Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. III
City of San Fernando, Pampanga

JIMBIM PATRIARCA DE LEON

Complainant,

-versus- NLRC CASE NO. RAB III-09-30325-19

FCF Manufacturing Corporation

Mr. Duncan Miao, President
Mr. Lap Wang Michael Ting, VP-Finance
Karlok Wong, IT Director
Rex Francine Ferrer, HRA Director
Respondents

POSITION PAPER FOR THE COMPLAINANT

Complainant, by HIMSELF, unto this Honorable Office, most respectfully

submits this Position Paper, and in support thereof states:

PREFATORY STATEMENT

The managerial prerogative to transfer personnel must be exercised

without grave abuse of discretion, bearing in mind the basic
elements of justice and fair play. Having the right should not be
confused with the manner in which that right is exercised. Thus, it
cannot be used as a subterfuge by the employer to rid himself of an
undesirable worker. In particular, the employer must be able to
show that the transfer is not unreasonable, inconvenient or
prejudicial to the employee; nor does it involve a demotion in rank
or a diminution of his salaries, privileges and other benefits. Should
the employer fail to overcome this burden of proof, the employee's
transfer shall be tantamount to constructive dismissal.

STATEMENT OF FACTS

1. Complainant JIMBIM PATRIARCA DE LEON (JIMBEAM for Brevity), was 29

years old, Filipino, and residing at Barangay Poblacion, Mariveles, Bataan

2. The respondents in this case are the following:

(a) FCF Manufacturing Corporation (corporate employer);

(b) Mr. Duncan Miao, owner, President, FCF Manufacturing Corporation &
FPF Corporation
(c) Mr. Lap Wang Michael Tung, VP Finance of FCF Manufacturing Corp.&
FPF Corporation
(d) Mr. Karlok Wong,IT Director, FCF Manufacturing Corp. & FPF
Corporation
(e) Rex Francine Ferrer, Director of Human Resource and Administration,
FCF Manufacturing Corporation & FPF Corporation.
They hold office at 11 th Avenue, FAB, Brgy. Maligaya, FAB, Mariveles,
Bataan.

3. Complainant was a regular Senior IT Officer of the respondent at the

time of his dismissal.

4. Complainant was hired by the Respondent/s on May 16, 2014, as Junior

IT Officer.

5. Complainant started with a monthly salary of 12,000 and was also paid
13th Month Pay of P12,000 per annum.
6. His latest monthly salary amounted to P40,000/month, The breakdown
of payment was as follows:
Basic 13th Month pay
FCF 28,000.00 28,000.00
FPF 12,000.00 12,000.00
7. He was also provided reimbursements as stated in his FPF Contract.

8. See the following documents in support of the foregoing statements:

· Annex “A” – To support statement Number 6.

· Annex “B” – To Support statement Number 7

9. The complainant was a regular employee of the respondent when he

was constructively dismissed, where he served the respondent company
from 2014 to 2019.

10. The Respondent Organizational chart show and describe the

complainant’s job and scope of management. Attached herewith is photo
copy of Organizational chart which provided by complainant’s superior and
HR both via electronic mail marked as “Annex C”.

11. The Respondent’s duty and responsibility which is set forth by his
superior shows his equally and the same functions and task for both FCF
Manufacturing Corporation and FPF Corporation. Attached on this is the copy
of Duties and Responsibility. All evidential documents to this was marked as
“Annex D”

12. In Addition to those tasks, the complainant is also task to handle

SYSTEM ADMINISTRATOR’S banking functions and online transactions for
both FCF Manufacturing Corporation and FPF Corporation. Attached are the
documents and bank confirmation emails of competed transactions marked
as “Annex E”.
13. The complainant resigned involuntarily due to unfair treatment and
discrimination to him by the respondents which is described with these
series of events:

a. It all started when Annual Performance Evaluation for 2019 came out.
The complainant asked for the results of his evaluation but Mr. Karlok
Wong simply said that the respondent has no evaluation because he
failed. The complainant still insisted that performance evaluation
should be given even if he seemed to fail so Action Plan for Areas of
Improvement could be discussed but Mr. Karlok Wong still did not
provide any written result. Evidence for this was attached as “Annex
F”
b. Being a Senior Officer, the complainant was stationed inside THINKING
ROOM where he shared the room with Luther Jay April Movera, also a
senior officer and Karlok Wong, one of the respondents. Karlok Wong
instructed the complainant to find a new space inside the general
office and move out from Thinking Room. This instruction was
mentioned in the WeChat Group where all the junior officers are also
included. The complainant felt embarrassed knowing that all their
junior officers was able to read these shameful instructions to their
senior officer. Communication thread on this scenario was attached,
marked as “Annex G”.
c. The complainant later found out that a new schedule for IT
Team has been rolled out and approved by Karlok Wong. The
complainant was not in the planned schedule and no communication to
the Complainant even thru email that he no longer has any schedule to
work out his role. His role is now being performed by his
subordinate, very clear, Complainant was place in a FLOATING
STATUS by the respondent, Email was attached as “Annex H”.
d. In September, Karlok Wong served a notice of termination of the
complainant’s contract under FPF Corporation stating that his services
are no longer needed. The complainant signed the letter with
objection because he knows and agreed before entering to the
consultancy agreement that his FPF Consultancy Pay is a salary
package with FCF Manufacturing Corporation where his duties and
responsibilities are equally the same. Thus, there was an email thread
where Mr. Michael Tung agreed that this arrangement was only to get
rid of much tax deductions.“Annex I”

The complainant also suffered much stress when HR department

issued him a NTE all at one time. The alleged attendance infractions
were as long as January upto June and was only served in July. When
HR Department issued a suspension order, the complainant countered
a statement saying that sanctions for attendance infractions, if true,
must be served right away not after a few months ago. The suspension
letter was not taken back by HR and left the complainant of sleepless
nights thinking if what does the HR Team and Karlok was planning
against him. “Annex J”

Same period of attendance infractions was once again served to the

complainant but this time, with the alleged tampering of timekeeping
data. This time, instead of suspension, the sanction will be termination.
The complainant and the HR Team had a hearing once again and the
complainant denied all the allegations saying that he does not handle
attendance checking and filing. This triggered the complainant to file
 an involuntary resignation because he believed that he does not
deserve all these shameful and hurtful allegations about him and his
past encounters with Karlok Wong was unbearable. He also believed
that with HR’s actions towards him, his issue with Karlok Wong will
never be resolved.
“Annex K”

After his involuntary resignation, Ms. Bessie Gaddi said Mr.

Rex Francine Ferrer has to confirm if he can sign the complainant’s
clearance. The complainant sent a WeChat message to Mr. Ferrer and
said that he has instructions to hold the signing of complainant’s
clearance due to possible settlement. After the second mandatory
conference on October 28, 2019 and no settlement was reached.
“Annex L”

14. Aggrieved and helplessly wounded, he tried to resolve the issues and
his requests to DOLE’s SENA. After one month of discussion, the
management still doesn’t come up to a settlement.

The complainant, for almost half a year suffered humiliation, helplessness,

wounded feelings and worried sleepless nights. He was very adamant not to
lose his job which serves as hisprimary source of income for a living.

X. Humiliation- when he was denied of evaluation, denied of

work schedule and sent out of Thinking Room when all his
subordinates could read these shameful instructions.
xx. Helplessness- he tried so hard and so many times to seek
HR’s assistance to resolve his case but was mishandled and not
helping at all in processing his clearance.
xxx. Wounded feelings-All his duties was transferred to his
subordinates without any notice to him
xxxx. Worried Sleepless Nights- he knows for a fact that
these series of events will eventually cause him to lose his job
which for so many years, he tried so hard to do diligently.
15. Finally, after having sought to resolve this matter to DOLE’s SENA and
the company’s management, he filed a Constructive Dismissal complaint to
NLRC. The two conciliatory meeting was again proved to be futile and that
made her to decide to finally accept the fact that these issues will no longer
be resolved with his employer, thus he tendered his resignation on Oct. 7,
2019.And the honorable Labor Arbiter directed him to submit his Position
Paper.

ISSUES

I. WHETHER OR NOT THE COMPLAINANT WAS

CONSTRUCTIVELY/ILLEGALLY DISMISSED;

II. WHETHER OR NOT THE COMPLAINANTIS ENTITLED TO HER

MONETARY CLAIMS;

III. WHETHER OR NOT THE COMPLAINANTIS ENTITLED TO

MORAL AND EXEMPLARY DAMAGE
 IV. WHETHER OR NOT THE COMPLAINANTIS ENTITLED TO
ATTORNEYS FEE

ARGUMENTS / DISCUSSION

16. First, COMPLAINANT was being put into shame and humiliation
when his supposed Performance Appraisal was use to insult and
tarnish his reputation.

Second, the HR Department ignored the fact that the employee

has no evaluation at all when in fact, they are the one to elect
the true sense and importance of performance evaluation.
More so did not observe his any of the substantial and
procedural rights on placing complainant under FLOATING
STATUS.

17. Crystal clear, Complainant was being demoted and place on a

Floating Status without any Notices. Under the doctrine of management
prerogative, every employer has the inherent right to regulate, according to
his own discretion and judgment, all aspects of employment, including hiring,
work assignments, working methods, the time, place and manner of work,
work supervision, transfer of employees, lay-off of workers, and discipline,
dismissal, and recall of employees. The only limitations to the exercise
of this prerogative are those imposed by labor laws and the
principles of equity and substantial justice.

In effect, COMPLAINANT OPTED TO RESIGN INVOLUNTARILY, JIMBIM

clearly states all his effort to be heard as he was on FLOATING
STATUS and was just force to give up his position. In the case of
Mariphil L. Sales vs. ICT Marketing Services, Inc. (ICT) - The
managerial prerogative to transfer personnel must be exercised
without grave abuse of discretion, bearing in mind the basic
elements of justice and fair play. Having the right should not be
confused with the manner in which that right is exercised. Thus, it
cannot be used as a subterfuge by the employer to rid himself of an
undesirable worker. In particular, the employer must be able to
show that the transfer is not unreasonable, inconvenient or
prejudicial to the employee; nor does it involve a demotion in rank
or a diminution of his salaries, privileges and other benefits. Should
the employer fail to overcome this burden of proof, the employee's
transfer shall be tantamount to constructive dismissal.

While the law imposes many obligations upon the employer, nonetheless, it
also protects the employer's right to expect from its employees not only
good performance, adequate work, and diligence, but also good conduct and
loyalty, hi fact, the Labor Code does not excuse employees from complying
with valid company policies and reasonable regulations for their governance
and guidance.

Concerning the transfer of employees, these are the following jurisprudential

guidelines: (a) a transfer is a movement from one position to another of
equivalent rank, level or salary without break in the service or a lateral
movement from one position to another of equivalent rank or salary; (b) the
employer has the inherent right to transfer or reassign an employee for
legitimate business purposes; (c) a transfer becomes unlawful where it is
motivated by discrimination or bad faith or is effected as a form of
punishment or is a demotion without sufficient cause; (d) the employer must
be able to show that the transfer is not unreasonable, inconvenient, or
prejudicial to the employee.[42]

18. While the prerogative to transfer and to assign work load and
duties belonged to FCF Management. The evidence suggests that at
the time his work load was transferred to another staff, the HR and
his superior did not notify him or no any explanation was made. He
was just surprised and humiliated that he found out that the task he
was assigned to was already been transferred to his inferiors.
Transferring his task when in fact he was an experienced employee
who was already familiar with the overall duties of the company,
and who even proved to be outstanding in handling the same - to
another staff means this action was unlawful and was motivated by
discrimination and bad faith and tantamount to demotion without
sufficient cause.

a. There was a clear diminution on his salaries and benefits-

While it is true that there can be no double employment as the
management’s claimed maybe, it is clear that FCF
Manufacturing Corp and FPF Corporation poses exactly the
same management, thus cannot argue of any of him conflicting
interest while working on the two companies under the same
industry. Another thing is that, as mentioned, it is a
management prerogative to assign work load and method thus,
assigning his to also handle FPF Corporation's Business Process
was clearly, their own direction and not his.

I. WHETHER OR NOT THE COMPLAINANTIS ENTITLED

TO HIS MONETARY CLAIMS;

Based on the above-discussion, it has been established that

Complainant was Constructively dismissed by the Respondents. Hence, an
award of backwages is proper from the time of her illegal dismissal, up to
the finality of this case.

19. It is also evident that the Complainant and Respondents have strained
relations. Hence, it is likewise prayed that separation pay in lieu of
reinstatement be awarded in the case at bar.

20. The complainant is also entitled to her service incentive leave for the
year 2019 to present, the amount of proportionate 13 th month pay for the
year 2019 as mandated by law and the sales commission of the Complainant
.

The Complainant is praying for the following monetary claims:

i. Under payment of her salary from August 2019 up to

November 2019 in the amount of 80,000.000
ii. 13th month pay in the amount of 40,000.00
iii. Separation pay in lieu of reinstatement
iv. Backwages from the time of his constructive dismissal up to
finality of this case
v. Moral and exemplary damage of 500,000 pesos each.
 vi. Attorney’s fee.

On the issue of Damages

It is evident that the demotion and removal of complainant was tainted by

bad faith on the part of the respondents. The respondents failed to observe
the substantial and procedural due process requirements of the law.

The complainant suffered sleepless nights and anxiety, having lost his job
which is his ONLY source of livelihood. As such, this humble complainant
prays that the Honorable Labor Arbiter penalize the respondents with Moral
Damages.

Exemplary damages are imposed by way of example or correction for the

public good. The law allows the grant of exemplary damages in cases such
as this to serve as a warning to the public and as a deterrent against the
repetition of this kind of deleterious actions. Hence, it is most respectfully
prayed that the Honorable Labor Arbiter award Exemplary Damages.

On the issue of attorney’s fees

Because of the illegal termination committed by the respondents, the

complainant was constrained to hire the services of a lawyer to protect his
rights and seek relief from the injustices he suffered in the hands of his
employer. Hence, an award of attorney’s fees is also proper in the case at
bar.

Finally, we close with an excerpt from the Supreme Court, through the
eloquent pen of then Justice Isagani Cruz, in the case of Cebu Royal Plant
San Miguel Corp vs. Minister of Labor, G.R. No. L-58639, 12 August 1987,
wherein the Supreme Court emphatically stated:

“The Supreme Court reaffirms its concern for the lowly worker
who, often at his employer’s mercy must look up to the law for
his protection. The law regards him with tenderness and even
favor and always with faith and hope in his capacity to help
shaping the nation’s future. He must not be taken for granted.
He deserves abiding respect. How society treats him
determines whether the knife in his hands shall be a caring
tool for beauty and progress or an angry weapon of defiance
and revenge. If we cherish him as we should, we must resolve
to lighten “the weight of centuries” of exploitation and disdain
that bends his back but does not bow his head.”

PRAYER

WHEREFORE, premises duly considered, it is most

respectfully prayed that the Honorable Labor Arbiter RULE that
Complainant JIMBIM was CONSTRUCTIVELY dismissed and ORDER
the Respondents, jointly and severally, to pay the Complainant his
monetary claims.
 Other reliefs just and equitable are likewise prayed for under
the circumstances.

San Fernando City, 7 NOVEMBER 2019

Conformed:

___________________________________________
JIMBIM PATRIARCA DE LEON
Complainant

Assisted by:

______________________________________________________
CHRISTIAN A. OCAMPO
Regional Coordinator, Region III
National Federation of Labor
9350-FED-LC

COPY FURNISHED

FCF MANUFACTURING CORP

AFAB, Mariveles, Bataan