Republic of the Philippines
NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. V
Quezon City
RAMONCITO DIAZ,
Complainant, RAB VIII Case No. 01- 00005 - 11
-versus-
SAN SEBASTIAN SECURITY SERVICES, INC.,
FELIX RESURRECCION, Operations Manager
Respondents.
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POSITION PAPER
COMPLAINANT by the undersigned counsel and unto this Honorable
Labor Arbitration Office, most respectfully submits this position paper and
avers the following to wit:
THE PARTIES
The Complainant in this case is RAMONCITO DIAZ (hereinafter referred
to as Complainant Diaz), of legal age, Filipino, married, with residence at 28
Luzon Ville Congressional Ave. Ext., Brgy Culiat, Quezon City where he
could be served with summons and other legal processes of this Honorable
Office.
Respondent SAN SEBASTIAN SECURITY SERVICES INC. (hereinafter
referred to as respondent SSSSI) is a Philippine corporation operating as a
private security agency with business address at 1853 E. Rodriguez Sr.
Blvd., Cubao, Quezon City, where the said corporation could be served with
summons and other legal processes of this Honorable Office.
Respondent FELIX RESURRECCION (hereinafter referred to as respondent
Resurreccion) is the Operation Manager of respondent SSSSI. He is of legal
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age, Filipino and with office address at 1853 E. Rodriguez Sr. Blvd., Cubao,
Quezon City where she may be served with notices, orders and resolutions
of this Honorable Labor Arbitration Office.
STATEMENT OF FACTS
1. Complainant Diaz is one of four (4) security guards stationed at Times
Paint, a paint factory located in Novaliches, Quezon City. He is
assigned to the night shift; each shift has two guards.
2. He has been stationed at Times Paint since January 9, 2009.
3. Each guard in the Times Paint detachment is in possession of a
firearm that he must wear on his person at all times. The detachment
at Times Paint thus has two (2) firearms, one per guard per shift. At
the end of each shift, the guards have to physically endorse and turn
over the firearms to the guards on the next shift, and such turn-over
must be duly recorded in the logbook of the detachment.
4. At around 6 a.m. of May 8, 2018, Security Guard (SG) Jerry Villarin,
the Officer-in-Charge of the Times Paint detachment, reported to
SSSSI’s Duty Officer SG Joseph Balonso that the two (2) service
firearms assigned to the Times Paint detachment, namely SB 1020624
and Armscor 26091 (both handheld .38 caliber firearms) were
missing. However, none of the guards of the detachment—SG
Villarin, SG Elmer Santos, Complainant Diaz, and SG Jessie Salcedo
—knew how the firearms were lost.
5. SSSSI immediately sent its Operations Manager, herein Respondent
Resurreccion, to the Times Paint premises to conduct an investigation.
Diligent search of the premises, however, could not turn up the
firearm. A review of the CCTV footage of the premises did not show
any suspicious activity around the guard detachment by the gate of the
Times Paint factory. Respondent Resurreccion took the logbook of the
detachment and together with Complainant Diaz reported the loss of
the firearms to the nearest police station. The Police Report found that
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“x x x according to the CCTV footage, when reviewed by the San
Sebastian Security Agency management, they found out that there was
no entry of stranger into their compound and only the four
suspects/security guards were there during their tour of duty.
Probably the said suspects through aiding and conspiring with one
another and with grave abuse of trust and confidence took/stole the
said articles involved and pretended that the two (2) firearms was
lost.”
6. Later in the day, Respondent Resurreccion summoned all four guards
to the SSSSI office. All four guards were given a notice to explain
the loss of the firearms. All four guards submitted their explanations
on the same day. The explanation of Complainant Diaz indicates that
the last time any of them saw the firearm was on May 3, 2018, during
turn-over from the night shift (SG Diaz and Salcedo) to the day shift
(SG Villarin and Santos). The said firearm was noted missing from
the box in the drawer where it had been kept; but that the loss was
finally reported to the office only on May 8, 2018.
7. A review of the logbook of the Times Paint post indicates that entries
therein directly contradicted the explanations of the guards. Said
logbook entries indicate that the said firearms were physically turned
over successively from one shift to the other until 5:00PM of May 6,
2018, when the loss of the firearms was first noted. The logbook
entries were also made and signed by the subject guards themselves.
The guards’ explanations that the firearms were last seen on May 3,
and found lost on May 7, was thus contrary to their earlier written
statements in the logbook on two points: (a) that the firearms were lost
on May 7; contrary to the logbook entries which show that the
firearms were noted lost in fact a day earlier, or on May 6, and (b) that
they last saw the firearms on May 3, contrary to the logbook entries
that indicate that the said firearms were turned over from shift to shift
until May 6 when its loss was first noted.
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8. Suspecting that the guards were lying—given the contradictions in the
logbook and their statements—Respondent Resurreccion on May 8
spoke separately with herein Complainant Diaz, who was the most
senior security guard in the detachment, to ask him what he knew
about what happened and to encourage him to tell the truth. But
Complainant Diaz stubbornly stuck to his story and said that they all
did not know how the firearm got lost.
9. On May 10, 2018, all four guards were preventively suspended by
SSSSI. A second search of the premises was conducted by SSSSI
officers on May 12, 2018, and interviews with Times Paint personnel,
did not yield any results, nor were there any leads given the lapse of
time between the alleged loss and the time it was reported to the
SSSSI office.
10.On May 21, 2018, SSSSI, after reviewing their explanations,
summoned all four guards to a conference at the SSSSI office to
confront them with the evidence and the contradictions between their
explanations and the logbook. All the guards attended except SG
Santos, who had earlier filed leave to go home to the province
supposedly for family matters. During the conference, the following
facts were uncovered:
a. SG Diaz, Villarin and Salcedo, when confronted with the
inconsistencies between their explanations and their detachment
logbook, all claimed that they really were not physically turning
over the firearms from shift to shift and only noting the turn-
over in the logbook; in actuality, the firearms were kept in an
uncovered tin box in an unlocked drawer within the
detachment, and that none of them were really checking on the
firearms until SG Villarin finally noticed they were gone on
May 6.
b. They all supposedly agreed not to report the loss first to try to
find the firearms on the premises, but they could not find it, and
finally decided to own up to the loss only on May 8.
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c. When asked why the firearms were stored in a box and not
worn on their person during their duty as they should have, they
uniformly claimed that they thought that the COMELEC Gun
Ban (in force at the time due to the upcoming Barangay
Elections) prohibited them from carrying their guns. As
Respondent Resurreccion emphasized to them, however, in
fact, there was no such prohibition on security guards, and no
such instruction from SSSSI not to wear their firearms on their
person during this time.
11.After a careful review of all the facts of the case, SSSSI issued the
guards a Notice of Termination and terminated their employment,
with forfeiture of all benefits.
ISSUES
1. WHETHER OR NOT THE COMPLAINANT WAS ILLEGALLY
DISMISSED.
2. WHETHER OR NOT COMPLAINANT IS ENTITLED TO
SERVICE INCENTIVE LEAVE PAY, HOLIDAY PAY, REST
DAY PAY AND OVERTIME PAY.
FIRST ISSUE: (Illegal Dismissal)
From the foregoing facts, it is clear that the dismissal of the
complainant was illegal. No procedural due process was accorded to him
prior to his termination from service.
Insofar as the procedural due process is concerned, Article 277 (b) of
the Labor Code specifically requires the employer to furnish the worker or
employee sought to be dismissed with two written notices, i.e., a notice
which apprises the employee of the particular acts or omission for which his
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dismissal is sought, and a subsequent notice which informs the employee of
the employer’s decision to dismiss him (Kiamco vs. NLRC, G.R. No.
129449, June 29, 1999). In order to validly dismiss an employee, the
observance of both substantive and procedural due process by the employer
is a condition sine qua non. Procedural due process requires that the
employee be given a notice of the charge against him, an ample opportunity
to be heard, and a notice of termination. (Sang-An vs. Equator Knights
Detective and Security Agency, Inc., G.R. No. 173189, February 13, 2013)
In addition, it must be borne in mind that the basic principle in
termination cases is that the burden of proof rests upon the employer to show
that the dismissal is for just and valid cause, and failure to do so would
necessarily mean that the dismissal was not justified and, therefore, was
illegal (Polymedic General Hospital v. NLRC, G.R. No. 64190, January 31,
1985). Furthermore, it is well-settled that to constitute a valid dismissal, two
(2) requisites must concur: (1) that the dismissal was for any causes under
Article 297 of the Labor Code, and (2) the employee must have been
accorded due process. (RDS Trucking v. NLRC, G.R. No. 123941, August
27, 1998)
In the instant case, the first requirement is absent. The first notice
given to the complainant was merely a notice to explain the loss of the
firearms. It was not the first notice as required by law which should state that
the company is seeking the employee’s dismissal accompanied by the
particular acts or omissions for which his or her dismissal is sought.
Furthermore, under Republic Act No. 7166, Sec. 32 provides for the
persons who may bear firearms, particularly, it states that:
"Sec. 32. Who May Bear Firearms. - During the election period, no person shall bear,
carry or transport firearms or other deadly weapons in public places, including any building,
street, park, private vehicle or public conveyance, even if licensed to possess or carry the same,
unless authorized in writing by the Commission. The issuance of firearms license shall be
suspended during the election period.
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Only regular members of the Philippine National Police, the Armed Forces of the
Philippines and other law enforcement agencies of the Government who are duly deputized in
writing by the Commission for election duty may be authorized to carry and possess firearms
during the election period: Provided, That, when in the possession of firearms, the deputized law
enforcement officer must be: (a) in full uniform showing clearly and legibly his name, rank and
serial number, which shall remain visible at all times, and (b) in the actual performance of his
election duty in the specific area designated by the Commission."
In the present case, Complainant was clearly not one of those
mentioned under the exceptions provided by the law. The Complainant was
only complying under the Gun Ban resolution imposed by the Comelec to
avoid any criminal liability.
Assuming arguendo, that Complainant was allowed to bear firearms,
his non-compliance with such duty was done in good faith because of the
prohibition set by law.
Finally, it was SG Santos who took the firearm. As presented in the
Exhibit A, the CCTV provides that it was always SG Santos who took time
to look towards the uncovered tin box where the firearms were kept. His
non-appearance when they were requested to be summoned, was a proof that
he does not want to testify to the prejudice of the Complainant. SG Santos,
who, was a long-time friend of the Complainant which was prior to their
bitter-end quarrel over a parcel of land, told the Complainant that he is the
rightful owner and he’ll kill him if he’ll continue to bother him.
SECOND ISSUE: (SERVICE INCENTIVE LEAVE PAY, HOLIDAY
PAY, REST DAY PAY, OVERTIME PAY)
As to the entitlement of service incentive leave pay, rest day pay and
holiday pay premiums, the Complainant believes that he is entitled to the
same just like all other regular employees and as guaranteed by the Labor
Code of the Philippines. The complainant was deprived of these benefits.
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When a dismissal is without just or authorized cause and there was no
due process, it is mandated that the employee is entitled to reinstatement and
without loss of seniority rights and other priviliges and full backwages,
inclusive of allowances, and other benefits or their monetary equivalent
computed from the time the compensation was not paid up to the time of
actual reinstatement. [Agabon v. NLRC, GR. No. 158693, November 17,
2004] Assuming arguendo that Complainant was terminated for just cause,
but still remains the fact that the “twin-notice rule” has not been complied
with, hence the due process requirement was not observed, the employer
should be held liable for non-compliance with the procedural due process
requirements. [Agabon v. NLRC, supra.]
PRAYER
WHEREFORE, premises considered, it is most respectfully prayed
of this Honorable Labor Arbiter, that decision be rendered, to wit:
1. Declaring the termination of the herein Complainant as
illegal.
2. Ordering the Respondent to pay to the Complainant his
SERVICE INCENTIVE LEAVE PAY, HOLIDAY PAY, REST
DAY PREMIUM PAY, OVERTIME PAY and all other benefits
due to him.
3. Furthermore, it is likewise prayed unto the Honorable
Labor Arbiter to order the Respondent to pay the herein
Complainant nominal damages in the amount of Php 10,000.00
for not affording to the complainant the procedural due process,
the amount of Php 100,000.00 as moral damages and the amount
of Php 50,000.00 as exemplary damages.
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Other reliefs just and equitable under the premises are also prayed for.
RESPECTFULLY SUBMITTED.
Quezon City, March 26, 2021.
The PUBLIC ATTORNEY’S OFFICE
(Counsel for the Complainant)
Quezon City District Office
Bulwagan ng Katarungan
Magsaysay Blvd., Quezon City
By:
JENN T. DOE
Public Attorney II
Roll of Attorney’s No. 47026
IBP No. 64974
MCLE Compliance No. III - 657030
(January 6, 2019)
Copy furnished: (through Registered Mail)
VELMA M. MATAMOROSA Registry Receipt No.
0469
Counsel for Respondent Date Mailed: March 27, 2021
B&B Law Office
Esteban Abada Street
Quezon City
EXPLANATION
The foregoing POSITION PAPER and its attachment were served on
VELMA M. MATAMOROSA by registered mail instead of personal service
as counsel for SAN SEBASTIAN SECURITY SERVICES, INC. AND
FELIX RESURRECCION.
(signature)
JENN T. DOE
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VERIFICATION
Republic of the Philippines )
City of Quezon. ) s.s.
COMPLAINANT, after having been duly sworn in accordance with law,
deposes and states that:
1. He is the complainant in the document;
2. He has caused its preparation;
3. He has read it and the allegations therein are true and correct of his
own knowledge or based on authentic records.
(signature)
JENN T. DOE
SUBSCRIBED AND SWORN TO BEFORE ME, a notary public in
and for Quezon City this 26th day of March 2021. Affiant personally came
and appeared with Driver’s License No. EO4-25-69296 issued by the Land
Transportation Office (LTO) on March 27, 2019 at Quezon City, bearing his
photograph and signature, known to me as the same person who personally
signed the foregoing instrument before me and avowed under penalty of law
to the whole truth of the contents of said instrument.
ATTY. MANUEL G. BRAZAL
Roll No. 2018-80005
IBP No. 3562967-4/5/22
PTR No. 468385-4/5/22; Quezon
Doc No. ___
Page No. ___
Book No. ___
Series of 2021
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EXHIBIT A
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