Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch
Cordillera Administrative Region
Baguio City
CONCEPCION C. DELICO,
Complainant,
-vs- NLRC CASE NO. RAB-CAR-02-0071-11
INTERNATIONAL MASTERS OF
ENGLISH CENTER, INC., SUNG
MIN KIM, General Manager and
FRANCISCA TARYACHEN,
Respondents,
x----------------------------------------------x
COMMENT TO RESPONDENTS’
POSITION PAPER
Complainant, through counsel, respectfully submits her comment to
respondents’ position paper which she received on April 29, 2011, thus:
Complainant’s alleged resignation letter was
not a letter of intent from complainant to
relinquish her position but a mere expression
of abhorrence due to indifferences between
her, some of her co-teachers and the
respondents which transpired prior to
February 5, 2011.
As presented by respondents, the alleged resignation letter is again reproduced
in whole as follows:
“February 5, 2011
Mr. Sung Min Kim
General Manager
International Masters of English Center
(IMEC) Quezon Hill, Baguio City
We cannot learn from one another until we stop shouting at one another –
until we speak quietly enough so that our words can be heard as well as
our voices. Please accept this letter of resignation effective March 15,
2011.
For almost one year of teaching here, I have shared and learned things. I
have tried to the best of my ability to discharge those duties and meet those
responsibilities that were entrusted to me. To have served in this academy
is to have felt a personal sense of kinship with both Filipinos and Koreans.
In leaving it, I do so with this prayer: May God’s grace be with you in all
the days ahead.
Respectfully Yours,
Concepcion Capuyan Delico”
Glancing at the above letter, it is transparent that it is an articulation of loathing
which complainant experienced with her co-workers and with respondents. This
indifference which commenced from “gossips” affected her personal character and
family.
When complainant could no longer bear this conflict, she submitted the letter
dated February 5, 2011.
Nevertheless, the disparity between her, her co-teachers and respondents was
resolved, the reason why she continued with her employment which was acceded by
respondents.
It is obvious that the letter is confrontational in approach and a demonstration of
anger especially the contents of its first phrase, to wit:
“We cannot learn from one another until we stop shouting at one another
– until we speak quietly enough so that our words can be heard as well as
our voices. Please accept this letter of resignation effective March 15,
2011.”
The second phrase, which says -
“For almost one year of teaching here, I have shared and learned things. I
have tried to the best of my ability to discharge those duties and meet those
responsibilities that were entrusted to me. To have served in this academy
is to have felt a personal sense of kinship with both Filipinos and Koreans.
In leaving it, I do so with this prayer: May God’s grace be with you in all
the days ahead.”
is but a message of peace which complainant, being a member of the Christian
community, would like to impart to respondents.
As mentioned above, the conflict was resolved. Unfortunately, complainant
could not submit the documents relative to the resolution as it is in the possession of the
respondents.
All the same, had respondents accepted the alleged resignation, they should
have submitted proof to bolster their argument of acceptance. There was no formal
acceptance made. It was merely mentioned in their position paper that they accepted
the alleged resignation.
In addition, it is preposterous and outlandish for complainant to have allegedly
filed a resignation letter then file a complaint for illegal dismissal afterwards.
The above facts are similar to that case of Molave Tours Corporation vs. NLRC, et.al,
G.R No. 112909, 24 November 1995 where the Supreme Court held, that:
“The fact that the garage custodian immediately filed a complaint
for illegal dismissal against the company and repudiated his
alleged resignation completely negates the claim that he voluntarily
resigned, since by vigorously pursuing the litigation of his action
he clearly manifested that he has no intention of relinquishing his
employment”.
In the case of Fortuny Garments vs. Castro, 478 SCRA 125, the Supreme Court said:
“If the employer introduces evidence purportedly executed by and
employee as proof of voluntary resignation and the employee
specifically denies the authenticity and due execution and
genuineness of such document.
Voluntary resignation is difficult to reconcile with the filing of a
complaint for illegal dismissal.”
Again, in the case of Fungo vs. Lourdes School of Mandaluyong, 528 SCRA 248, the
Supreme Court pronounced that:
“Resignation is the voluntary act of employees who are compelled
by personal reasons to disassociate themselves from their
employment; it must be done with intention of relinquishing an
office accompanied by the act of abandonment; Resignation is
inconsistent with the filing of complaint”.
Thus, it is clear that complainant did not relinquish her position or terminate her
employment.
As mentioned in our position paper, complainant was illegally dismissed
through text messages from respondent Taryachen when she got late for work on
February 11, 2011.
Complainant is a regular and not a
probationary employee under the manual for
private schools issued by the Department of
Education.
As mentioned in our position paper, complainant is not a contractual employee
since she performed worked which was usually necessary or desirable in the usual
business of the respondents.
The contract of employment which complainant was made to sign monthly is a
contract of adhesion which is frowned upon by our constitution and present laws.
In the case of Phil. Federation of Credit Cooperatives v. NLRC, 300 SCRA 72, 11
December 1998, the Supreme Court has this to say, to wit:
“The present employment contract entered into initially provides
that the period of employment is for a fixed period. However, the
succeeding provisions contradicted the same when it provided that
respondent would be under probationary status. Given the
ambiguity in the contract, and following the pronouncement in
Villanueva v. NLRC (10 Sept. 1998), where a contract of
employment, being a contract of adhesion, is ambiguous, any
ambiguity therein should be construed strictly against the party
who prepared it. Furthermore, all labor contracts should be
construed in favor of the laborer, pursuant to Article 1702 of the
Civil Code.”
Respondents are violating government
agencies’ rules and regulations.
Also, respondents mentioned in their position paper and indicated in the
employment contract that the clause of probationary employment is in line with the
Manual for Private Schools issued by the Department of Education (DEP-ED). We
challenge this contention and we are asking respondents to submit proof that they are
issued a government permit by the DEP-ED to operate a private school.
In the same vein, it is also worth mentioning that complainant and the present
IMEC employees were not paid their respective 13 th month pays. They were not also
registered by respondents as their employees at the Office of the Social Security System
(SSS), PHILHEALTH and PAG-IBIG. A wanton disregard by respondents of the law
providing that all employees should be registered in the foregoing government
agencies.
Thus, it is respectfully submitted that this Honorable Office issue a subpoena
duces tecum for respondents to negate these allegations and to submit proof that they
have the mandatory government permit to operate a private school, to show proof that
their employees are registered at the Office of the Social Security System (SSS),
PHILHEALTH and PAG-IBIG and to present documents that their employees are being
paid their respective 13th month pays.
PRAYER
WHEREFORE, it is most respectfully prayed unto this Honorable Office that
after due consideration of the foregoing, a decision should be issued declaring
complainant to have been illegally dismissed from employment and order respondent
to:
1. Pay complainant her separation in lieu of reinstatement;
2. Pay Complainant her full backwages and other benefits from the time of her
dismissal up to the finality of this case; and
3. Pay Complainant reasonable moral and exemplary damages plus 10% of the
total award as attorney’s fees.
Other relief just and equitable under premises are also most respectfully prayed
for.
Respectfully submitted this __ day of May 2011 in Baguio City.
BASA BALAGTEY LAW OFFICES
1 Floor Abriol Bldg., Benetiz Court Compound,
st
Magsaysay Avenue, Baguio City
by:
MILTON L. BALAGTEY
IBP NO. 841036/01-08-11/Baguio City
PTR NO. 0483687/01-08-11/Baguio City
ROLL NO. 45247/05-08-00
MCLE Compliance No. III-0000794
Copy furnished:
ATTY. DONNA MARIE M. CAJIGAN-DAOAS
Counsel for the respondents
Rm. 210, Narda’s Commercial Bldg.
Km. 5, La Trinidad, Benguet
EXPLANATION
(Pursuant to Section 11, Rule 13, 1997 Rules of Civil Procedure)
A copy of the foregoing comment to respondents’ position paper was served to
the counsel for the respondents through registered mail due to lack of office personnel,
time constraints and impracticability of personal service.
MILTON L. BALAGTEY
