IN THE MATTER OF THE NOTICE TO EXPLAIN
AND NOTICE OF DISCIPLINARY CONFERENCE,
DATED JUNE 9, 2017, ADDRESSED TO THE
RESPONDENT XXX AND
RECEIVED BY THE RESPONDENT ON JUNE 9, 2017.
Case No. __
Xxx xxxx xxxx,
Respondent.
x----------------------------------x
EXPLANATION WITH OMNIBUS MOTION
The Respondent xxx, assisted by counsel, respectfully states:
1. The respondent is employed as a “Workforce Offshore Scheduling Analyst” of this Company. He is assigned at the xxx City site office thereof.
He has worked with the Company in 2008, 2011 to 2012, 2012-2014, and 2014 up to the present time. He has occupied various positions in the Company.
Attached is a copy of his Work History with the Company, marked as Annex “A’ hereof.
2. On June 9, 2017, after midnight, he was served by the Company a copy of a Letter, dated June 9, 2017, issued by Mr. xxx, Human Resource Site Head.
The letter charged the respondent with alleged violations of Section I.F.5, Section I.F.14, Paragraph “A” of Section I, and Paragraph “C” of Section I, of the xxx Employee Action Form (EAF) – Employee Guide.
His fifth day to file his Explanation, as required by the letter, would expire on June 14, 2017. Hence, this Explanation with Omnibus Motion.
Section I.F.5 refers to fraud. The respondent is being charged of carrying out “multiple fraudulent transactions” using company equipment and resources. The particulars thereof, i.e., incidents, chronologies, parties involved, and others, are not alleged in the letter.
Section I.F.14 likewise refers to Fraud. The respondent is being charged of divulging his computer ID and password (NT-login credentials). The particulars thereof, i.e., incidents, chronologies, parties involved, and others, are not alleged in the letter.
Section I, Paragraph “A” refers to Falsification. The letter did not specify the alleged violative acts of the respondent with respect to Subparagraphs “1” to “6” thereof (which includes “falsifying…”, “giving false testimony…”, “submitting false information…”. “concealing information…”, “opening propriety or confidential documents…”, and “failure to submit on time…”). The particulars thereof, i.e., incidents, chronologies, parties involved, and others, are not alleged in the letter.
Section I, Paragraph “C” refers to Breach of Company Trust. It did not specify how the respondent violated Subparagraphs “1” and “2” thereof (which apparently applies to a managerial employee, which the respondent is not). The particulars thereof, i.e., incidents, chronologies, parties involved, and others, are not alleged in the letter.
The letter referred to an alleged “report from the Global Incident Response and Investigation Team”. The respondent has not been officially furnished a copy of the report. He is entitled to controvert the same in the interest of justice. The particulars thereof, i.e., incidents, chronologies, parties involved, and others, are not alleged in the letter.
3. The letter referred to an alleged “Preliminary Interview” (which was held on June 8, 2017 shift). The respondent has not been officially furnished a copy of the Minutes or Transcript of the Preliminary Interview. The letter alleged that the respondent had admitted during the preliminary interview his alleged disclosure of his NT login credentials.
Please note that during the preliminary interview (June 8 2017 shift), seven officers of the company attended to interrogate the respondent. It lasted for about one hour.
He was not assisted by a legal counsel/adviser during the interview. Neither was he informed of his right to counsel at that stage of the disciplinary process.
He was exposed to psychological pressures to make certain adverse statements during the interview.
The interview was recorded by a recording machine under the control of the Human Resource officers present. The respondent was not officially provided a copy of the recorded video and its transcripts.
He recalls that he was made to sign a document amounting to an admission during the interview without the assistance of counsel.
4. The respondent was placed under Preventive Suspension for a period of thirty days counted from June 9, 2017.
The two reasons given for the preventive suspension were that the respondent allegedly occupies a “sensitive position” and that there is need to prevent alleged “further loss of revenue”.
Please note that the main tasks of the respondent are (a) to analyze clients’ forecasts and (b) to suggest schedules and headcounts needed for an account. He also approves or disapproves vacation leave applications.
He does not handle cash and other liquid assets of the company. He is not a bonded employee of the company.
His tasks are not “sensitive”. He does not create the risks of “loss of revenue”.
There is no good reason for the order of preventive suspension. It should be lifted in the interest of justice.
5. The letter set the Disciplinary Conference of this administrative case on June 14, 2017, Wednesday, at 7:00 AM at the Human Resource Office of the Company in Xxx City. The letter allowed the respondent to bring a Support Person or Adviser during the proceedings.
6. There is no showing that the Company observed the DUE PROCESS rules (Corrective Action Process and Representation in “every stage”) stated in the Employee Guide. The Process includes the following steps:
(a) Incident Report. – It is supposed to be issued to the respondent by his immediate superior. The respondent has not received a copy thereof.
(b) Corrective Actions. – It is the formal recording of the details of the alleged violations of the respondent in his CCMS Profile. It must be issued “early and quickly”.
It consists of the following steps:
(a) Preliminary Assessment. – This was supposed to be done by the superior of the respondent. The respondent has not been furnished a copy of the Preliminary Assessment Report, if any.
(b) Corrective Action Process. – This consists of the following steps:
(1) The filling out of the CCMS Incident Report by the superior of the respondent. The respondent was not furnished a copy thereof.
(2) The creation of the EAF by the superior of the respondent. The CCMS Incident Report is supposed to be attached to the EAF. The respondent has not been furnished copies of both documents.
(3) Disciplinary Meeting. – This has been set by the Company on June 14, 2017 at 7:00 AM. The respondent shall attend the same.
7. The respondent is a family man. He has a wife and two minor children to support and maintain.
8. The respondent is entitled to his constitutional and human rights to DUE PROCESS OF LAW, EQUAL PROTECTION OF THE LAW, AND SECURITY OF TENURE.
9. The burden of proof in a labor case or an administrative case is upon the Employer, not the Employee. A party who initiates a complaint or alleges an affirmative fact has the burden of proof.
10. As per Article 282 of the Labor Code (not Article 297 as erroneously cited in the letter), an employer may terminate an employment for any of the following just 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 representative; and
(e) Other causes analogous to the foregoing.
The BURDEN OF PROOF belongs to the Employer.
Article 3 of the Labor Code provides that the State shall afford protection to labor. The State shall assure the rights of workers to security of tenure.
Article 4 of the Labor Code provides that all doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.
It should be noted that as per Article 279 (Security of Tenure) of the Code, the employer shall not terminate the services of an employee except for a just cause. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and to his backwages computed from the time his compensation was withheld from him up to time of his actual reinstatement. (As amended by RA 6715)
WHEREFORE, premises considered, it is respectfully prayed:
1. That a BILL OF PARTICULARS of the alleged violations of the respondent be issued to him during the hearing set on June 14, 2017 at 7:00 AM or thereabout to enable him to scrutinize and controvert the same pursuant to his constitutional rights to DUE PROCESS OF LAW, EQUAL PROTECTION OF THE LAW, and SECURITY OF TENURE and in the interest of justice;
2. That the respondent be furnished copies of all the documents and reports relevant to this case during the hearing set on June 14, 2017 at 7:00 AM or thereabout to enable him to scrutinize and controvert the same pursuant to his constitutional rights to DUE PROCESS OF LAW, EQUAL PROTECTION OF THE LAW, and SECURITY OF TENURE and in the interest of justice;
3. That the upon receipt of the Bill of Particulars and the documents and reports referred to above, the respondent be given ten days to file his POSITION PAPER to rebut and controvert the same to enable him to scrutinize and controvert the charges, pursuant to his constitutional rights to DUE PROCESS OF LAW, EQUAL PROTECTION OF THE LAW, and SECURITY OF TENURE and in the interest of justice;
4. That pending the in-house litigation of this case, the Preventive Suspension of the respondent be LIFTED, there being no legal and factual basis therefor;
FURTHER, by way of an extrajudicial settlement of this case and without admission of guilt on the part of the respondent and solely for the purpose of achieving peace of mind, the respondent hereby offers to VOLUNTARILY RESIGN, provided, the Company issues to him the following: (a) Certificate of Employment (COE); (b) his receivable due and earned benefits, e.g., unpaid salaries, unpaid overtime pay, unpaid holiday pay, proportionate 13th month pay, and others; and (c) the withdrawal or dropping of this administrative case.
FURTHERMORE, the respondent prays for such and other reliefs as may be deemed just and equitable in the premises.
Xxx City, June 13, 2017.
XXX XXX
Respondent
Assisted by:
LASERNA CUEVA-MERCADER
LAW OFFICES
Counsel for Respondent
