REPUBLIC OF THE PHILIPPINES
NATIONAL LABOR RELATIONS COMMISSION
REGIONAL ARBITRATION IV
Halang, Calamba City
FROILAN ACUPIDO
Complainant,
-versus- NLRC RAB IV CASE NO.11-01989-19-L
For: Illegal Dismissal/Money Claims and Damages
Hon. Labor Arbiter Maria Ana T. Advento
GNBTL
ENTERPRISES ET.
AL.,
Respondent.
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POSITION PAPER
Respondents, represented by herein individual respondent, most
respectfully state:
PREFATORY
Security of tenure is a constitutionally guaranteed right. Employees
may not be terminated from their regular employment except for just or
authorized causes under the Labor Code and other pertinent laws. To protect
the labor from the employer’s oppressions, our Labor laws as well as the
present Constitution provide rigid parameter to cause a valid suspension or
legitimate dismissal. Nonetheless, the foregoing parameter, i.e. legal
grounds for dismissal and two notice rule to suffice due process, will only be
applied if there is an actual dismissal per se, and cannot indiscriminately
invoked to perpetrate employee’s malicious scheme in bribing their
employers.
Worse, the foregoing rule should not supposedly be used and exploit
by an arrogant employee to hold hostage an innocent employer from its
baseless Complaint, by painting before the Honorable Office that she was
illegally dismissed (in this case, illegally suspended), when in truth and in
fact, he’s the one who abandoned his work, which consequently causes hefty
stress to her innocent employer.
Simply put, this present case is baseless, unwarranted so to speak as
there is no illegal suspension happened at the first place, it’s all a by-product
of complainant calculated moves to showcase his extreme arrogance to
intentionally damage the well established reputation of respondents.
Given the above fact that there was no illegal suspension to speak of,
there can be no question also as to the legality or illegality thereof. HENCE
IT DESERVES AN OUTRIGHT DISMISSAL.
THE PARTIES
1. Respondent, GNBTL Enterprises is an entitiy existing under
the laws of the Philippines. Ms. Luisa Libby, on the other hand, being
impleaded herein in her capacity as the owner thereof, both with an office
address at 375 Barangay Marinig, Sta. Rosa City, Laguna.
2. Complainant, Froilan Acupido, is a former employee of
respondent who wrongly assumed that he would be suspended and
intentionally abandoned his work.
STATEMENT OF THE CASE
3. This is a case of Illegal Suspension, Money Claims for Service
Incentives Leave Pay, Thirteenth (13th) Month Pay, Salaries, Overtime and
Holiday Pay. This case was set for mediation and mandatory conferences but
parties failed to come up with reasonable Compromised Agreement, hence,
they were directed to file their respective Position Paper.
STATEMENT OF THE RELEVANT FACTS
4. Complainant was hired in February of 2018 as Driver. At the
beginning of his employment he was furnished of the reasonable standards
to which he will be assessed from time to time. Complainant’s schedule as
driver is either from 6AM to 6PM or from 6PM to 6AM.
5. During his employment, there were numerous reports of his
violations that reached GNBTL, to wit:
a. Reporting lates for work;
b. Moonlighting during work;
c. Absences without leave and prejudicing the trip for the
particular shift;
d. Connivance with other employees and drivers;
6. Complainant was, in these circumstances, disciplined for the
abovementioned violations.
7. Complainant, instead of reforming himself and avoid to commit said
violations, continuously do these illegal activities.
8. As such, on August 03, 2019, the company deemed it appropriate to
give him another suspension1 from August 05-08, 2019. However, he did
not report in the office after his duty.
9. Upon learning learning of his impending suspension, complainant did
not report to the office after his duty and absented himself from his duties
on August 04, 2019 and thereafter.
10. The company did not send him notice of termination for abandonment
of work since he is expected to return to work and since the company
believes that the duties and responsibilities are already well-known to him
and hiring another driver is unproductive.
11. In greatest sign of arrogance and disrespect, complainant did not
received the Notice of Suspension informed his co-employee that he would
not report back to work if he will be suspended.
12. Respondent merely moves its neck from left to right and scratches its
head as it become speechless on how far complainant took his arrogance
against GNBTL, who feed his mouth and his family.
13. It is unfortunate that in order to save his neck from the ill effects of
his clear and apparent arrogance, complainant filed this present unfounded
Complaint.
ISSUES
I. WHETHER OR NOT, COMPLAINANT IS
ILLEGALY SUSPENDED OR HE HIMSELF ABANDONED
HIS WORK.
II. WHETHER OR NOT THAT THE UTTERANCE
MADE BY THE COMPLAINANT IS TANTAMOUNT TO
RESIGNATION.
III. WHETHER OR NOT COMPLAINANT IS
ENTITED TO ALL MONEY CLAIMS.
1
Attached hereto as Annex “A”
ARGUMENTS/DISCUSSION
Complainant was not illegally
suspended he abandoned his
work.
14. Respondent wishes to point it out in the onset that it never
illegally suspended complainant from his work. So whatever allegations he
presented in the present Complaint is a mere orchestrated lie, a
manufactured speculations that does not worth one’s salt.
In short, it’s just a mere tale tell, a speculation at its best, a lie at its
finest.
15. Complainant in averred in his complaint that he was
illegally suspended on July 26, 2019. However, this is not true. As shown
in his payslips from July 22-27, 2019 and July 29, 2019 to August 3,
2019 complainant was still connected with the company and still
performing his work.
16. As emphasized, complainant was not illegally suspended, she
was legitimately suspended for the violating company rules and regulations.
17. As succinctly discussed above, respondent still waited for the
complainant to report for work on the next working day (August 04, 2019)
and thereafter. The company made ways to have his back in the fold, but it
was the complainant who stubbornly refused to resume his work.
18. That is why respondent is confused and wondering anent the
allegation of complainant that he was illegally suspended on July 26, 2019.
19. But for the record, respondent is very willing to retain him as its
driver, but it was the complainant who intentionally abandoned his work, by
swiftly leaving respondent.
20. In Basay et.al v. Hacienda Consolacion2, the Supreme Court
states:
The one who alleges a fact has the burden of
proving it and the proof should be clear, positive
and convincing. In this case, aside from mere
allegations, no evidence was proffered by the
petitioners that they were dismissed from
employment. The records are bereft of any
indication that petitioners were prevented from
2
G.R. No 175532 April 19, 2010
returning to work or otherwise deprived of any
work assignment by respondents3.
Based on the foregoing fair rule, following queries herein should be
asked.
(i) Was there any evidence so to speak to prove
that complainant was illegally suspended from
work?
(ii) If there was, can complainant present the
said evidence?
(iii) Was there any records that complainant was
prevented to return from work?
(iv) Was there any records to show that
complainant was deprive of work assignment?
Surely, the answer of the above queries is NO! With resounding no as
there was no illegal suspension happed at the first place. Hence, the
Honorable Office should slay this present Complaint for being no basis
under the attendant circumstances and applicable laws at hand.
21. Actually, what is involve in this case is the so called
“abandonment of work”, which can be decisively inferred from
complainant’s subsequent overt act right after the suspension happened.
Although settled is the rule that the filling of Complaint is inconsistent with
abandonment. However, the said general rule finds no applications in the
present case as it required immediate filling of Complaint based on the
ruling of Supreme Court in Philtranco Service Enterprises, Inc. v. National
Labor Relations Commission4, which states
"Time and again, we have held that the
immediate filing of a complaint for illegal
dismissal by an employee, as in this case, is
inconsistent with abandonment."
In this case, it must be pointed out that complainant file the present
Complaint more than a (1) month from the moment she arrogantly left his
post as supervisor of respondent.
In short, it was the complainant who breached her employment
contract.
3
Ibid
4
351 Phil. 827, 835 (1998)
22. To be considered as “abandonment of work” the Supreme
Court clearly ruled in Investigation Security Agency, Inc. v. Daquena5,
which was also mentioned in the latest case of Protective Maximum Security
v. Fuentes6 held that:
“. . . "for abandonment of work to exist, it is
essential (1) that the employee must have failed to
report for work or must have been absent without
valid or justifiable reason; and (2) that there must
have been a clear intention to sever the employer-
employee relationship manifested by some overt
acts. . . . Absence must be accompanied by overt
acts unerringly pointing to the fact that the
employee simply does not want to work anymore.”
In Premier Development Bank v. NLRC et.al.7the Supreme Court
enunciates:
“To constitute abandonment, two elements
must concur: (1) the failure to report for work or
absence without valid or justifiable reason, and (2)
a clear intention to sever the employer-employee
relationship, with the second element as the more
determinative factor and being manifested by some
overt acts. 23 Abandoning one's job means the
deliberate, unjustified refusal of the employee to
resume his employment”
Applying the foregoing rule, it bears stressing that complainant
deliberately absent himself, predicated merely by its baseless assumption
that he will be fired, despite the fact that he is expected to return from work
after the supposed suspended that did not take place.
As to his clear intention to severe employee-employer relationship,
which could be tantamount to abandonment, he made a statement before his
co-workers that he does not want to resume his post, which is an apparent
portrayal of his intention to severe the standing employment contract.
If complainant did not
abandoned her work with
respondent, she is considered
5
G.R. No. 147473 March 30, 2004
6
G.R. No. 169303 February 11, 2015
7
G.R. No. 114695 July 23, 1998
resigned based on the last
utterance she made. Hence, she
is not entitled for any monetary
claim she sought to collect in
the present case.
23. As ruled by the Supreme Court in Mendoza v. HMS Credit8,
which states that resignation is:
“a formal pronouncement or relinquishment of a
position or office — is the voluntary act of an
employee who is in a situation where he believes
that personal reasons cannot be sacrificed in favor
of the exigency of the service, and he has then no
other choice but to disassociate himself from
employment. The intent to relinquish must concur
with the overt act of relinquishment; hence, the
acts of the employee before and after the alleged
resignation must be considered in determining
whether he in fact intended to terminate his
employment.
It bears stressing that she already made a statement during the
mandatory conference that clearly entails intention to relinquish his
employment contract with respondent i.e. “ayoko ng bumalik pasahan na
lang ng Position Paper”
Normally, the above statement is being uttered by an employee right
after he/she resigned from work to signify closure and severance of
employee-employer relationship. Hence, there is no doubt that complainant,
at any rate, have a strong intention to abandon his work.
Hence, the above discussed last utterance made by the complainant is
considered as a significant indication that he is resigning from work. As a
consequences of the said resignation, complainant also relinquish whatever
benefits he is entitled under the premises of law. The foregoing is based on
the general rule enunciated by the Supreme Court in Mendoza v. HMS
Credit9, which states:
“generally, an employee who voluntarily
resigns from employment is not entitled to
separation pay, an arrangement whereby the
employee would receive separation pay despite
having resigned voluntarily constitutes a contract
8
G.R. No. 187232 April 17, 2013
9
G.R. No. 187232 April 17, 2013
which is freely entered into and which must be
performed in good faith”
Complainant is not entitled for
Service Incentive Leave Pay as
she does not rendered a
required period to entitle such
Monetary Claim.
24. To lend semblance that the monetary claim she sought as relief
in the present Complaint is legitimate, complainant made it appears that she
is entitled with the Service Incentive Leave Pay.
Complainant in the foregoing matter is wrong! As provided by Article
95 of Labor Code
ART. 95. RIGHT TO SERVICE INCENTIVE
LEAVE. – (a) Every employee who has rendered at
least one year of service shall be entitled to a
yearly service incentive leave of five days with
pay.
Since Complainant has already availed of vacation leave, she cannot
in any way received such amount for wants of legal basis.
Individual Respondent Luisa
Libby is not liable
25. From the foregoing, it is undisputable that Ms. Libby did not
act arbitrarily nor committed bad faith against herein complainant. The truth
is, it was the complainant who showed arrogance towards the individual
respondent.
26. For the records, respondents exerted utmost effort to correct
complainant’s ill attitude, by informing her of all infractions he committed
during her stint as employee of respondent. Nonetheless, he ignored all of it,
as if he never committed the same.
Complainant was paid his full
salary, premium pay, holiday
pay, overtime pay and others
27. Complainant was paid his full salary as evidenced by the hereto
attached salaries. GNBTL religiously complied with labor standards and
other statutory obligations as regards the employment of herein complainant.
It is incumbent upon complainant to adduce evidence that he was not paid
his premium pay, holiday pay and overtime pay. To reiterate, GNBTL paid
him all of these benefits
28. In connection with this, the Supreme Court has emphasized
“that the constitutional policy to provide full protection to labor is not
meant to be a SWORD TO OPPRESS EMPLOYERS. The commitment
of this Court to the cause of the labor does not prevent us from
sustaining the employer when it is in the right. We should always be
mindful that justice is in every case for the deserving, to be dispensed
with the light of established facts, the applicable law and existing
jurisprudence.10”
Hence, the charge of illegal dismissal must fall for lack of factual
basis.
RELIEF
WHEREFORE, it is most respectfully prayed that a Decision be
rendered by this Honorable Office
(i.) declaring that;
a.) complainant was not illegally
suspended;
b.) complainant is not entitled for
separation pay, service incentives
leave pay and 13th month pay and
other monetary benefits;
(ii.) Ordering complainant to pay damages by way
of attorney’s fee.
Other remedies just and equitable under the premises are likewise
prayed.
Sta. Rosa City for Calamba City. 10 March, 2020.
Luisa B. Libby
10
Magsaysay Maritime Corporation vs. NLRC; GR No. 186180, March 22, 2010.
Individual Respondent
Copy furnished:
Froilan Acupido
Simultaneous Filing
