Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch
Cordillera Administrative Region
Baguio City

ALFRED ALEX F. APO, NLRC Case no. RAB-CAR 06-

Complainant, 0211-18
LA Hon. MALCOLM BACUSO
-versus-

BEIJING BANGNISHUO INTERNET

EDUCTION TECHNOLOGY LIMITED
-PHILIPPINES; and NORHAINE DADULA,
Senior Operations Manager
Respondents.
x-----------------------------------------x

POSITION PAPER for RESPONDENTS

With all due respect to the Honorable Arbitration Branch

Respondents, by and through the undersigned counsel, most

respectfully submits this POSITION PAPER and in support hereof state:

PREFATORY STATEMENT

Withal, the law, in protecting the rights of the

laborers, authorizes neither oppression nor self-destruction
of the employer. While the Constitution is committed to
the policy of social justice and the protection of the
working class, it should not be supposed that every labor
dispute will be automatically decided in favor of labor. The
management also has its own rights, as such, are entitled
to respect and enforcement in the interest of simple fair
play. Out of its concern for those with less privileges in
life, the Supreme Court has inclined more often than not
toward the worker and upheld his cause in his conflicts
with the employer. Such favoritism, however, has not
blinded the Court to the rule that justice is in every case

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 for the deserving, to be dispensed in the light of the
established facts and applicable law and doctrine. 1

THE PARTIES

Complainant ALFRED ALEX F. APO, is of legal age, a Filipino

citizen and a resident of No. 10 Ferguson Road, Brgy. Campo Filipino,
Baguio City.

Respondent BEIJING BANGNISHUO INTERNET EDUCATION

TECHNOLOGY LIMITED-PHILIPPINES (Corporation for Brevity) is a
branch of a foreign corporation duly licensed to do business in the
Philippines with principal address at V-1142, Abanao Square, Abanao
Street, Baguio City; respondent NORHAINE DADULA, as Senior
Operations Manager, is being sued in her official capacity. They may
be served with summons and other processes of the Honorable
Commission, for this case only, through their counsel at Lidua, Daping
and Partners Law Office located at Suite 402, Pine Valley Plaza, Km. 4,
Pico, La Trinidad, Benguet.

STATEMENT OF THE FACTS AND OF THE CASE

1. Complainant was hired by the respondents on September 5,

2016 to work as an online english teacher with a base monthly
salary of EIGHT THOUSAND NINE HUNDRED SIXTY SIX PESOS
AND FIFTY CENTAVOS (Php8,966.50) Pesos per month, exclusive
of benefits and incentives. A copy of his employment contract is
hereto attached as ANNEX “A”;

2. On January 11, 2017, the company issued a memorandum

providing for conditions on moving teachers to awaiting status.
This was to address numerous complaints about teacher’s
unexpected absences. A copy is hereto attached as ANNEX “B”;
3. On March 14, 2017, the company issued another memorandum
clarifying certain provisions on the conditions on moving
1
Mercury Drug Corporation v. National Labor Relations Commission, G.R. No. 75662, September 15,
1989, 177 SCRA 580, 586-587

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 teachers to awaiting status. This was duly signed and received
by all employees. A copy is hereto attached as ANNEX “C”;

4. On May 25, 2018 to May 31, 2018, the complainant failed to

report to work prompting numerous complaints and transfer of
classes from their students and clients. Screen captures of the
complaints and transfers are hereto attached as ANNEX “D”;

2. On May 29, 2018, in accordance with the memorandum on

transfer of status and to avoid further complaints from clients,
the complainant was set to “awaiting status”;

3. Upon returning to work on June 01, 2018, Mr. Apo was notified
of his new status from the teacher’s page. This is a system used
internally by the company.

4. Mr. Apo approached the Human Resource Department regarding

this concern and a meeting was scheduled on June 08, 2018.
However, on June 6, 2018, two days before the date set to
address his concerns, the complainant already filed a case with
this Honorable Office.

ISSUES

The respondents respectfully present the following issues to the

Honorable Labor Arbiter for resolution:

A. WHETHER OR NOT the complainant was constructively

dismissed;
B. WHETHER OR NOT the complainant has a cause of action
against the respondents.

DISCUSSION AND ARGUMENTS

NO CONSTRUCTIVE DISMISSAL

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 The complainant postulates the existence of constructive
dismissal by virtue of his change in teacher’s status form “On-the-job
status” to “Awaiting status”. Respectfully, such contention is misplaced
and unfounded.

The Supreme Court has explained and enumerated the indices of

constructive dismissal in the case of Morales vs. Harbour Center Port
Terminal, Inc.2, thus:

“Constructive dismissal exists where there is cessation of

work because “continued employment is rendered
impossible, unreasonable or unlikely, as an offer involving
a demotion in rank or a diminution in pay” and other
benefits. Aptly called a dismissal in disguise or an act
amounting to dismissal but made to appear as if it were
not, constructive dismissal may, likewise, exist if an act of
clear discrimination, insensibility, or disdain by an
employer becomes so unbearable on the part of the
employee that it could foreclose any choice by him except
to forego his continued employment.”

As will be herein explained, none of the above-cited indices

exists in this case.

“continued
employment is
rendered impossible,
unreasonable or
unlikely, as an offer
involving a demotion in
rank or a diminution in
pay” and other
benefits.”

2
G.R. No. 174208, January 25, 2012

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 Before going any further, it is imperative to first discuss the
nature and consequences of a teacher’s “On-the-job status” and
“Awaiting status”. In terms of salary and all benefits under the
employment contract, including performance based incentives, the two
teacher’s status are actually the same. The only distinction being that
the teacher placed in “awaiting status” would only be allowed to
handle classes that were not attended to by the “on-the-job” teachers.
Meaning, the teacher in “awaiting status” would not be able to get new
student slots and would only be handling classes of teachers who are
absent. Still, between the two status of teachers, their salary and
benefits remain the same since they are paid on a fixed rate
regardless of number of students or classes attended.

The conditions in transferring a teacher from “on-the-job” status

to “awaiting” status is provided under memorandum HRD0027-2017-
03-143 of the company as follows:

“Below are the different conditions on transferring a teacher

from On the Job Status to Awaiting Status:

1. If the teacher incurred 5 consecutive absences with or without

call-in

OR

2. If the teacher has gained 2-3 consecutive/non-consecutive

days of absences in a week (and she/he has incurred) for 3
weeks within a month regardless of reason.”

As can be inferred in the memorandum, the change of status of

company teachers is a policy that is imposed based on conditions that
are premised on the concerned teacher’s absences. This, for sound
practical considerations. If a teacher absents himself/herself for five
consecutive days and remain in “on-the-job” status, the teacher will
remain bookable online to students despite the fact that said teacher is

3
ANNEX “C”

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already absent and could actually remain absent in the succeeding
days. The first condition on the memorandum was specifically made in
order to address this concern as numerous complaints from clients
abroad have been made due to such instances of teacher’s absences
and students going online without an attending teacher on the other
end. The second condition in the memorandum, on the other hand,
was intended as a corrective measure to erring teachers who evade
the policy by avoiding consecutive absences, yet, accumulate
numerous absences within a month.

To reiterate, the salary including benefits and incentives remain

the same for the teacher regardless of status as said monetary
considerations are either fixed or based on criteria totally independent
of teacher’s status. To illustrate, the complainant earned a total of
Php11,743.21 in the month of January this year. During that time, he
was in “on-the-job” status. In the months of June and July when he
was already on “awaiting” status, he earned Php12,633.26 and
Php13,639.18, respectively. Factually, the complainant actually earned
even more for the past two months that he was in “awaiting” status
than when he was “on-the-job” in January.

For reference, the payroll report for the months January to July
of herein complainant is hereto attached as ANNEX “E”.

Aside from the absence of any diminution in pay, there is neither

any demotion in rank since, aside from the head teacher, all teaching
personnel are actually the same. Thus, no actual rank to speak of
aside from the rankings in evaluation in giving of incentives, which is
made regardless of status. So that, demotion is actually, practically
not possible with the company setup.

To explain further, the teacher’s change in status is a company

policy made to address issues regarding complaints from their clients
specifically the absences of teachers and the subsequent transfer of
classes by the students. As a corrective measure, the teacher is placed
in a status where complaints against them would, at the very least be

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minimized, since their exposure to regular classes would be limited. In
doing so, the company likewise avoids the risk of losing clients while
still maintaining all of their employees. After all, the prerogative to
determine the place or station where an employee is best qualified to
serve the interests of the company belongs to the employer. All of this,
it cannot be over emphasized, the company undertakes without any
diminution in pay or demotion in rank on the part of the employees,
whatsoever.

Clearly now, as there is no demotion in rank or any diminution in

pay or any other benefits, there can be no basis to claim that
continued employment is rendered impossible, unreasonable or
unlikely.

an act of clear
discrimination,
insensibility, or disdain
by an employer
becomes so unbearable
on the part of the
employee that it could
foreclose any choice by
him except to forego
his continued
employment

Status change within the company is a policy meant to address

indiscriminate absences from the employees. It is a general policy
applicable to all employees which would not even be imposed if not
transgressed.

The complainant cannot therefore claim discrimination,

insensibility or disdain since the policy applies to all employees, the
imposition of which may or may not even arise depending on actions
or inactions of the employees themselves. Thus, no single employee

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can claim personal distinction as to being favored or not favored by
the policy.

Moreover, as a teacher’s change in status is, as discussed above,

dependent and a consequence of the employee’s conduct himself, the
corresponding subsequent change or return to status would likewise
depend upon him as well. In the letter of change of status dated June
1, 2018 (A copy is hereto attached as ANNEX “F”), the guidelines for a
return to “on-the-job” status was even expressly provided for the
complainant. Veritably, like any policy involving judgment and
discretion, a status change may even be appropriately challenged by
an employee through his Head Teacher or Team Leader. As a matter of
fact, a meeting with the Human Resource Department was already
scheduled on June 8, 2018 specifically to address the issue.
Unfortunately, on June 6, 2018, without even awaiting the meeting set
and thereby completely disregarding appropriate company grievance
channels, the complainant already filed a case before this Honorable
Office.

Succinctly, the status of the company teachers is dynamic and

subject to change depending on the teachers themselves. It is not
permanent. And, with exercise of due diligence expected of an
employee, could even be avoided.

Lastly, it bears to note that, to date, the complainant has

remained with the company, has actually continued to report daily,
and has continued to receive all salary, benefits and incentives given
to any other employee. In the case of Gan vs. Galderma Philippines4,
the Supreme Court held that: “The test of constructive dismissal is
whether a reasonable person in the employee's position would have
felt compelled to give up his employment/position under the
circumstances.” If, as the complainant claims and as jurisprudence
defines, that constructive dismissal exists when “an act of clear
discrimination, insensibility, or disdain by an employer becomes so
unbearable on the part of the employee that it could foreclose any

4
G.R. No. 177167, January 17, 2013

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choice by him except to forego his continued employment”, verily, the
actions of the complainant in continuing to report for work, more than
two months from filing of this case, defies all reason.

Respectfully, constructive dismissal does not exist in this case.

NO CAUSE OF ACTION

A cause of action is the act or omission by which a party violates

a right of another. A cause of action exists if the following elements
are present:

(1) a right in favor of the plaintiff by whatever means and under

whatever law it arises or is created;

(2) an obligation on the part of the named defendant to respect or not

to violate such right; and,

(3) an act or omission on the part of such defendant violative of the

right of plaintiff or constituting a breach of the obligation of defendant
to plaintiff for which the latter may maintain an action for recovery of
damages.

As it is respectfully submitted that there is no constructive

dismissal in this case, it follows that the complainant has no cause of
action against herein respondents. The respondents never committed
any act violative of any right of the complainant. In fact, taking into
account the point of contention of the complainant as to his change in
status, the respondents were merely in the exercise of their right to
impose a company policy which has already been in existence for more
than a year and which was duly made known and accepted by all of
the company employees without issue, including the complainant, as
shown in their signatures in the sign off sheet 5 of company
memorandum HRD0027-2017-03-14. In point of fact, the complainant

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Page 3 ANNEX “C”

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accepted and acknowledged the year-old memorandum without any
complaints until it was applicable to him.

The filing of the instant case by the complainant is an

exaggeration and a product of misinformed belief. If at all, the cause
of action for constructive dismissal is premature as he even
disregarded company measures to address the issue. To clarify, his
change of status online was immediately effected after his fifth day of
absence, in accordance with the memorandum, to avoid clients abroad
from booking his name for a class schedule and to further avoid
subsequent complaints due to his unannounced leave. Any justification
he may have had could have been presented had he attended the
meeting specifically set for the purpose. Instead, for whatever ill-
advised reason, the complainant rushed to file this case while
continuing to go to work reaping the generosity of the company which
he now seeks to discredit. Verily, the intention of the complainant is
suspect and reeks of an ulterior motive which should not be given the
least of any consideration.

To conclude, the respondents cite the declaration of the

Honorable Supreme Court in the case of RICARDO PORTUGUEZ vs.
GSIS FAMILY BANK (Comsavings Bank) and THE HON. COURT OF
APPEALS6

“While our laws endeavor to give life to the

constitutional policy on social justice and on the protection
of labor, it does not mean that every labor dispute will be
decided in favor of the workers. The law also recognizes
that management has rights which are also entitled to
respect and enforcement in the interest of fair play.[43]

It should be remembered that the Philippine

Constitution, while inexorably committed towards the
protection of the working class from exploitation and unfair
treatment, nevertheless mandates the policy of social
justice so as to strike a balance between an avowed
predilection for labor, on the one hand, and the

6
G.R. No. 169570, March 2, 2007

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 maintenance of the legal rights of capital, the proverbial
hen that lays the golden egg, on the other. Indeed, we
should not be unmindful of the legal norm that justice is in
every case for the deserving, to be dispensed with in light
of established facts, the applicable law, and existing
jurisprudence.[44]

The presumption in favor of labor cannot defeat the

very purpose for which our labor laws exist: to balance the
conflicting interest of labor and management and to
guaranty that labor and management stand on equal
footing when bargaining in good faith with each other, not
to tilt the scale to favor one over the other.”

PRAYER

WHEREFORE, with greatest respect, it is prayed for to the

Honorable Labor Arbiter to order the Dismissal of the Complaint for
lack of cause of action and utter lack of Merit.
Other reliefs just and equitable under the premises are likewise
prayed for.
La Trinidad Benguet for Baguio City, Philippines, this 15 th day of
August 2018.

LIDUA, DAPING and PARTNERS LAW OFFICE

Counsel for the Respondents
JB 012, Suite 402, Pine Valley Plaza,
Km. 4, Pico,
La Trinidad, Benguet

By:

ATTY. NELSON TUAZON LIDUA, JR.

Privilege Tax Receipt No. 5450224; 01/03/18
IBP No. 1083725; Baguio-Benguet Chapter
Roll No. 60278; 03/23/12
MCLE Compliance No. IV 0020946; 07/20/13
MCLE Compliance No. V-0008731; 06/19/15

Copy Furnished:

ALFRED ALEX F. APO

Complainant

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