gross and subtle) coercion,
duress, intimidation, threat, or, at the least, abuse of moral ascendancy as
superiors representing top management.
·
That the appellant’s alleged act of
“expressing his gratitude” to management in his handwritten and rush letter was
a sign of voluntariness, intelligence and freedom in resigning.
·
That the letters/certifications of
respondents’ belated two witnesses, namely, xxx and xxx, were credible despite
the fact that the said letters/certifications were not executed by the said
witnesses under oath, that the said two witnesses did not appear in person
before the Arbiter to affirm their unnotarized letters/certifications, and that the appellant was not provided by the
Arbiter a fair opportunity to rebut and controvert the same by way of a
Rejoinder-Position Paper, as an act of good and sound quasi-judicial
discretion.
·
That Management was authorized to deduct the
bonuses the appellant had received by reason of his alleged “voluntary resignation”.
V.
DISCUSSION.
On January 7, 2013, the appellant was hired
by the respondents as Senior Pit Supervisor. 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.
His latest monthly salary amounted to P85,431.90/month (as of
May 8, 2015). 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 (Xxx, 17 years old [2015], student of xxx University, BS
Psychology).
f.
Life insurance – with a face value of P280,000.00.
In a Letter, dated January 28, 2014, issued
by Mr. 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.
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 as required by the Labor Code.
TARDINESS.
The appellant was imposed the following
penalties for TARDINESS: 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 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). 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). On May 7-9, 2014 he was SUSPENDED FOR THREE DAYS. He was not
given a copy of the suspension notice.
On July 13-18, 2014 he was SUSPENDED FOR SIX DAYS. Again, he was not
given a copy of the suspension notice.
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).
TO REPEAT: On March 15, 2014, a WARNING was
annotated by the Pit Manager in the TEAM TRACK
(called by the respondents as the “STAFF DIARY”) of the complainant. 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. On
May 7-9, 2014 he was SUSPENDED FOR THREE DAYS. 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 Casino 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). After fulfilling his six-day suspension, he was late
three times. 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. 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. Please note
that the so-called TEAM TRACK or STAFF DIARY system of the respondents operated
like a dictatorial, totalitarian and
secret computerized Gestapo Counter-Intelligence System that recorded
alleged violations of employees without
affording them due process of law to contest and controvert the same
before, during or after the recording thereof by supervisors on duty who acted
like mercenary spies in a military camp.
FURTHER, IT SHOULD BE NOTED:
In the span of two years and four months when the appellant worked with the
respondent company, he had a total of eighteen counts of tardiness. As for the absences they referred to by the
respondents, there were covered by his sick leave benefits which are all
documented. The respondents alleged in their position paper that the appellant
had excessive sick leaves. To the knowledge of the appellant, his leaves were
all fair, reasonable, not too many, and were validly documented. As to the alleged poor performance of the
appellant, if that were true, why were no formal administrative cases were
commenced against him? The appellant was suspended two times because of
tardiness. Those suspensions were questionable because he was not aware that he
was being suspended. No proper legal or administrative procedures took place to
justify such alleged or questionable suspensions. He did not receive any formal
notice regarding his alleged suspensions. As to the first twelve counts of
tardiness from March 12, 2013 to February 19, 2014, his first suspension was
imposed when he was late for one time.
His second suspension was imposed after another three counts of tardiness.
Both suspensions were not acknowledged by the appellant in writing for the
reason that no formal notices were given to him. He learned about them only
when one day he reported for work to find out when he tapped his ID Card on the
computer rostering machine (WEBSAM) that he had already been suspended. The
trouble with the staff diary system of the respondent company, on which the
suspensions were based, was that the
entries therein were encoded without his knowledge and without affording him a
fair chance to be heard and rebut the same.
ILLEGAL
DISMISSAL.
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 in the presence of his immediate superior xxx (Gaming Shift Manager)
inside the room of xxx. He was then on duty from 7:00 AM to 3:00 PM. He was
sequestered by xxx inside her room (human resource department). He was threatened and forced by 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 respondent company.
For two hours he was forced to stay
inside the room of the respondent xxx and/or within its immediate premises
inside the HR area near the room of xxx. He was treated like a prisoner. He begged xxx for three days to think about
the former’s order for him to issue immediately on the spot a handwritten
resignation letter. She denied the
request. She forced him to write on the spot a rush 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 formal notice
of decision dismissing him from employment. Only after two hours of forcible
sequestration inside the room of the respondent xxx was he allowed to go home.
TO STRESS: On May 8, 2015, respondent xxx verbally
told the appellant that the latter had
“already been officially terminated by the company due to tardiness”.
Instead of arguing with xxx, the appellant latter begged the former not to terminate him because he had numerous
financial obligations to support his family. Xxx gave the
appellant the “option to resign”
allegedly for the good of the latter’s employment historical records. The
appellant begged Xxx to give him a
chance. She said she would stand firm in her decision to implement the earlier
decision of management dismissing the appellant IF HE WOULD NOT RESIGN. She
gave the appellant two options at that time, i.e., to resign or be terminated pursuant to the earlier decision of
management to dismiss him. Her reason was that two suspensions had already
been imposed on the appellant as of that time.
After almost an hour of verbal
threats by Xxx, the appellant was forced
to obey Xxx’s order for him to resign.
Nonetheless, hoping against hope, the appellant asked Xxx to give him three days to think about her offer of
resignation. Xxx refused. She told the appellant that he should resign
right there and then before his checkout time. Xxx and Xxx Xxx
glanced at each other, stood up, walked out of Xxx’s office, told him to follow
them outside the office, and referred him to an assistant of Xxx who would
assist him in the resignation process. The
identity of the said assistant was NOT XXX, the witness whose unnotarized and
unverified letter/certification was attached to the reply-position paper of the
respondents. It was made to appear that Xxx was the one who processed the
resignation of the appellant when the truth is that he was not. The appellant was not given a chance to
controvert the unverified letter/certification of Xxx which was presented
belatedly by respondents in their reply-position paper.
Further, Xxx Xxx was
not the head of the Gaming Department as noted on page 10 of the decision of
the Arbiter. The head thereof at that time (May 7, 2014) was MS. Xxx. The Notice to Explain was not served on the
appellant then because neither xxx nor Xxx
spoke to the appellant then. No dialogue took place between the appellant and Xxx
took place on May 7,2014 contrary to the allegations of the respondents.
FORCED RESIGNATION LETTER. - The nature and physical character of the
resignation letter of the appellant show that he was forced to make it (handwritten) on the spot or right there and then
(May 8, 2015 before Xxx and Xxx and Xxx’s assistant). The appellant was on
duty at the pit when another supervisor took over the appellant to see the
latter’s shift manager who was standing nearby. The appellant approached him.
The appellant was told to go to Xxx’s office. When the appellant went to Xxx’s
office, he saw Xxx and Xxx already inside the office waiting for him. It was
not true that the appellant had submitted his voluntary resignation letter to Xxx
at her gaming office. The distance of the offices of Xxx and Xxx was about 300
meters. It was not true that Xxx accompanied the appellant to Xxx’s office. Xxx
was already inside the office of Xxx before the appellant arrived there.
Further, the alleged voluntary resignation letter of the appellant was dated and was made effective May 8, 2015 (the very same date when he
was called by Xxx to her office). The appellant was then working on a 7:00
AM to 3:00 PM shift. He was in the middle of his duty when he was forced by Xxx
to make a rush handwritten resignation letter. The resignation letter was handwritten with erasures. If the appellant
was indeed voluntarily resigning, he would have made it a point to make his
resignation letter very formal and
professional in appearance, layout, content, and grammar (that is,
computerized, grammatically correct, and properly reviewed and edited). He
would have made many copies thereof
for transmittal to and acknowledgment by the proper offices which shall process
the same for approval. It was illogical
that his resignation would be made effective on May 8, 2015 when he was still
on duty. Xxx did not let the
appellant go home unless he shall have finished and signed his forced and rush
handwritten resignation letter. His wife (who was also employed with the
respondent company) was then waiting for him for more than two hours outside
the xxx premises. She had just finished her own shift of 6:00am to 2:00pm. His
wife had no idea of what the appellant was going through then because the latter
was not allowed to get his mobile phone from the locker area so that he could
call his wife.
Further, xxx’s statement that he assisted him thru the
clearance process and exit interview was
false and fabricated. He was NOT the
person who was asked by Xxx to go with and assist the appellant to write his
forced and rush handwritten resignation letter. He was NOT the person who was
asked to assist the appellant during the clearance process and during the
alleged exit interview. Despite the
stress he was undergoing then, the appellant was sure the assistant who
processed his forced resignation was not Xxx. The alleged exit interview form
was falsified by Xxx with the knowledge and consent of the respondents. The
truth of the matter is that the appellant was told to sign two blank forms. It
was filled up by Xxx, not by the appellant. The difference in their
handwritings is obvious based on the case record. The part of the exit
interview form re: the “reason for leaving” was not filled up by the appellant
but by Xxx whose penmanship on the said form was obvious. The appellant did not go through any formal exit interview and
clearance process.
The appellant
emphasizes that Xxx’s statement that the appellant submitted his resignation
letter to her was false and a lie. Xxx
alleged that the appellant submitted his resignation letter to her at her
gaming office and that she accompanied him to Xxx’s office. It is a lie. The truth of the matter was
that the appellant went straight to Xxx’s office from the Casino floor area.
When he arrived at Xxx’s office, Xxx was already there talking to Xxx while
they were waiting for him. Xxx stayed there until the appellant had finished
the whole stressful process and until the appellant was given permission to go
home by Xxx.
As instructed by Xxx, after three days, the appellant
returned to her office (i.e., May 11,
2015 or thereabout) to turn over to her staff a copy of his TMCGB (employees
manual), CASINO GAMING MANUAL, and his health insurance card. (He was unable to turn over to the HR staff
the health insurance card for his child Bill
Cameron Xxx because the complainant had misplaced it at that time. Hence,
he 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. He was told by the HR staff to call from the said COMPENBEN
staff after three or four months.
THE
MISSING 201 FILE OF THE APPELLANT. - THE ARBITER IGNORED THE MOTION OF THE
APPELLANT TO COMPEL RESPONDENTS TO PRODUCE THE SAME BY WAY OF DISCOVERY IN THE
INTEREST OF TRANSPARECNY, TRUTH AND JUSTICE. - The appellant had previously 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 main
position paper. The HR staff 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, the said staff did not state. Only the birth certificate and transcripts
of schools records were given to the complainant. The appellant had
expressly moved in this main position paper and in his reply-position paper
before the Arbiter a quo to compel
the respondents to produce his 201 File
but the Arbiter ignored the two formal motions, thus, contributing
to the injurious and malicious secrecy of the respondents. (Note: The respondents did not volunteer to
produce the 201 File of the appellant in their main and reply position papers).
RESPONDENTS
VIOLATED THEIR OWN RULES OF PROCEDURE AS CONTAINED IN ARTICLE X of the TMCGB WHICH
CONTAINED 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 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.
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.
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.
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 resorted 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 HR
Business Partner (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.
TO STRESS: After a six days suspension, the complainant was abruptly and illegal
DISMISSED on May 8, 2015. 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 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). 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). On May 7-9, 2014 he was SUSPENDED FOR THREE DAYS. On July 13-18,
2014 he was SUSPENDED FOR SIX DAYS. 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.
RIGHT TO DUE PROCESS OF LAW, RIGHT TO
COUNSEL, AND RIGHT TO SECURITY OF TENURE.---
As discussed above, on May
8, 2015 at about 2:00 PM to 4:00 PM the complainant was told by Xxx that
the appellant had been dismissed by management for tardiness. To make it appear
that Xxx was doing the appellant some good (i.e.,
in order not to blemish the employment record of the appellant), the former
pressured the appellant to submit to her on the spot a rush handwritten
resignation letter. Otherwise, Xxx would enforce the bygone decision of
management to dismiss him. The appellant’s immediate superior Xxx
(Gaming Shift Manager) was present inside the room of Xxx (HRD). The appellant was
then on duty from 7:00 AM to 3:00 PM. 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 rights to due process of law
and to counsel were violated.
Article
277 of the Labor Code provides for the DUE PROCESS OF LAW:
“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).”
FURTHER, Article 279 of the Code provides for
the SECURITY OF TENURE of a worker:
“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).”
FURTHERMORE, Article 282 of the Code speaks
of the just grounds to dismiss an employee.
“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 xx x.”
TO
EMPHASIZE: The complainant is guilty merely of the MINOR OFFENSE OF TARDINESS. He
is NOT
GUILTY 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).
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 2015 - P1,210.32;
·
Service
charge - May 2015 - P2,993.13;
·
Refundable
income tax - P25,189.07.
The
total of the foregoing items was P53,357.60.
After illegally dismissing the appellant, the
respondent company unjustly and without legal basis DEDUCTED the amount of P88,417.11
from his receivables, broken down as follows:
·
Phase 1A bonus - P30,889.11; and
·
Loyalty bonus = P57,528.00.
UNPAID OFFICIAL TIME (15 MINUTES DAILY BRIEFINGS BEFORE COMMENCING
WORK). – Further, the appellant asks: Why did the Arbiter a quo fail to discuss and resolve his
prayer to be paid his salaries for the time spend for the daily fifteen minutes
early check-in time (for briefing purposes, etc.). They ought to be considered
as overtime worked or regular time worked. As discussed in his position papers
filed below, a miscellaneous cause of action that the appellant had presented
for resolution was 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.
CERTIFICATE OF EMPLOYMENT. - Nothing in the Labor Code and in existing
jurisprudence states that if a worker loses his labor case, he is not entitled at all to be issued a
certificate of employment showing his employment history for his record and
reference. Nothing in the law and existing jurisprudence commands that if a worker loses his labor case, the
management has the absolute power to
withhold his certificate of employment showing his employment history for
his record and reference. The Arbiter a
quo gravely erred in concluding that the issuance of such a certificate of
employment, whether or not a complaining
worker wins or loses, is a matter of management
prerogative. No Labor Code provision and no jurisprudence were cited to
prove such an unjust and anti-labor conclusion. It is the submission of the appellant that he is entitled to a
certificate of employment showing is employment history for his record and
reference whether or not he wins or loses his labor case.
VI.
PRAYER.
WHEREFORE,
premises considered, it is respectfully prayed:
1.
That the appealed DECISION, dated December
29, 2016, be REVERSED AND SET ASIDE;
2.
That the appellant be declared as having been
ILLEGALLY DISMISSED by the appellees.
3.
That the appellees be ordered to pay or issue
to the appellant, as the case may be the following amounts:
(a)
BACKWAGES
from the date of his illegal dismissal on May 8, 2015 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)
RECEIVABLES of
the appellant XXX representing salaries and other benefits due him in the
amount of P61,166.99 as discussed in
the Position Paper and Reply Position Paper of the appellant;
(e)
Attorney’s
Fees equivalent to Ten Percent (10%) of the damages awarded.
(f)
Unpaid
salaries equivalent to the 15-minute
daily staff briefings for two and one-half years (January 7, 2013 to May 8,
2015) as discussed in the body of this Memorandum on Appeal.
4.
That the CERTIFICATE
OF EMPLOYMENT of the appellant XXX be issued to him, as a matter of right and for his personal record, whether or not he is reinstated or whether
or not this appeal is granted.
FINALLY,
the appellant respectfully pays for such and other reliefs as may be deemed
just and equitable in the premises.
Las Pinas City, February 1, 2017.
XXX
Complainant-Appellant
X x x x
VERIFICATION
AND
ANTI-FORUM SHOPPING CERTIFICATION
I,
XXX, of legal age, married, Filipino,
and with postal address at x x x x, under oath, depose:
That I am the complainant-appellant
in the foregoing Memorandum of Appeal; 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 and based on authentic records.
Further,
pursuant to Rule 7 of the 1997 Rules of Civil Procedure in relation to the 2011
NLRC Rules of Procedure, I hereby certify that I have not heretofore commenced
any other action or proceeding involving the same issues in the Supreme Court,
the Court of Appeals, or any other tribunal or agency; that to the best of my
knowledge, no such action or proceeding is pending in the Supreme Court, the
Court
of Appeals, or any other tribunal or agency;
and that if I should hereafter learn that other similar or related actions or
proceedings has been filed or is pending before the Supreme Court, the Court of
Appeals, or any other tribunal or agency, I undertake to report that fact
within five (5) days therefrom to this Commission.
Las
Pinas City, February 7, 2017.
X X X X
Affiant/Appellant
SUBSCRIBED AND SWORN TO BEFORE ME in ___________
on _____________________, affiant showing his competent proof of identity as
follows: LTO Driver’s License No. x x x expiring on x x x x.
Notary
Public
Doc. No.
Page No.
Book No.
Series of 2017.
Copy Furnished:
Atty.
xxx
Atty.
xxx
Counsel for Respondents-Appellees
X x x x x
Reg.
Rec. No.
Date PO
EXPLANATION
A
copy of this pledging is served on the adverse counsel via registered mail instead of via personal service due to the
urgency of filing the same and due to the distance of the law office address of
the adverse counsel.
X
X X X
AFFIDAVIT OF SERVICE
I,
x x x XXX, of legal age, married,
Filipino, and with postal address at x x x x, under oath, depose:
That I am the complainant-appellant
in the foregoing Memorandum of Appeal;
That on _______________ I served a
copy of the foregoing Memorandum on Appeal on the adverse counsel in the
instant case via registered mail with
return card, to wit:
Atty.
xxx
Atty.
xxx
Counsel for Respondents
X x x x x x
Reg. Rec. No. ______________________
Date____________ PO ____________
That
the original of the aforementioned registry receipt is attached above, opposite the names of
the adverse counsel to prove the foregoing statement.
That
I am executing this affidavit of service as per Rule VI (Appeals) of the NLRC Rules of Procedure to prove the fact of service of a copy of the
foregoing Memorandum on Appeal on the aforementioned adverse counsel.
Las
Pinas City, February ____, 2017.
X X
X X
Complainant-Appellant
X x x xx
SUBSCRIBED AND SWORN TO BEFORE ME in
___________ on _____________________, affiant showing his competent proof of
identity as follows: LTO Driver’s License
No. x x xx expiring on x x xx.
Notary
Public
Doc. No.
Page No.
Book No.
Series of 2017
