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Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. 1
City of San Fernando, La Union
MERCEDES TOLENTINO,
Complainant,
-versus-
NLRC Case No. RAB – I
08-1118-18 (SFLU)
JAMPZ CANTEEN and/or
NOVELYN MARIANO
Respondents.
x---------------------------------------------------------x
POSITION PAPER
COMPLAINANT, through counsel and unto this Honorable Office,
most respectfully alleges that:
1. COMPLAINANT MERCEDES TOLENTINO is of legal age, Filipino
and residing at Gabaldon, Tanqui, San Fernando City, La Union,
where summons and other lawful processes may be served;
2. RESPONDENTS are JAMPZ CANTEEN, located at ITRMC, Sevilla,
San Fernando City and/or NOVELYN MARIANO, the proprietor,
residing at Zone 4 Gabaldon, Tanqui, San Fernando City, La Union,
where summons and other lawful processes may be served;
3. Complainant was hired by the respondent on January 18, 2018 to
work as a cook at the latter’s business, Jampz Canteen, which is
located at Sevilla, San Fernando City, La Union. She was required to
work as a cook from 5:00 am to 2:00 pm, every day of the week,
including during the holidays, with a daily wage amounting to Three
Hundred Fifty (Php 350.00) Pesos, without being given any pay slip;
4. As part of their fringe benefits, the employees of the canteen,
including herein complainant, were provided with free coffee.
However, sometime around July 2018, after the canteen has reopened
after being closed for about nine (9) days, the respondent told another
employee that respondent is taking back their free coffee benefit. She
told the employee “agsarili kayun ti kape.” Later on, that employee
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told his co-employees, including herein complainant, that the
respondent has already taken back their free coffee benefit;
5. On August 8, 2018, Sheryl, an employee at Jampz canteen who is in-
charge in going to the market, told the complainant that she needs
Thirty (Php 30.00) Pesos so she can pay the tricycle driver her fare
from the market. Complainant gave to Sheryl the amount she needed
with the expectation that it will be replaced by the respondent later on;
6. Sometime later, instead of having the thirty-peso fare being replaced,
the employees instead used it to buy their coffee. However, the
complainant found out that she was not given a cup of coffee. So
when she asked another co-employee what happened to her coffee, the
co-employee told the complainant that the respondent already drank
the cup of coffee that is supposedly the complainant’s;
7. Hence, the complainant asked the respondent to pay for her share,
which is roughly Six (Php 6.00) Pesos. The respondent responded
irritably and menacingly by saying “ammu yu met nga awan
mabatbati ti kahak” (roughly translating to “you know that I almost
have nothing left in my cash register”);
8. The complainant replied by saying that it’s the respondent who told
them that they have to pay for their coffees so it is also only proper
that the complainant should get what she has paid for. Then, the
respondent unreasonably got heated and she told the complainant
“pumanaw kat tuyen, nagpuskol ta rupam” (roughly translated as
“leave this place, you have a very thick face”);
9. The complainant tried to explain her side but the respondent was so
irritable and indignant. Left with no choice, the complainant
reluctantly left.
DISCUSSION
The dismissal was neither just nor
authorized
10.As a regular employee who has worked for the respondent for
approximately eight (8) months and whose duties are necessary and
desirable for the respondent’s business, the complainant has a right to
security of tenure. This right is guaranteed by the Constitution as well
as the Labor Code;
11.The Labor Code provides that an employee may only be terminated
from service by the employer for just and authorized causes. To wit:
ART. 296. TERMINATION BY EMPLOYER
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An employer may terminate an employee for any of the
following causes:
(a) Serious misconduct or willful disobedience by the employee
of the lawful orders of his employer or representative in
connection with her work;
(b) Gross habitual neglect by the employee of her duties;
(c) Fraud or willful breach by the employee of the trust reposed
in him by her employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against
the person of her employer or any immediate member of her
family or her duly authorized representative; and
(e) Other causes analogous of the foregoing.
ART. 297 CLOSURE OF ESTABLISHMENT AND
REDUCTION OF PERSONNEL
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ART. 298. DISEASE AS GROUND FOR TERMINATION
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12.It is clear that there was neither just nor authorized cause for the
termination of the complainant. The only plausible reason why the
respondent dismissed the complainant was due to the respondent’s
temper or irritability when the complainant asked the respondent
about her coffee, a cause which is both petty and unreasonable;
13.As the complainant was dismissed neither for just nor authorized
causes, her dismissal, then, is illegal;
There was no procedural due process
14.Granting for the sake of argument that the complainant was dismissed
for just or authorized causes, her dismissal is still illegal as the
respondent did not comply with the procedural due process of
termination;
15.The Implementing Rules of the Labor Code provide:
SEC. 2. SECURITY OF TENURE
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XXX
For termination of employment based on just causes as defined
in Article 282 of the Labor Code:
(i) A written notice served on the employee specifying the
ground or grounds for termination, and giving said employee
reasonable opportunity within which to explain her side.
(ii) A hearing or conference during which the employee
concerned, with the assistance of counsel if she so desires is
given opportunity to respond to the charge, present his
evidence, or rebut the evidence presented against her.
(iii) A written notice or termination served on the employee,
indicating that upon due consideration of all the circumstances,
grounds have been established to justify the termination.
For termination of employment as defined in Article 283 of the
Labor Code, the requirement of due process shall be deemed
complied with upon service of a written notice to the employee
and the appropriate Regional Office of the Department of
Labor and Employment at least thirty days before effectivity of
the termination, specifying the ground or grounds of
termination.
16.“Employee must be given adequate opportunity to be heard before
he/she is notified of his/her actual dismissal for cause.” (Fujitsu vs.
CA)
17.The complainant was dismissed by the respondent on August 8, 2018
without any notice nor hearing. She was never given the opportunity
to defend herself as she was dismissed outright and under the mercy
of her employer. Thus, there was no procedural due process;
13th Month Pay
18.As the complainant has already rendered about 8 months of service,
she shall receive her 13th month pay equivalent to the duration of her
service;
19.“The payment of 13th month pay may be demanded by the employee
upon the cessation of employer-employee relationship.” (Archilles
Manufacturing Corporation vs. NLRC)
Separation Pay in lieu of reinstatement
20.The Labor Code provides:
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ART. 293 [279]. SECURITY OF TENURE
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An employee who is unjustly dismissed from work shall be
entitled to reinstatement without loss of seniority rights and
other privileges and to her full backwages, inclusive of
allowances, and to her other benefits or their monetary
equivalent computed from the time her compensation was
withheld from her up to the time of her actual reinstatement.
21.Since complainant was illegally dismissed, she is entitled to
reinstatement and backwages;
22.Unfortunately, her relationship with the respondent is already so
strained that reinstatement is no longer practical or in the best interest
of the parties. Hence, the complainant is entitled to separation pay in
lieu of reinstatement.
23.Velasco v. National Labor Relations Commission emphasizes:
“The accepted doctrine is that separation pay may avail in lieu
of reinstatement if reinstatement is no longer practical or in the
best interest of the parties. Separation pay in lieu of
reinstatement may likewise be awarded if the employee decides
not to be reinstated.
Under the doctrine of strained relations, the payment of
separation pay is considered an acceptable alternative to
reinstatement when the latter option is no longer desirable or
viable.”
Damages and Attorney’s Fees
24.“The complainant is entitled to damages as her termination was
oppressive to labor and that it was done contrary to morals, good
customs or public policy.” (San Miguel Properties vs. Gucaban; GR
No. 153982) The complainant was dismissed outright, without any
chance to defend herself and for reasons that are neither just nor
authorized. The way that she was terminated was very humiliating
and her termination caused the complainant to worry about her lost
income;
25.The complainant is also entitled to attorney’s fees for the expenses
she has incurred in filing this suit;
PRAYER
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WHEREFORE, premises considered, it is most respectfully prayed of
this Honorable Office that after due consideration of this case, judgment be
rendered and:
Declare that the complainant was illegally dismissed;
Order the respondents to solidarily pay the complainant separation
pay, 13th month pay, overtime pay, damages, and attorney’s fees; and
Such other reliefs that are just and equitable are likewise prayed.
San Fernando City, La Union. _______________.
JAN-RAY VINCENT D. CALDERON
Counsel
Roll of Attorneys No. 71367
IBP No. 039653; May 9, 2018
PTR No. 1150120; June 8, 2018
Issued at San Fernando City, La Union
Copy furnished
JAMPZ CANTEEN
ITRMC, Sevilla, San Fernando, La Union
NOVELYN MARIANO
Zone 4, Tanqui, Gabaldon
San Fernando City, La Union
