REPUBLIC OF THE PHILIPPINES
NATIONAL LABOR RELATIONS COMMISSION
7th Division
CEBU CITY, PHILIPPINES
CARLOS JERUSALEM, JR.,
Complainant, NLRC RAB VII Case No. 12-2339-17
-versus-
ECOLOGY SPECIALIST INC., MS.
MARGE VASQUEZ,
Respondents.
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POSITION PAPER FOR THE COMPLAINANT
COMES now Complainant, through the undersigned counsel,
most respectfully submits his position paper and avers, thus:
PREFATORY STATEMENT
One’s employment or profession is a ‘property right’ and
the wrongful interference therewith is an actionable wrong.
The right is considered to be property within the protection of
the constitutional guarantee of due process of law [Texon vs.
Millena, G.R. No. 141380. April 14, 2004].
STATEMENT OF THE CASE
This is a case for illegal dismissal, Illegal suspension, overtime
pay, holiday pay, night shift differentials, separation pay,
reinstatement, damages and attorney’s fees by the complainant
against the respondents.
THE PARTIES
Complainant Carlos Jerusalem, Jr. is of legal age, married and a
resident of San Sebastian, Samboan, Cebu;
Respondent ECOLOGY SPECIALIST INC., is a corporation
duly organized and existing under the laws of the Republic of the
Philippines with principal address located at Building F. Phoenix Sun
Business, Libis, Quezon City.
Respondent MS. MARGE VASQUEZ is the HR Manager of the
respondent ECOLOGY SPECIALIST INC.
STATEMENT OF FACTS
Complainant was hired by Respondent as a Station Manager at
its Gasoline Station located in San Sebastian, Samboan, Cebu on May
6, 2016.
As a matter of fact, complainant is not a mere station manager,
complainant is also the proprietor of JKG GAS STATION and shown
by the Certificate issued by the Department of Trade and Industries
hereto attached as Annex “A”.
Complainant’s registration with the DTI was the one used in
the application of all permits in establishing the San Sebastian,
Samboan, Cebu Gasoline of the respondents, as shown by the
following:
1. Mayor’s Permit, machine copy of which is hereto
attached as Annex “B”;
2. Application for Registration with the Bureau of
Internal Revenue, machine copy of which is hereto
attached as Annex “C”;
3. Authority to print issued by the Bureau of
Internal Revenue, machine copy of which is hereto
attached as Annex “D”;
4. Position Paper of Jessica M. Senagan, machine
copy of which hereto attached as Annex “E”;
Through some machination, respondent made it appear that
complainant was a probationary employee.
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As a station manager, who happens to be persons whose name
appears to be the proprietor of the gasoline station, his monthly
salary is P16,832.00.
Complainant was recruited by FILOIL ENERGY COMPANY
INC., last July 2013. He was sent to Manila for a 1 Month training on
how to find and operate gas station. Prior on the turnover
complainant underwent another training for COMPREHENSIVE
RETAIL MANAGEMENT TRAINING COURSE last September 6,
2014 in Cebu City and STATION MANAGEMENT SYSTEM
COURSE last March 18, 2015 at PHCCI Dumaguete City.
Since, Samboan Station has no cardinal, a certain Cindy Lim
called complainant to take over and process the documents needed
for the operation.
On January 7, 2016 complainant went to Cebu City to register
the GAS STATION under my his as operator with the named JKJ
GAS STATION in DTI. Complainant shouldered all his expenses to
and fro during the processing period. Afterwards, complainant
started processing my Business permit in the Municipality of
Samboan, Cebu which he received on last March 01, 2016.
Complainant attended the Seminar for New Registration in the
Bureau of Internal Revenue in Talisay City Last March 16, 2016. After
he got all the needed documents I emailed it to Cindy Lim all the
documents and she advised complainant that we will have our first
day operation on May 6, 2016. Complainant was given a
CERTIFICATION by Cindy Lim that FILOIL is the exclusive
distributor of petroleum products sold in FILOIL-San Sebastian by
CARLOS JERUSALEM JR.
Later that complainant learned that the FILOIL GAS was
bought by the TOTAL PHILS., but the San Sebastian,Samboan station
was not included of the buy out.
Complainant was told by Cindy Lim that JKJ STATION
Samboan will be Managed by respondent ECOLOGY SPECIALIST
INC starting August 1, 2016. A certain Sam Oyardo was designated
as the new Area Manager and he later made complainant sign
Cardinal Operator Partnership Program.
From the month of August to March 2016, complainant was
operating the Filoil Samboan station but in the paperworks it would
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appear that it is owned by JKJ Gas Station, of which complainant was
the registered proprietor.
Last March 29, 2017 the respondent called complainant for a
meeting in Cebu City to address some issues like the wages of the
personnel and pump attendant.
Later on, complainant was shocked when he received a contract
of employment via LBC last March 30, 2017 which states that her was
under a probationary for 6 months where in fact he was working
with the company for almost two (2) years, and that JKJ Gas Station
was the name of the paperworks which complainant was the
registered propietor.
Last August 23, 2016 complainant received a suspension order
for 30 days without any show cause for the reasons of shortages. Ms.
Irna Batanes ordered me to give all the margin to her which I issued a
check amounted to P60,880.00 and a cash amounted P3,511.00
Ms. Tess Fuertes arrived in the station to make Full Audit
From August 1 to August 23, 2017 and there was no shortages.
Complainant noticed from the reports of the auditor for the month of
August 2016 internal audit was totally blank with no expenses
written/attached on it.
To make matters worse, complainant’s BIR payments,
electricity, pisonet and etc. were never credited even though he
have the receipts. The internal audit was done with Ms. Tess Fuertes
and complainant’s margin report was completed which complainant
knew that he didn’t have shortage . Complainant asked Ms. Tess for a
copy of his audit report that she sent to Manila but she said it is
prohibited and her big Boss didn’t want to.
Machine copy of the Letter dated August 23, 2017 is hereto
attached as Annex “F”.
Later, complainant received the termination papers which
shocked complainant because it was stated on the paper that I have
shortages amounted to P29,420.00 but when complainant read the
termination papers he noticed that the expenses in the month of June
to July, 2017 did not coincide.
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The company auditor named Mr. Ronnie Tano made his audit
from the month of June to July 15, 2017 and informed me that my
margin had an excess of 23,511 which I issued him a checked which
means I have no shortages and my margin was intact.
Machine copy of the Termination letter dated September 22,
2017 is hereto attached as Annex “G”.
STATEMENT OF THE ISSUES
1. WHETHER OR NOT COMPLAINANTS WAS
ILLEGALLY DISMISSED AND THUS ENTITLED
TO REINSTATEMENT;
2. WHETHER OR NOT RESPONDENT SHOULD BE
COMPELLED TO PAY TO THE COMPLAINANT
TO PAY THE LATTER THER MONEY CLAIMS;
3. WHETHER OR NOT COMPLAINANTS ARE
ENTITLED TO ATTORNEYS FEES.
DISCUSSIONS AND ARGUMENTS.
1. COMPLAINANT
WAS ILLEGALLY
DISMISSED AND
THUS ENTITLED TO
REINSTATEMENT.
It is the strong contention of the herein complainant that he was
illegally dismissed.
Section 1 of Rule of the Implementing Rules and Regulation of
the Labor Code provides that no worker shall be dismissed except for
just or authorized causes provided by law and after due process.
The two facets of this legal provision are: (a) the legality of the
act of dismissal, that is, dismissal under the grounds provided for
under Article 282 or Article 283 of the labor Code; and (b) and the
legality in the manner of dismissal.
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The illegality of the act of dismissal constitutes discharge without
just or authorized cause while illegality in the manner of dismissal is
dismissal without due process.
Firstly, the respondents’ alleged grounds for the complainant’s
termination are enumerated in the Notice of Termination dated
September 22, 2017 (Annex “G”) as follows, to wit:
1. Stealing or attempting to steal from the Company, its
employees, clients, suppliers;
2. Any act of fraud committed against the Company, its
officers, employees, clients, suppliers, consultants, contractors
and/or visitors;
3. Tampering with, altering or otherwise falsifying
Company papers or documents for personal gain;
4. Article 262 of the Labor Code (now Article 297), letter
c. Fraud or willful breach by the employee of the trust reposed
in him by his employee or duly authorized representative;
5. Article 282 of the labor code (now art 297) letter e.
Other causes analogous to gross and habitual neglect of duty.
The said letter additionally states that complainant was a
probationary employee which the Labor Arbiter could never be
mislead for the simple reason that the complainant has already been
employed for than one (1) year at the time of the letter, September 23,
2017.
In sum, the gist of the respondent’s violations is whether or not
there were shortages on the part of the complainant.
In the same letter dated September 23, 2017, the sum of
P29,410.70 was imputed to the complainant as the amount of his
shortages.
This is an utter falsehood.
There was malice on the part of the respondents when they
made the audit because they maliciously refuse to honor some of
complainant’s valid expenses.
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To be more specific, in the letter dated September 23, 2017,
respondent alleged that complainant incurred the sum of P37,318.02,
when in truth and in fact, complainant incurred the sum of
P51,771.09 as broken down as follows:
a. P24,810.00 as shown by the picture of the Laptop
Screen of Maria Teresa Fuertes, cluster head of the respondent,
which complainant was lucky enough to get a picture of, hereto
attached as Annex “H”;
b. P26,961.90 representing all the expenses the
complainant incurred in connection with the day to day
operation of the San Sebastian, Samboan, Cebu Station, for the
whole month of June, 2017, as shown by the Summary of Petty
Cash Fund of the complainant, hereto attached as Annex “I”;
The P26,961.90 representing all the expenses the complainant
incurred in connection with the day to day operation of the San
Sebastian, Samboan, Cebu Station, for the whole month of June, 2017,
was for the following:
a. Armak Tape;
b. Omni LED Bulb 6w;
c. Ballpens, etc;
d. Photocopy; Padlock, etc;
e. Water Finding Paste;
f. LBC Payment for documents sent to the respondent;
g. Various expenses which were covered with official
receipts which are vital to the day to day operation of
the business;
h. Internet;
i. BIR;
j. Electricity Bills;
The amount P26,961.90 in the Summary of Petty Cash Fund for
the month of June, 2017 is encircled and marked as Annex “I-1”;
In the same letter dated September 23, 2017, the sum of
P40,110.13 was imputed to the complainant as the amount of his
shortages.
This is also an utter falsehood.
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There was malice on the part of the respondents when they
made the audit because they maliciously refuse to honor some of
complainant’s valid expenses.
To be more specific, in the letter dated September 23, 2017,
respondent alleged that complainant incurred the sum of P40,110.13,
when in truth and in fact, complainant incurred the sum of
P45,685.15 broken down as follows:
a. P24,490.00 as shown by the picture of the Laptop
Screen of Maria Teresa Fuertes, cluster head of the respondent,
which complainant was lucky enough to get a picture of, hereto
attached as Annex “H”;
b. P21,195.15 representing all the expenses the
complainant incurred in connection with the day to day
operation of the San Sebastian, Samboan, Cebu Station, for the
whole month of June, 2017, as shown by the Summary of Petty
Cash Fund of the complainant, hereto attached as Annex “J”;
The P21,195.15 representing all the expenses the complainant
incurred in connection with the day to day operation of the San
Sebastian, Samboan, Cebu Station, for the whole month of June, 2017,
was for the following:
a. Online/Gas Photocopy;
b. Deposit to Dumagute;
c. Calculator;
d. Rug and Zonrox;
e. Kolor Cut and Tools rental;
f. Payment to CEBU;
g. Sun Load;
h. Internet Scan;
i. Gas for Generator;
j. Labor Costs for Electrician;
k. Wires
The said various expenses which were covered with official
receipts which are vital to the day to day operation of the business;
The amount P21,195.15 in the Summary of Petty Cash Fund for
the month of July, 2017 is encircled and marked as Annex “J-1”;
So, the correct computation should have been that the actual
margin for the months of April to August 2017 is as follows:
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Months Actual Actual
Margin Exp.
April 2017 P87.861.35 P50,141.95
May 2017 P3,139.53 P53,882.51
June 2017 P86,465.82 P57,771.09
July 2017 P88.888.73 P40,110.13
August 2017 P67,104.72 P48,796.23
Total P423,460.15 P250,674.91
On August 24, 2017, respondent confiscated the checkbook of
the complainant which was devoted to the remittance of the margin
to the respondent.
While the said checkbook and the checking account was under
the name of the complainant alone, the opening of this account was
made for the convenience of the both the complainant and
respondents so that the complainant will just issue to the respondent
a check corresponding to the amount due to the respondent.
Since the checkbook was confiscated by the respondent on
August 24, 2017, the complainant was prevented from remitting to
respondent the sum of P9,730.00, which is still in the checking
account.
Machine copy of the statement of account of Checking Account
No. 200015763565, is hereto attached as Annex “K”.
So, other words, the Cash +Check in Hand in the letter dated
September 23, 2017 should not be just P163,860.62 but should also
include the P9,730.00 in the Checking account, which the
complainant could have remitted to the respondent complainant not
been prevented from doing.
Therefore, the total cash+Check on Hand should be P163.860.62
plus P9,730.00 which would amount to P173,590.62.
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To summarize:
Actual Exp. Plus
Actual Margin Actual Cash +
Cash + Check on
Exp. Check on
Hand
Hand
Total P423,460.15 P250,674.91 P173,590.62. P424,265.53
So other words, there was actually no shortage incurred by the
complainant, as a matter of fact, his Actual Expenses combined with
Cash + Check on Hand is P805.38 more that the actual margin.
Therefore it is very clear that respondents should be held liable
severally and jointly for ILLEGAL DISMISSAL because the
respondent did not incur any shortage at all, matter of fact, his Actual
Expenses combined with Cash + Check on Hand is P805.38 more
that the actual margin.
2. RESPONDENT
SHOULD BE
COMPELLED TO
PAY TO THE
COMPLAINANT TO
PAY THE LATTER
HIS MONEY CLAIMS;
Having exhaustively discussed that the complainant was
illegally dismissed, complainant now endeavors to discuss the effects
of illegal dismissal.
In the case of Rodriguez vs. NRLC [G.R. No. 153947, 2002 Dec
5], the Supreme Court reiterated their constant ruling in case of
illegal dismissal, to wit:
“Under Art. 279 of the Labor Code, an employee who is
unjustly dismissed is entitled to reinstatement, without loss of
seniority rights and other privileges, and to the payment of his full
backwages, inclusive of allowances, and other benefits or their
monetary equivalent, computed from the time his compensation
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was withheld from him (which, as a rule, is from the time of his
illegal dismissal) up to the time of his actual reinstatement.
Thus, based on the foregoing Supreme Court Ruling, since the
complainants were illegally dismissed by the respondent, it is but
logical that respondent shall be condemned by the Honorable Labor
Arbiter to pay the complainants’ money claims, more specifically to:
1. REINSTATE COMPLAINANT WITHOUT LOSS
OF SENIORITY RIGHTS AND OTHER PRIVILEGES;
2. PAY FOR THE BACKWAGES OF
COMPLAINANT, INCLUSIVE OF ALLOWANCES, AND
OTHER BENEFITS OR THEIR MONETARY
EQUIVALENT, COMPUTED FROM THE TIME HIS
COMPENSATION WAS WITHHELD FROM HIM
(WHICH, AS A RULE, IS FROM THE TIME OF HIS
ILLEGAL DISMISSAL) UP TO THE TIME OF HIS
ACTUAL REINSTATEMENT.
Applying the foregoing to the case of the complainant,
respondents should be Reinstate complainant without loss of
seniority rights and other privileges and to Reinstate complainant
without loss of seniority rights and other privileges, Pay for the
backwages of complainant, inclusive of allowances, and other
benefits or their monetary equivalent, computed from the time his
compensation was withheld from him (which, as a rule, is from the
time of his illegal dismissal) up to the time of his actual
reinstatement.
Other Monetary Claims:
With respect to overtime pay, holiday pay, night shift
differentials, monetization of vacation leave, it is very clear from the
pay slips described above that complainant was never paid any
overtime pay, holiday pay, night shift differentials and vacation leave
pay, therefore it is but proper that the labor arbiter grant the same in
accordance with prevailing laws and jurisprudence.
3. WHETHER OR NOT
COMPLAINANTS ARE
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ENTITLED TO
ATTORNEYS FEES.
Complainant, because of the wrongful acts of the respondent,
was forced to file the instant action. Complainant was forced to
engage the services of the undersigned counsel and they also
incurred expenses aside from the payment of the professional
services of counsel.
By reason of the malevolent acts of the respondents, in the
interest of social and substantial justice, the respondents must be
suffered to pay attorney’s fees in the amount as the Honorable Labor
arbiter may deem just and proper under the circumstances.
PRAYER
Wherefore, premises considered, it is most strongly prayed of
this Honorable Labor Arbiter, to render judgment in favor of the
complainant and against the respondents in the following manner, to
wit:
1. Declare that the complainant was illegally dismissed
by the respondents and Applying the foregoing to the
case of the complainant, respondents should be
Reinstate complainant without loss of seniority rights
and other privileges and to Reinstate complainant
without loss of seniority rights and other privileges,
Pay for the backwages of complainant, inclusive of
allowances, and other benefits or their monetary
equivalent, computed from the time his compensation
was withheld from him (which, as a rule, is from the
time of his illegal dismissal) up to the time of his
actual reinstatement,
2. Order the respondents to pay the complainant
damages and attorney’s fees.
Other reliefs as are just and equitable are likewise prayed for.
Cebu City, Philippines, February 19, 2017.
ATTY. FRANCIS GEORGE F. DINOPOL
Counsel for the Complainant
Suite 402 G.K. Chua Bldg.
Sanciangco St., Cebu City
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Roll of Attorneys Number 50084
PTR No. 175121, 12-12-2017 Cebu Capitol
IBP No. 1065274, 11-9-2017, Cebu Chapter
MCLE Compliance No. II-0014596
MCLE Compliance No. III-0021915, 06-26-2012
MCLE Compliance No. IV-0011760, 02-08-2013
MCLE Compliance No. V-0024375, 11-21-2016
Tel. No. 5151417/4141178
Copy furnished:
ECOLOGY SPECIALIST INC., and
MARGE VASQUEZ,
Building F. Phoenix Sun Business,
Libis, Quezon City.
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