Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION REGIONAL ARBITRATION BRANCH NO. HL City of San Fernando, Pampanga DAX M. TIDULA, MD., ‘Complainant, ~versus NLRC CASE NO. RAB-III-01-31087-20 ROSARIO MEMORIAL HOSPITAL OF GUAGUA, INC. and MR. EULOGIO D. DEL CARMEN, CHAIRMAN Respondents. COMMENT (Re: Respondents Reply) Complainant Dr. Dax Tidula, by and through counsel, unto this Honorable Office, by way of comment to respondent's reply, most respectfully states 1. In view of RA 8799, intra-corporate controversies are now within the Jurisdiction of Court of General Jurisdiction, no longer of the Securities and Exchange Commission (Virginia O. Gochan vs. Richard G. Young GR No, 131889, March 12, 2001) 2, ‘The case cited by the respondent in the case of Purificacion G. Tabang, petitioner vs. NLRC and Pamana Golden Care Medical Center Foundation, Ine., respondent (GR No. 121143 January 21, 1997) is not ‘applicable in this case filed by the complainant Dr. Dax M, Tidula vs Rosario Medical Hospital of Guagua, Inc. for the following consideration, such as, Quoting from the decision which states that under Section 2 (1), Article I thereof “one of the powers of the Board of Trustees is to appoint 4 Medical Director, Comptroller/Administrator, Chie? of Services and such diticers as it may deem necessary and preseribe their powers and duties xXAnn”Petitioner Purificacion Tabang was a founding member, a member of the Board of Trustees and the Corporate Secretary of the respondent Pamana Golden Care Medical Center Foundation, Inc. “On October 30, 1990, the Board of Trustees issued a Memorandum appointing Petitioner us Medical_Director_and_Hospital_Administrator of the private respondent Pamana Golden Care Medical Center Foundation, Inc. in Calamba, Laguna. “On May 1, 1993, Petitioner was allegedly informed personally by Dr. Femesto Naval that in a special meeting held on April 30, 1993, the Board of Trustees passed a resolution relieving her of her position as Medical Director and Hospital Administration and appointing the latter and Dr. Benjamin Donasco as Acting Medical Director and Acting Hospital Administrator, respectively.” In contrast, in this instant case filed by Dr. Dax ‘Tidula, what transpired in his appointment as Medical Director of respondent Rosario Memorial Hospital of Guagua, Inc. are hereunder described as follows 3. Mr. Bulogio del Carmen engaged the services of Dr. Jose Antonio Rivera and Dr. Dax Tidula for the expansion and upgrading the respondent hospital into level 2 DOH accredited to become competitive in the hospital business in Pampanga. As most of the hospitals in the area are all level 2 and some are even level 3. 4. Dr. Jay Rivera, a non-stockholder, non-member of the Board of Director of the respondent hospital was appointed by Mr. Eulogio del Carmen as President and CEO of the respondent Rosario Memorial Hospital of Guagua, Inc. in his capacity as chairman of the board without the imprimatur and board resolution and/or memorandum of the Board of Directors. The President and CEO of a corporation must be elected or appointed by the Board of Directors covered by a Board resolution as a corporate officer, which was not the case in the appointment of Dr. Jose Antonio Rivera 5. In tun, Mr. Eulogio del Carmen as chairman and Dr. Jose Antonio Rivera as President and CEO jointly designated and or appointed Dr. Dax Tidula 10 be merely the Medical Director to recruit nurses, ‘overseeand monitor nurses, attending physicians andupgrading the medical facilities of the hospital as necessary requirements in the expansion and upgrading of the Rosario Memorial Hospital of Guagua, Ine.to become level 2 DOH aceredited. The designation and or appointment of Dr, Dax Tidula was crafted in one sentence without specifying duties and responsibilities (attached as Annex “A” of complainant’s position paper) likewise without aboard resolution/memorandum to that effect. Dr. Dax Tidula was not also a stockholder and neither a member of the Board of Directors. 6. Deducting from the facts and circumstances, the character of designation and or appointment of the two (2) newly appointed hospital officials, after Mr. Eulogio del Carmen has attained his objective in the upgrading of respondent hospital into level 2 DOH accredited, he started to terminate Dr. Jose Antonio Rivera as President and CEO, and thereafter Dr. Dax Tidula without a board resolution or memorandum to that effect. 7. With due respect, it appears Mr. Eulogio del Carmen had been ‘managing the respondent hospital akin to a single proprietorship without involving the Board of Director in the management and or adminstration of the respondent hospital’ affairs in violation of the law 8. Itis relevant to note, the designation and or appointment of Dr. Jose Antonio Rivera and Dr. Dax Tidula were never confirmed nor ratified by the Board of Directors by board resolution and or memorandum which clearly shows the designations and or appointments were only the personal act of the chairman, Mr. Eulogio del Carmen. 9. Prior and after the appointment of Dr. Jose Antonio Rivera, and Dr, Dax Tidula, Mr. Eulogio del Carmen is the only active and visible officer attending to the affairs of the Rosario Medical Hospital of Guagua, Ine, 10. Inferentially, it appears the incorporation of Rosario Medical Hospital of Guagua, Inc. was only in paper and there is no Board of Directors in action. Every bit of management and administration is centered ‘on Mr. Eulogio Del Carmen, apparently as the sole owner of the respondent hospital 11, As replacement to Dr. Jose Antonio Rivera, he appointed his son, Nelson del Carmen as the President and CEO, who is a resident of Guam and doing business thereat. He seldom comes to the Philippines to visit his father and the hospital 12, The Board of Directors as a body and the office of the PresidenCEO are the key in the managemenvadministration of a corporation. Management by remote control does not speak well for the corporation, Rosario Memorial Hospital of Guagua, Ine. 13. In the expansion and upgrading of the Rosario Memorial Hospital of Guagua, Inc. into level 2 DOH accredited hospital, itis a basic requirement that the newly installed facilities, apparatus and laboratories in their respective departments should be supervised by specialists who havediplomate and fellow status in their respective specialties. General practitioners are not qualified to these positions. 14. In compliance to meet the requirements of the Department of Health, Dr. Dax Tidula suggested to Mr. Ely del Carmen without objection the following physicians, who are diplomates and fellows in their respective fields of expertise to head the different departments in the hospital; namely: Dr. Alvin Penafiel -Pulmonary Department Dr Michelle Serrano- Cardiology Department Dr. Anthony Tayao ~ Neurology Departmemt Dr. Edgar Menesses — Head Minimally Invasive Surgery/Laparoscopic sub Department of Surgery Dr. Joseph Kelvy Musngi — Gastroenterology Department Dr. Gonzalo Roman Jr. — Pathologist of Level 3 Laboratory g. The building of the dialysis department was still under construction when Dr. Tidula was dismissed. esos 15, After the approval of the Level 2 DOH accreditation, Mr. Eulogio del Carmen dropped and refused to recognize the recommended ‘qualified physicians for various reasons, among others, are as follows: a They were opposed by some close to the Chairman, but their recommendation were not qualified b. Mr. Ely del Carmen’s reasons among others, that some of the recommended physicians though qualified, owned stocks in other hospitals. This is common among practicing physicians and this is good in the hospital business. Perhaps, Mr. Ely del Carmen can do the same by selling few or qualifying share of stocks for the best interest of this hospital in the point of view of the business and management as well. 16, When Dr, Dax Tidula was terminated, the different departments ‘were not yet fully functional for reasons aforestated in the preceding, 17. Atleast, Dr. Dax Tidula was able to accomplish the objective of Mr. Eulogio det Carmen, that is, the upgrading of Rosario Memorial Hospital of Guagua, Inc. to level 2 DOH accredited. 18, Thus, the potential of Rosario Memorial Hospital of Guagua, Ine. hhas not yet been attained for reasons aforestated and failure of Mr. Eulogio del Carmen to mect the challenge of an upgraded hospital business. 19. Adopting and applying the principle of piercing the veil of corporate entity will reveal that Rosario Memorial Hospital of Guagua, Ine.‘was only incorporated in paper but not in the administration and ‘management thereof. It appears to be only a one man operation. 20. Clearly, the facts and circumstances as well as the character and manner of the appointment of Purificacion Tabang are entirely different from the appointment of Dr. Dax Tidula. While the appointment of Purificacion Tabang was in accordance to law, the appointment of Dr. Dax Tidula was in circumvention of the law Ergo, Purificacion Tabang was a corporate officer of respondent Pamana Golden Care Medical Center Foundation, Ine. while Dr. Dax Tidula was, for all intent and purpose, an employee of Mr. Ely del Carmen who happens to be the owner of respondent Rosario Memorial Hospital of Guagua, Inc, 21. As regards to the effect to the hospital of the occasional brown outs that may occur from time to time, this is purely the concem of the hospital management 22. With respect to the package offer of Php 169,791.67 by Mr. Eulogio del Carmen, the said amount was not in compliance to his ‘commitment in the termination letter. 23. From the tenor of the termination letter, Mr. Eulogio del Carmen and Nelson del Carmen committed to pay the 13" month pay, other benefits ‘under the law such as separation pay and others. 24. In view of the foregoing, Dr. Dax Tidula was terminated as an EMPLOYEE of Mr. Bulogio del Carmen’s hospital and the illegal dismissal is not an intra-corporate controversy. 25. Therefore, this instant case falls under the jurisdiction of the Honorable Office and not under SEC, nor to the Court of General Jurisdiction. Respectfully Submitted pr. fax. 1DuLA, MD dmplainantSUBSCRIBED AND SWORN to before me, this 5" day of October 2020, by Dax M. Tidula, MD who exhibited to me his Driver's License with No. 1-91- 127500 issued at LITO San Femando Pampanga, P ‘ais Doc. No. +E aaa} Bese No, ae Book No. er ws (2 Series of 2020 COPY FURNISH: MR. EULOGIO DEL CARMEN ROSARIO MEMORIAL HOSPITAL OF GUAGUA, INC.