Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

RHIZA MAE SOUISSI,

Complainant,

-versus- NLRC RAB NCR Case No. 07-12206-19

IGT SOLUTIONS, PVT. LTD.,

ARLENE EVANGELISTA and
DEEPAK MENON,
Respondents.
x------------------------------------------
x

POSITION PAPER

Complainant, RHIZA MAE T. SOUISSI, through counsel and

unto the Honorable Commission, most respectfully submits this
Position Paper and respectfully states: THAT - -

I. PREFATORY STATEMENT

1. The Supreme Court reaffirms its concern for the lowly

worker who, often at the mercy of his employers, must look up to the
law for his protection. Fittingly, that law regards him with tenderness
and even favor and always with faith and hope in his capacity to help
in shaping the nation's future. It is error to take him for granted. He
deserves our abiding respect. How society treats him will determine
whether the knife in his hands shall be a caring tool for beauty and
progress or an angry weapon of defiance and revenge. The choice is
obvious, of course. If we cherish him as we should, we must resolve
to lighten "the weight of centuries" of exploitation and disdain that
bends his back but does not bow his head.1

1
Cebu Royal Plant vs. The Honorable Deputy Minister of Labor and Ramon Pilones, G.R. No. L-
58639, August 12, 1987.

1|Page
 2. The 1987 Philippine Constitution, the Philippine Labor
Laws and pertinent jurisprudence guarantee every employee the right
to security of tenure. This textual and the ensuing jurisprudential
commitment to the cause and welfare of the working class proceeded
from the social justice principles of the Constitution that the Court
zealously implements out of its concern for those with less in life.
Thus, the Court will not hesitate to strike down as invalid any
employer act that attempts to undermine workers' tenurial security. All
these the State undertakes under Article 279 (now Article 293) of the
Labor Code which bar an employer from terminating the services of
an employee, except for just or authorized cause and upon
observance of due process.2

3. In this case, the Complainant is a regular employee of

IGT Solutions Pvt. Ltd. having been engaged to perform activities
which are usually necessary or desirable in the usual business or
trade of the employer. Thus, being a regular employee, she is
undoubtedly entitled to security of tenure and the employer cannot
terminate her services except for just or authorized causes as
provided by law.

II. NATURE OF THE CASE

4. The Complainant, Rhiza Mae T. Souissi, filed the present

complaint for constructive dismissal before this Honorable
Commission on 08 July 2019, specifically praying for payment of
corresponding 13th month pay, separation pay, backwages, moral and
exemplary damages and attorney’s fees.

III. THE PARTIES

5. RHIZA MAE SOUISSI (hereafter the “Complainant”) is of

legal age, single, with residential address at 12-C Sampaguita Street,
Gloria 5 Subdivision, Talipapa, Novaliches, Quezon City. For
purposes, however, of the present action, she may be served with
notices, orders, pleadings, motions and other legal processes of this
Honorable Office through her undersigned counsel at the address
hereunder indicated.

6. IGT SOLUTIONS PVT. LTD. (hereafter “Respondent

IGT”) is a corporation engaged in the industry of Business Process
Outsourcing (BPO) with office address at 5/F Polar Center Edsa
corner Shaw Boulevard, Brgy. Wack Wack, Mandaluyong City.
2
Imasen Philippine Manufacturing Corporation vs. Alcon, G.R. No. 194884, 22 October 2014.

2|Page
 7. ARLENE EVANGELISTA (hereafter “Respondent
Evangelista”) is of legal age, married, Filipino and being impleaded in
this case as the Operations Manager (OM) for Sales and
Communication of Respondent IGT and for her malicious as well as
oppressive conduct in constructively dismissing the Complainant.

8. DEEPAK MENON (hereafter “Respondent Deepak”) is of

legal age, an Indian national and being impleaded in this case as the
Senior Manager of the Respondent IGT and for his participation in the
malicious and oppressive constructive dismissal of the Complainant.

IV. STATEMENT OF FACTS

9. On 26 July 2017, the Complainant was hired by the

Respondent IGT as Assistant Manager (AM) for Training 3 with full
remuneration package of Seventy-Two Thousand Five Hundred
Thirty-Eight Pesos (Php 72, 538.00) per month.4

10. As AM for Training, the Complainant reported to the

Training Department and was placed under the Manager for Training,
EDMUND CUARESMA, and the Senior Manager for Training, RIKA
ABRAHAM, from July to September 12, 2017. 5 However, the
Complainant was eventually asked to perform the functions of an AM
for Sales and Communications under the Operations Department 6 as
she was then being billed to client Hoot Holidays without formally
changing her designation.

11. The Complainant persistently requested for the execution

of a new contract specifying her proper designation in accordance
with the functions she was being tasked to perform and outlining the
Key Result Areas (KRAs) for the position of AM for Sales and
Communications.

12. Despite the complainant’s repeated verbal demands and

follow-ups with the Respondent Evangelista, Respondent Deepak
and Edmund Cuaresma, no new employment contract that fits her job
3
A copy of the employment contract dated 19 July 2017 between the Complainant and the
Respondent IGT is hereto attached as Annex “A” and made an integral part hereof.
4
A copy of the Salary Structure with attached Compensation and Benefits issued to Complainant
by the Respondent IGT is hereto attached as Annex “B” and made an integral part hereof.
5
Emails showing the signature of Souissi as AM Training from July to September 12, 2017 are
hereto attached as Annex “C-series”.
6
An email sent by Souissi on September 13, 2017 showing her signature as AM Operations is
hereto attached as Annex “D” and made integral part hereof.

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description for the AM Sales and Communications position was ever
executed.

13. From the time the Complainant was hired by the

Respondent IGT in July 2017 until the filing of the present complaint,
the former rendered services to the latter by faithfully observing and
practicing the standards set out in the Employee Handbook 7
implemented by the Respondent IGT, particularly the Code of
Conduct and Performance Management.

13.1. As a matter of fact, she received bonuses in 2018

and 2019 for her exemplary performance as AM Sales and
Communication.8

14. On 11 March 2019, however, the Complainant was called

by AM HR Joana Nunez and Respondent Evangelista in the glass
room for the issuance of the Performance Enhancement Plan (PEP). 9
Respondent Evangelista asked the Complainant about the AM for
Operations, Dyna Lucero, as she would also be issued a PEP but the
Complainant answered that AM Lucero already left since they took so
long in the board room and she could not wait any longer for them.
Thus, it was only the Complainant who was formally issued a PEP.

15. During the discussion about the PEP, it was explained to

the Complainant that the same was issued because her team as well
as the team of AM Lucero were not able to hit the target since
September 2018 and the sole basis of the PEP was the sales
conversion and not their whole KRA. 10 The Complainant accepted
and signed the PEP11 believing that the same was made in good faith
because she was reassured by Respondent Evangelista that
Respondent IGT issued PEPs for all of them. However, such positive
belief turned into fear and anxiety when Respondent Evangelista told
her to resign on 25 April 2019.

7
A copy of the Employee Handbook released in July 2016 is hereto attached as Annex “E”.
8
Copies of the letters sent to the Complainant dated 07 June 2018 and 07 June 2019 apprising
her that she is awarded performance bonuses for years 2018 and 2019 are hereto attached as
Annex “F” and “F-1”.
9
A copy of the email sent by the HR Department to the Complainant confirming the discussion
about the latter’s enrollment to the PEP is hereto attached as Annex “G”.
10
See KRA for Hoot Operations Assistant Manager hereto attached as Annex “H”.
11
A copy of the PEP issued to the Complainant dated 11 March 2019 is hereto attached as
Annex “I”.

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 16. While smoking and talking about the statistics of the
operations, the following conversation ensued between Respondent
Evangelista and Complainant:

Evangelista: Souissi what’s your plan?

Complainant: Anong plano po?

Evangelista: Plans sa conversion. What will we do? End of

month na.

Complainant: Hindi ko na po alam gagawin. Litung-lito na po

ako.

Evangelista: Souissi, resign! I’m gonna talk to Deepak about

it.

17. The complainant was shocked that her immediate

superior told her to resign. She feared for the well-being of her family
as she is the sole breadwinner for her three (3) minor children and for
her mother.

18. The following day, the Complainant reported the incident

to the Human Resources (HR) Department. 12 Hence, a formal hearing
was conducted on 30 April 2019. 13 During the discussion in the
boardroom with the HR Joana Nunez, Respondent Evangelista
seemed so upset and asked the Complainant why she reported the
incident and what would she get from filing an incident report.
Portions from the minutes of the said formal hearing are quoted as
follows:

“OM Arlene asked Rhiza what she will get from

raising an IR – She (Rhiza) answered I fear that I
might lose my job.

HR JOANA – Asking about the incident last April 25,

2019

OM ARLENE – Impassing Conversation – 25 th Final

Week for Sale Conversion – Fear not to meet the
target. Talked to AMs if they will stay tight. Asked
them what else has to be done but never her intent
12
See the electronic mail sent by the Complainant to HR Joy Calayag dated 26 April 2019 hereto
attached as Annex “J”.
13
See Minutes of the Formal Hearing dated 30 April 2019 signed by the HR and OPS hereto
attached as Annex “K”.

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 of saying for Rhiza to resign. Rhiza telling about
vacation leave going on Europe. How you will go on
VL if the accounts performance is not meeting the
target. Her reservation – Rhiza got scare about the
discussion. She (Arlene) can’t see the discussion
as a resignation. Arlene mentioned you (Rhiza)
could have talk to me instead first then raising an
IR. Rhiza concentrate more on “Matatanggal na
ako”, “Natatakot na ako” I never expected that there
will be an IR. If you feel discomfort, lumayas, ayaw
nyo na just tell it to me.

HR JOANA – Are we able to coach consistently?

OM ARLENE – Yes a bit delayed but there is.

HR JOANA – Both sides got hurt – not just

emotional but both have different recollection.

AM RHIZA – 2017 there was discussion

regarding resignation and last Thursday was
the different discussion and very serious and I
got scared I felt like hurts me.

HR JOANA – Asked and confirmed to Arlene on

how it was said.

OM ARLENE – Admitted she was serious while

telling it to Rhiza about the team performance.
Telling it outright about resignation to Rhiza is not
part of the discussion.

AM RHIZA – “Kung babagsak ako, aalis nalang

ako” telling her towrds to OM Arlene.

OM ARLENE: “Common Discussion” – Said her

apologies to Rhiza – reiterating there was no intent
and she is not serious about resignation.”
(Emphasis and underscoring supplied)

19. Since then, the treatment of Respondent Evangelista

towards the Complainant has become hostile and unpleasant which
adversely affected the latter emotionally and psychologically
considering that they are close friends. Djanisse Toledo, a travel
consultant agent of IGT, narrated how tight their bond was through
her affidavit14, a portion of which is quoted as follows:
14
See Affidavit of Djanisse Toledo dated September 23, 2019 hereto attached as Annex “L”.

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 “OM Arlene and AM Souissi used to be
together all the time as if AM Souissi is OM’s alalay
or assistant, buy things for her and accompany her
to smoke cigarette and other things, but then the
past months I was there I don’t see them together
much.”

20. Mary Antonette Firaque, team leader, also attested to the

foregoing, to wit:

“Agents began asking me as they’ve noticed

that I always accompany OM Arlene on her yosi
breaks for the past months. It was actually odd at
first since I don’t normally go with her as I’m used to
seeing her with Rhiza Mae Souissi. I just then
realized that something was off whenever Arlene
would vent out and ask if Souissi has mentioned
anything to me, which I had no idea about and
Souissi had never discussed or mentioned.” 15

21. After the formal hearing, the Complainant traced back the
foregoing incident from the events that have transpired in IGT during
the first quarter of 2019 (January to March 2019). Admittedly, the
Complainant and her fellow Assistant Manager, Dyna Lucero, whose
scorecard is closely similar with the Complainant 16, have failed the
sales conversion and revenue for the said quarter. However, such
failure was due to circumstances17 which were beyond their control,
to wit:

a. Quarter One is the time of the year where they ideally get
fifty percent (50%) of the businesses through sales
conversion and revenue that are usually high 18 as per
historical data. For the information of the Honorable Labor
Arbiter, Hoot Holidays is a seasonal account;

b. There was a change in CRM from EMP to IGNITE19;

15
See Affidavit of Mary Antonette Furaque dated September 23, 2019 hereto attached as Annex
“M”.
16
See Scorecard from April 2017 to March 2019 hereto attached as Annex “N”.
17
See exchange of emails regarding the issues faced by the Operations during Q1 hereto
attached as Annex “O”.
18
See Annexes “L” and “M”.
19
See Annex “L”.

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 c. Marketing Plans were not as sound and as competitive as
that of 2018;20

d. Hotel availability was also an issue as the allocations

were already concluded;

e. Head count was down to twenty-one (21) because of

attrition and the transfer of some agents to other
accounts;

f. The account seemed to be downsizing;

g. Election season was also conducted in Australia and was

impacting the sales; and

h. There were changes in the commercials starting April

2019. Hence, the Complainant was no longer separately
billed to Hoot Holidays but to IGT already.

22. On 02 May 2019, the Complainant was coached at

around 2:30 in the afternoon by Respondent Evangelista, HR Joana
Nunez and Respondent Deepak. 21 After the coaching, she was told
by Respondent Deepak, “Once you fail, you have to face the
consequences.” The Complainant felt threatened but out of respect
to her superiors, she just smiled, went out politely from the room and
went directly home as the situation was very stressful.

23. On 13 May 2019, Dyna Lucero had a call with Arlene

Evangelista in the glass room. The Complainant was curious and
likewise confused because it is part of their usual work course that
three (3) of them would have a meeting in the glassrom via phone call
every time Arlene is out. On that particular day, however, she was not
included in the meeting.

24. On 14 May 2019, the Complainant had a meeting with HR

Joana informing her that Respondent Evangelista was served a
disciplinary notice due to the 25 April 2019 incident. It was during that
meeting when the Complainant told HR Joana that she was
distressed and informed the same that it was hard for her to work as
the situation already became unbearable and that after the hearing
dated 30 April 2019, Respondent Evangelista has changed her
20
Ibid.
21
See Coaching Log Sheet issued to the Complainant dated 02 May 2019 hereto attached as
Annex “P”.

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behavior and she kept on asking the Complainant to do only coaching
for communications which, as a result, caused the agents to mock the
Complainant, telling her that she might have been demoted already
as evidenced by the affidavit of Djanisse Toledo, 22 to wit:

“There came to a point that we would always

ask AM Souissi to just handle the schedules and
leaves again as well as the spiffs but unfortunately
she was no longer allowed by OM Arlene to handle
those. From May 2019 onwards, she was just doing
coaching on agents, we sometimes mock her that
she’s being demoted from AM (Asst. Manager) to
QA (Quality Analyst)/TL because she just do
coachings and nothing else.”

25. In contrast, the usual duties of the Complainant prior to

the controversy were as follows:

a. Timely dissemination of information on updates from

Sydney;

b. Weekly huddles with team;

c. Coaching and monitoring (PIP Enrollment);

d. Daily, weekly and monthy sales updates (Conversion);

e. Close attendance monitoring;

f. Side by side with agents;

g. Customer Service Training, effective follow-up training,

upsell training, customer journey;

h. Upsell monitoring;

i. Internal CSAT monitoring; and

j. Call/Email and Chat calibration sessions with agents.

22
See Annex “L”.

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 26. On 19 May 2019, the Complainant called HRBP Joy
Calayag crying and informing the latter that she would leave the office
as she could no longer stand how Respondent Evangelista was
treating her.

27. Furthermore, on the same day, since the situation at the

office have become unbearable and continues to affect the
Complainant emotionally and psychologically, she requested
Respondent Evangelista for leave approval but the latter responded
that she would first inform Deepak about her request. This not only
surprised but also confused the Complainant because formerly, all
her leave applications were submitted to and approved by
Respondent Evangelista. This, together with the previous
circumstances made the Complainant believe that she was being
singled out and being put in an unbearable situation so that she
would leave the company.

28. Consequently, the Complainant raised the issue of her

leave request to the General Manager (GM) of HR, Vilma
Villacampa.23 It was only then that the said issue was resolved and
her request for a leave was approved.

29. In the morning of 27 May 2019, the Complainant

attempted to reach out to Respondent Evangelista so that they could
talk about what is happening but was given the cold treatment and
was told to discuss only about the operations.

30. On 28 May 2019, the Complainant had a meeting with HR

Joana raising that her role was being transitioned as she was literally
doing “no work”. She was no longer included in the meetings and
neither was she being informed via email about communications. HR
Joanna asked the Complainant if it would be alright to do a skip level
with Dexter Anog so that her position could be clarified but no such
skip level ever happened.

30.1. In the industry, a skip level is a process of

escalating the issue to the next higher manager if the same
cannot be resolved with the current supervisor or manager.

31. During the meeting, HR Joana also asked the

Complainant to countersign the date of PEP as the date indicated
therein was March 11 instead of March 4. The latter politely declined
23
See email sent by the Complainant to GM Vilma Villacampa dated 19 May 21019 asking for
clarifications about leave approval hereto attached as Annex “Q”.

10 | P a g e
and told the former that said mistake was already raised but they
declined to change the same.

32. On 29 May 2019, there was a communications meeting

with the client, Hoot Holidays, but the Complainant was not included
despite the fact that she was the one who handled Communications
at that time since her functions fit to that of the Assistant Manager for
Sales and Communications.

33. It was only on 30 May 2019 when Respondent

Evangelista informed the Complainant that Dyna Lucero would
handle Sales and Gab would do Communications. The Complainant
asked Respondent Evangelista on what she should do since she was
already stripped of what she was supposed to be doing. The latter
told her that it was better to huddle with client Rachael Geary
everyday regarding the coaching and her findings. These made the
Complainant feel that she was being demoted.

34. Since the situation at work has been causing her

unwarranted stress, the Complainant filed on 31 May 2019 a request
for conciliation and mediation through the Single-Entry Approach
(SEnA) before the NLRC.24

35. On 03 June 2019, the Complainant spoke with the client

Rachael Geary about their sit-down sessions as instructed by
Respondent Evangelista. However, the client replied, “For what?”
The Complainant answered that the same was for communications
and coaching findings. The client bluntly told the Complainant on the
operations floor that she was confused and she better talk to
Respondent Evangelista or Edmund Cuaresma about what was going
on. This was embarrassing for the Complainant as the client clearly
had no idea of what she was talking about. Apparently, Respondent
Evangelista has already made different arrangements with the client.

36. On 12 June 2019, the General Manager of HR, Vilma

Villacampa, and the Vice President of IGT, Sumit Vorha, had a
meeting with the Complainant regarding her request for conciliation
and mediation. Vorha offered the latter to move to M2 Site but she
asked for a period of time within which to consider the offer because
the same appears to be retaliatory considering that she already filed
for conciliation and mediation through SenA. Thereafter, Vorha
informed the Complainant that if the case would push through, she
24
See SEna dated 31 May 2019 hereto attached as Annex “R”.

11 | P a g e
will only be offered money less than what she has to pay for her
lawyer.

37. When Sumit Vorha left, GM Villacampa convinced the

Complainant to take the offer of Vorha that she be transferred to
another site as it would be difficult for her to find a new job since she
is an undergraduate. That “below the belt” statement added up to the
Complainant’s distress as she felt disrespected. In fact, her lack of
diploma was never an issue especially when Respondent IGT hired
her. Hence, there was a manifest intent to degrade her as an implied
retaliatory measure.

38. On 05 July 2019, Joy Calaya and HR Russel attended the

last conference for SEnA. They informed the mediator that they would
guarantee the Complainant’s job but she would be transferred to
another site. The Complainant declined the offer and manifested that
she would push through with filing a complaint against the
Respondent IGT because she felt that she was being constructively
dismissed. Thus, on 08 July 2019, Complainant filed the instant
case.

39. On 17 July 2019, the Complainant had a meeting with GM

Vilma, Respondent Evangelist and Dexter Anog. It was discussed
that she would be put in PEP again to commence in August 2019 as
the previous PEP was null and void.

40. On 22 July 2019, the Complainant wrote a letter to

Respondents Evangelista and Deepak about her intent to resign
because the work environment has become so toxic and hostile
which she could no longer bear. Hence, a meeting in the glass room
was called to discuss the Complainant’s resignation. Present in the
meeting were Respondent Evangelista, HR Joy and the Complainant.
Since Dexter Anog and GM Vilma were not present, Respondent
Evangelista decided to call them over the phone instead. However, it
was only Dexter Anog who answered, telling Respondent Evangelista
to accept the resignation letter without signing the same for the
meantime. Thereafter, the following conversation ensued non-
verbatim:

Respondent Evangelista: Soussi, why are you pointing at

me as the reason why you are filing this resignation letter?

Complainant: I don’t want to make any statement regarding

that. I have a lawyer and I was told not to talk about it.

12 | P a g e
 Repondent Evangelista: Bakit ako? Makukulong ba ako
dito? I have to know.

Complainant: Okay po. I was constrained to file a letter of

resignation after all incidents that happened. I suffered from
depression and anxiety and there was neither action nor
positive changes was made on your behavior towards me.
Hindi mo na ako pinapansin. Hindi mo na ako niyayang mag-
yosi. Tinatanggalan mo na ako ng trabaho. So anong gagawin
ko? Gusto ko pang malaman kung bakit ako lang ang
nabigyan ng PEP? You told me na mabibigyan si Dyna ng
PEP pati ikaw. Pero bakit ako lang?

Respondent Evangelista: It is a management call, Souissi.

All I did was obey and the client will again change
commercials.

Complainant: So ako ang pinakain ninyo sa dragon? Ako ang

pinain ninyo?

Respondent Evengelista: Souissi, inapprove ko ang leave

mo dahil sa mental issue mo. Ako nga may personal problem
pero hindi ako nag-opt mag-file ng leave because of that.

Complainant: Hindi ko naman sinabi na dapat approve niyo

ang leave request ko. You should not have approved my
leave request in the first place if you think na hindi naman
dapat.

Respondent Evangelista: I approved it because it is

mandated by law.

41. As a result of the foregoing circumstances, the

Complainant sought help at Veterans Memorial Hospital. She
consulted with a Psychiatrist and was diagnosed with anxiety and
depression. She was given medication to be taken daily before going
to work.25

41.1. Complainant respectfully reserves the right to

submit the medical abstract and/or certificate as may be
necessary.

25
See prescription attached as Annex “T” and receipts issued by Mercury Drug as Annexes “U
to U-2”, respectively.

13 | P a g e
 42. The Complainant was exposed to a hostile work
environment that has become difficult or uncomfortable for her to
work in. She was left with no other choice but to resign from her job.
Nevertheless, her case does not simply end there. She has to
enforce her rights as an employee, particularly the security of tenure,
as against the respondents who caused her woe and extreme
distress.

43. Hence, this position paper for the complainant.

V. ISSUES

A.

WHETHER OR NOT THE

COMPLAINANT WAS
CONSTRUCTIVELY DISMISSED.

B.

WHETHER OR NOT THE

COMPLAINANT IS ENTITLED TO AN
AWARD OF FULL BACKWAGES AND
13TH MONTH PAY

C.

WHETHER OR NOT THE

COMPLAINANT IS ENTITLED TO
MORAL AND EXEMPLARY DAMAGES
AND ATTORNEY’S FEES.

VI. ARGUMENTS AND DISCUSSION

A. THE COMPLAINANT
WAS CONSTRUCTIVELY
DISMISSED FROM
EMPLOYMENT.

44. While it is true that inherent to the power of control, the

employer is free to regulate, according to his own discretion and
judgment, all aspects of employment including work assignment,

14 | P a g e
working methods, time, place, and manner of work, working
regulations, transfer of employees, work supervision, lay-off workers
and discipline, dismissal and recall of workers, these management
prerogatives are however not absolute. They should be exercised
according to the existing laws.26

45. It is emphatic in labor laws that no worker shall be

dismissed except for a just or authorized cause provided by law and
after due process. The two facets of this legal provision are: (a) the
legality of the act of dismissal; and the legality in the manner of
dismissal. The illegality of the act of dismissal constitutes discharge
without just cause, while illegality in the manner of dismissal is a
dismissal without due process.27

46. Constructive dismissal is a dismissal in disguise.

Constructive dismissal occurs when there is a cessation of work
because continued employment is rendered impossible,
unreasonable or unlikely; when there is a demotion in rank or
diminution in pay or both; or when a clear discrimination,
insensibility, or disdain by an employer becomes unbearable to
the employee.28

47. The law recognizes and resolves this situation in favor of

employees in order to protect their rights and interests from the
coercive acts of the employer. Whereas valid termination by the
employee under Art. 285 of the Labor Code contemplates such act to
be voluntary, an employee who is forced to relinquish the position
held through the employer’s unfair or unreasonable acts is deemed to
have been illegally terminated or discharged, as such the termination
is implied to be involuntary.29

48. The test of constructive dismissal is whether a reasonable

person in the employee’s position would have felt compelled to give
up his position under the circumstances. 30 Thus, an employee is
considered to be constructively dismissed from service if an act of
clear discrimination, insensibility, or disdain by an employer has
become so unbearable to the employee as to him or her with no
option but to forego with his or her continued employment.31 To
26
Imasen Philippine Manufacturing Corporation v. Alcon, G.R. No. 194884, 22 October 2014
27
Shoemart, Inc. v. National Labor Relations Commission, G.R. No. 74229, 11 August 1989
28
Intec Cebu, Inc. v. Court of Appeals, G.R. No. 189851, 22 June 2016
29
Globe Telecom, Inc. v. Florendo-Flores, G.R. No. 150092, 20 October 2003
30
McMer Corporation, Inc. v. National Labor Relations Commission, G.R. No. 193421, 4 June
2014
31
Agcolicol, Jr. v. Casiño, G.R. No. 217732, 15 June 2016

15 | P a g e
simply put, it is an act amounting to dismissal but is made to appear
as if it were not.

49. Accordingly, it must be emphasized that in resolving

claims of constructive dismissal, the initial facts that should be
considered are those related to the events surrounding the
employee’s departure. There is no need to prove the employer’s
specific intent to enforce resignation.

50. It is clear from the statement of facts that the badges of

constructive dismissal are present in this case.

51. The bad faith and malice of the Respondents are evident
in the issuance of the PEP to the Complainant:

a) The PEP was issued because she failed to meet the

target for the sales conversion since September 2018.
However, the Respondents know that the period from
September to December 2018 was off-peak season
when only few avail of the services offered by Hoot
Holiday which is an Australian travel company and a
seasonal account in IGT. Thus, the failure of this metric
is normal and inevitable. The Respondents could not
expect a higher sales conversion during these months.
Clearly, the drop in the sales conversion from
September to December 2018 was due to market
forces beyond the employee’s control and not because
she failed to perform or that she was grossly inefficient.
Otherwise, she could not have passed her overall KPI
for January 2019 as shown in her scorecard 32 if she
indeed failed to meet the target.

b) The PEP was only issued to the Complainant

notwithstanding the similarity of her performance 33 with
the other Assistant Manager for Sales and
Communications, Dyna Lucero, who was not issued a
PEP, more so placed under constructive dismissal. It is
suspicious that despite the fact that both of them failed
to hit the target since September 2018, it is only the
Complainant who was exposed to a hostile
environment. This calls for an in-depth analysis behind
the issuance of PEP to the Complainant whom the

32
See Annex “N”
33
See Annex “N”

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 Respondents intended to terminate without making it
appear that the former would be illegally dismissed.

c) Obviously, the Respondents wanted to get rid of the

Complainant because it was during Q1 when the latter
was no longer billable to Hoot Holidays. As such, the
Complainant will be billable to Respondent which
causes more financial burden to the Company
considering the amount of the Complainant’s full
remuneration.

52. More to the point, the fact that the Complainant was
constructively dismissed has become more evident with the
occurrence of the incident on 25 April 2019 when Respondent
Evangelista told the Complainant to resign. It is quite surprising, at
the same time frustrating, that Respondent Evangelista who is
supposed to motivate and push the Complainant to achieve her
immediate goal wanted her to give up and resign from the job that
she loves the most. That act alone is a solid badge of constructive
dismissal bolstered by the events which had transpired thereafter, to
wit:

a. Respondent Deepak tactlessly told her during the

coaching session on 02 May 2019 that she has to face
the consequences if she will fail. Such statement made
the Complainant feel that she was being threatened
considering that she was previously advised by
Respondent Evangelista to resign from work. Although
the same is conditioned upon her failure to meet the
expectations under PEP, the fact that the PEP was
issued in bad faith made the statement a fact and an
event that will certainly happen.

b. The fact that she is no longer included in the meeting

of Dyna Lucero and Respondent Evangelista which
started on 13 May 2019.

c. The Respondent IGT opened for hiring the position for

Assistance Manager for Training which is the
Complainant’s official designation in IGT and same
was made more suspicious because it occurred while
she was under PEP.34 It is obvious that the
Respondents intended to terminate the employment of

34
See email from Manila Blaster announcing the hiring for Assistant Manager for Training hereto
attached as Annex “V”.

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 the Complainant considering that she was not an
official Assistant Manager for Sales and
Communication. Assuming that she was considered as
such, she discovered that the handling of
Communications was already transferred to the Quality
Audit (QA) Team of which she was not actually
apprised. The Complainant only confirmed the
information with Edmund Cuaresma. With all due
respect, Complainant should have been notified of the
change as she used to handle Communications. Also,
Dyna Lucero confirmed that effective 05 May 2019,
there is already a new Sales Coach in the person of
Oscar Aberjedo.

d. When the Complainant requested for leave to be

approved by Respondent Evangelista, the latter told
the former that the approval of Respondent Deepak
must first be obtained. Such act of Respondent
Evangelista was obviously made for purposes of
causing inconvenience to the Complainant because it
is her who has the authority to approve requests for
leave and such is the protocol ever since she started
working in IGT.

e. The fact that Respondent Evangelista designated

Dyna Lucero to handle Sales and Gab to handle
Communications thereby stripping off the Complainant
of her tasks is another solid badge of constructive
dismissal. While she was instructed to do coaching of
agent and huddle with the client about her findings, the
same were not her primary tasks. It was made even
worse when she was gently humiliated during her
encounter with the client because the latter had totally
no idea why the Complainant came to her.

f. The fact that the Complainant was asked to undergo

another PEP since the first one issued was null and
void due to the mistake in the date of issuance is
clearly unreasonable and only proves the fact that the
issuance of the PEP is made with malice and evident
bad faith.

g. The Complainant was offered to transfer to another

site by GM HR Villacampa and Sumit Vorha which she
declined to accept because no legitimate reason nor
purpose was provided by the offerors. While it is the

18 | P a g e
 prerogative of the employer to transfer the employee,
the employer must be able to show that the transfer is
not be unreasonable, inconvenient or prejudicial to
her.35

53. In view of the foregoing facts, the combination of the

harsh actions of the Respondents rendered the employment condition
of the Complainant hostile and unbearable. Applying the reasonable-
person standard test, the working conditions set by the respondents
have been so difficult or unpleasant for the Complainant that a
reasonable person in her shoes could have likewise constrained
herself to resign.

B. AS A RESULT OF THE
CONSTRUCTIVE
DISMISSAL, WHICH IS A
FORM OF ILLEGAL
DISMISSAL, COMPLAINANT
IS ENTITLED TO PAYMENT
OF SEPARATION PAY.

54. It being clear that the Complainant was constructively

dismissed, the normal consequences of an illegal dismissal which are
reinstatement of the aggrieved employee and the grant of backwages
must necessarily be awarded in her favor. These rights of the
employee do not depend on the status of his employment prior to his
dismissal but rather to the legality or illegality of his termination. 36

55. Article 279 of the Labor Code states that:

“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.” (Emphasis and
underscoring supplied)

56. However, it has been considered as an acceptable doctrine

that separation pay may be availed in lieu of reinstatement if it is no
longer practical or in the best interest of the parties. Separation pay in

35
Philippine Industrial Security Agency vs. Aguinaldo, G.R. No. 149974, June 15, 2005.
36
Cisell vs. NLRC, PNOC and PNOC-EDC. G.R. No. 1294449, June 12, 1999.

19 | P a g e
lieu of reinstatement may likewise be awarded if the employee
decides not to be reinstated.37

57. In view of the hostile environment and oppressive

treatment that Complainant was made to suffer, reinstatement is no
longer feasible. The damage caused to the latter is beyond repair and
she suffered a serious mental health which should be immediately
prevented considering that she is a single mother whose support is
necessary for her three (3) minor children. To stay with Respondent
IGT will surely make her condition worse.

58. An illegally or constructively dismissed employee, the

Complainant is entitled to: (1) reinstatement, if viable, or separation
pay, if reinstatement is no longer viable; and (2) backwages. These
two reliefs are separate and distinct from each other and are awarded
conjunctively.38

59. The Supreme Court held in Gold City Commercial

Complex, Inc. vs. NLRC39 that “as a rule, full backwages are
computed from the time of the employee’s illegal dismissal until
actual reinstatement and if the same is not possible, the backwages
must be computed from the time of the petitioners’ illegal dismissal
until the finality of our decision herein.”

60. Based from the above law and jurisprudence, the

computation of backwages should cover the entire period from the
time the Complainant’s compensation was withheld until the finality of
the decision of this case.

61. Furthermore, as a result of the constructive dismissal, the

Complainant is entitled to payment of 13th month pay.

62. The payment of 13th month pay is a statutory grant. Under

the Revised Guidelines on the implementation of the 13 th Month Pay
Law, an employee whose services has been terminated at any time
before the time for payment of the 13 th month pay is entitled to the
same monetary benefit in proportion to the length of time that he
worked during the year – that is from the time the employee started
working during the calendar year up to the time of his termination. 40

37
Nate Casket Maker v. Arango, G.R. No. 192282, 5 October 2016
38
Siemens vs. Domingo, G.R. No. 150488, July 28, 2008.
39
G.R. No. 110388
40
Internation School of Speech vs. NLRC and Mayumac, G.R. No. 112658, March 16, 1995.

20 | P a g e
COMPLAINANT IS ENTITLED TO
MORAL AND EXEMPLARY
DAMAGES AND ATTORNEY’S
FEES

63. Article 21 in relation to Article 2219 of the Civil Code,

provides for the payment of moral damages, thus:

“ART. 21. Any person who willfully

causes loss or injury to another in a manner
contrary to morals, good customs or public
policy shall compensate the latter for the
damage.
XXX

ART. 2219. Moral damages may be recovered

in the following and analogous causes: XXX
(10) Acts and actions referred to in Articles 21.
XXX.”

64. It is established that an employee is entitled to moral

damages when the employer acted a) in bad faith or fraud; b) in a
manner oppressive to labor; or c) ina manner contrary to morals,
good customs, or public policy.41

65. All the grounds for the award of moral damages are
present in this case. The Respondents acted in bad faith and malice
in depriving the Complainant of her and her children’s only source of
livelihood, thereby making them liable for payment of moral and
exemplary damages and to payment of attorney’s fees.

66. The dismissal of the Complainant was tainted with bad

faith on the part of the Respondents which they cannot deny.

67. The Respondents acted in bad faith when they issued the
PEP without proper and absolute justification. Respondent
Evangelista also acted in bad faith when she told the Complainant to
resign causing her to suffer pain, sleepless nights, wounded feelings
and mental anguish considering that she considered Respondent
Evangelista as one of her close friends.

68. The respondents likewise cannot feign good faith since

the manner by which they treated the Complainant as set forth in the
Statement of Facts was unreasonable, inconvenient and prejudicial to
41
Montinola v. Philippine Airlines, G.R. No. 198656, 8 September 2014

21 | P a g e
her which subsequently led to the pyschiatrist’s diagnosis that she is
suffering from anxiety and depression.

69. Moreover, the acts of Respondents were indeed designed

to ensure that the Complainant would fail in her PEP, thus ultimately
leading to her termination.

70. Aside from being tainted with bad faith, the actuation of
Respondent Deepak in telling SILAN “If you fail, you have to face
the consequences” constitutes oppression to labor and is grossly
contrary to morals, good customs and public policy.

71. The Complainant is also entitled to recover exemplary

damages since it cannot be denied that the illegal dismissal of
Complainant was effected in a wanton, fraudulent, reckless,
oppressive and malevolent manner.

72. Under Article 2229 of the Civil Code, "exemplary or

corrective damages are imposed, by way of example or correction for
the public good, in addition to the moral, temperate, liquidated or
compensatory damages." Exemplary damages are designed by our
civil law to reshape behaviour that is socially deleterious in its
consequence by creating negative incentives or deterrents against
such behaviour.”42

73. The best way to punish natural and juridical respondents

is to impose exemplary damages in order to serve as an example so
that the Complainant and its officers cannot easily, at anytime,
illegally dismiss employees by reason of unjustified or unauthorized
grounds with full intent and knowledge, resulting in grave and
irreparable loss and prejudice to the employees.

74. The Complainant is also entitled to the award of attorney’s

fees under Article 2208 of the New Civil Code as she was compelled
to incur edxpenses to protect her security of tenure and right to due
process.

75. Complainant’s claim for attorney’s fees is based on the

fact that he was compelled to litigate and incur expenses to protect
his interest by reason of the unjustified act of the respondents.
Therefore, respondents should be ordered to pay complainant an
award of attorney’s fees equivalent to the ten percent (10%) of the
total monetary award.

VII. RESERVATION

42
Ibid.

22 | P a g e
 Complainant respectfully reserves his right to file a
Supplemental Position Paper; present additional documentary and
testimonial evidence; and present her witnesses in the course of the
proceedings as may be necessary.

PRAYER
WHEREFORE, premises considered, it is most respectfully
prayed of this Honorable Office that judgment be rendered as follows:

1. Finding that the Complainant was constructively

dismissed by the Respondents;

2. ORDERING the respondents to pay the Complainant

backwages, separation pay in lieu of reinstatement and
13th month pay;

3. ORDERING the respondents to pay complainant moral

damages;

4. ORDERING respondents to pay complainant exemplary

damages;

5. ORDERING the respondents to pay complainant 10% of

all their claims as and by way of Attorney’s fees.

Pasig City for Quezon City. 25 September 2019.

SURTIDA & HERNANDEZ TORBELA

ATTORNEYS-AT-LAW
Counsel for the Complainant
6th Floor Strata 100 Building,
F. Ortigas Jr., Road (Formerly Emerald Avenue)
Ortigas Center, 1600 Pasig City,
Metro Manila, Philippines
Tel. No. (632) 636-6030
Telefax No. (632) 632-0273 loc. 106
Email: attys@hsg-legal.com

By:

CLARIE MAY M. TAMONDONG

PTR No. 5913409; 07/03/19; Pasig City

23 | P a g e
 IBP No. 088237; 05/03/19; Quirino
Roll of Attorneys No. 72776
MCLE Compliance – Admitted to the Bar 2019

Copy Furnished:

IGT SOLUTIONS, PVT. LTD.,

ARLENE EVANGELISTA and
DEEPAK MENON
5/F Polar Center Edsa corner
Shaw Boulevard, Brgy. Wack
Wack, Mandaluyong City 1552,
Philippines

24 | P a g e
Republic of the Philippines )
_____________________ ) S. S.

VERIFICATION and CERTIFICATION

I, RHIZA MAE T. SOUISSI, of legal age, Filipino and with

address at 12-C Sampaguita Street, Gloria 5 Subdivision, Talipapa,
Novaliches, Quezon City, after having been duly sworn to in
accordance with law, hereby depose and say: THAT---

1. I am the Complainant in the above-captioned case.

2. I caused the preparation of the foregoing Position Paper.

3. I have read the contents thereof and attest that the same are
true and correct of my own knowledge and based on the
records at hand.

4. I have not commenced any other action or proceeding involving

the same issues raised in the above-captioned case, in the
Supreme Court, the Court of Appeals, Regional Trial Court,
Metropolitan and Municipal Trial Court or any other tribunal or
agency.

5. To the best of my knowledge, no such action or proceeding is

pending in the Supreme Court, the Court of Appeals Regional
Trial Court, Metropolitan and Municipal Trial Court, or any other
tribunal or agency.

6. Should it come to my knowledge that a similar action or

proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals, Regional Trial Court, Metropolitan
and Municipal Trial Court, or any other tribunal or agency, I
hereby undertake to notify the court or tribunal taking
cognizance of the above-entitled case of such fact within five
(5) days from receipt of such knowledge.

RHIZA MAE T. SOUISSI

Affiant

25 | P a g e
 SUBSCRIBED AND SWORN to before me this _____ day of
September 2019 by the affiant who is personally known to me and he
has likewise exhibited to me his competent evidence of identity
consisting of _______________________________ with expiry on
____________________________.

Doc. No. ______; Notary Public

Page No. ______;
Book No. ______;
Series of 2019.

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