Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION Regional Arbitration No.

08 Tacloban City

MARIA TERECEL P. ARCALLANA, Complainant, -versusNLRC Case No.0409 SAN ROQUE MARKETING/MARTHA LIM Respondents. x----------------------------------------------------x POSITION PAPER FOR THE COMPLAINANT COMPLAINANT, through counsel, to this Honorable Office, most respectfully states: STATEMENT OF CASE This is complaint for illegal dismissal and non-payment of one month salary, overtime pay and holiday pay, failure to pay by the Employer of the SSS monthly contribution which automatically deducted in their payroll, and damages filed by the complainant Maria Terecel P. Arcallana. STATEMENT OF FACTS

1. Respondent SAN ROQUE MARKETING is a business establishment engaged wholesaler/retailer and distributor of rice and grocery items province wide and principal office located at San Roque St., Brgy.04, Catbalogan City.

2. Respondent MARTHA LIM is of legal age and the owner-manager the respondent business establishment.

Re: COMPLAINANT Maria Terecel P. Arcallana

1. Complainant Maria Terecel P. Arcallana is of legal age, single, Bachelor of Elementary Education Graduate and of good standing in the community. She was hired by the respondent as CHECKER in January 2011 and because of her dedication, diligence and competence was promoted as CASHIER after three months of service.

2. On April 2011, complainant started to have a regular transaction with several banks such as Philippine National Bank, Chinabank, BDO and Metrobank as part and parcel of her function wherein the respondent employer is a depositor. Attached hereto as Annex A is a certified photocopy of deposit and withdrawal slip of the banks regarding the said transaction.

3. Complainant likewise serves as disbursement officer and payroll maker since April 2011. An additional responsibilities which the respondent did not bother to add overtime pay or whatever incentives.

4. Sometimes in June 2011, the hired CHECKER resigned due to personal reason. Respondent immediately assigned the tiresome load to the complainant without any promise of additional compensation. She thinks that it is for temporary only but until she was illegally dismissed she perform the functions of CHECKER.

5. November 2011, Splash Company with its Region 8 Supervisor JOSE BAYARONG offered her a job as Samar Product Coordinator. The new opportunities promised a better salary and position that she confided to her employer MARTHA LIM her willingness to accept the offer but willing to serve a month to train a new comer to handle her position in San Roque Marketing. Unknown to her, respondent called the Manila Office of Splash Company next day to ruin her reputation alleging that she malversed a One Hundred Thousand Pesos (P100,000.00) and having an extra-marital affair with her husband, NICHOLAS LIM. The incidents result for the complainant being turned down when she applied for the job in the said company in early part of December, 2011. A week after she was not allowed to report to work and deprived to received her one-month salary.

6. Jobless and devastated the complainant filed the instant complaint based on his alleged illegal termination by respondent in November 28, 2011.

ISSUE

Whether or not complainant is entitled for payment of salary, holiday and overtime pay and claim for damages?

ARGUMENTS AND DISCUSSION It is clear from the foregoing statement of facts that Complainant Arcallana was an employee of San Roque Marketing who with her character and capacity served the

establishment well. But even assuming arguendo, she ask the permission of respondent to resign from her job nevertheless she was deprived of her right to receive her salary and to work with another company with a reputable name. She was denied of due process and actually being a victim of unjust treatment of workers. The baseless and malicious allegation of the respondent to the honor and dignity of the Complainant as a lover of her husband add to the pain and humiliation of my client who only wish to work and earn a decent living. In general, an illegally dismissed employee is entitled to one or more of the following reliefs: 1. Reinstatement; 2. Payment of Backwages; 3. Separation Pay; 4. Payment of Damages; and 5. Award of Attorneys Fees Under the doctrine of strained relations, the payment of separation pay has been considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. On the one hand, such payment liberates the employee from what could be a highly oppressive work environment. On the other, the payment releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust. (Coca-Cola Bottlers Phils. vs. De Leon, G.R. No. 156893, June 21, 2005.) A dismissed employee is entitled to moral damages when the dismissal is attended by bad faith or fraud or constitutes an act oppressive to labor, or is done in a manner contrary to good morals, good customs or public policy. Exemplary damages may be awarded if the dismissal is effected in a wanton, oppressive or malevolent manner (Kay Products, Inc., et al. v. Court of Appeals, G.R. No. 162472, July 28, 2005, 464 SCRA 544) As a general rule, attorney's fees (other than judicial costs) are not recoverable, except:

a) stipulation between parties b) when exemplary damages are awarded c) when defendant's act/omission compelled plaintiff to litigate with 3rd persons or incur expenses to protect his interest d) malicious prosecution e) clearly unfounded civil action or proceeding against plaintiff f) defendant acted in gross & evident bad faith in refusing to satisfy plaintiff's just & demandable claim g) legal support actions h) recovery of wages of household helpers, laborers & skilled workers i) actions for indemnity under workmen's compensation and employer liability laws j) separate civil action to recover civil liability arising from crime k) when double judicial costs are awarded

WHEREFORE, It is respectfully prayed:

a) That respondent be ordered to pay the complainant the sum of P6,000.00 for her one month salary, and P3,000.00 for overtime pay and holiday pay. b) That respondent be ordered to pay the SSS monthly contribution from January 2011 November 2011 as it was deducted in the salary as indicated in payroll.

c) That respondent be ordered to pay the complainant the sum of P10,000.00 for moral damages. d) That complainant recovers of the respondent the sum of P20,000.00 for Attorneys fees, and the cost of this suit.

Catbalogan Ciy, February 10, 2012. By:

ATTY. SHERYL B. ARCALES NOTARY PUBLIC Commission Serial NO. 0829 Until December 31, 2012 PTR. No. 991983; Catbalogan City Roll of Attorney No.1102 IBP Lifetime No.28

Republic of the Philippines ) Province of Samar City of Catbalogan ) SS )

CERTIFICATION AND V E R I F I C A T I O N I, the undersigned complainant after having been sworn to law, under oath depose and state: THAT--I am the complainant in the above-entitled case; I have caused the preparation of the foregoing Position Paper; I have read and understood the contents thereof and the same are true based on my personal knowledge or authentic records. I further certifies under the same oath that she had not filed a case involving the same issue in any court, Tribunal or Agency; that there is no such case filed or is pending before any court , Tribunal or agency ; that if there is case hereafter filed or is pending before any Court , Tribunal or Agency, I undertake to report such fact five (5) days therefrom to the Honorable Court. IN WITNESS WHEREOF, I have hereunto set our hands this 15 February, 2012 at Catbalogan City, Philippines. MARIA TERECEL P. ARCALLANA SSS ID No.999-234

SUBSCRIBED AND SWORN to before me this 15 February 2012 at Catbalogan City, Philippines. ATTY. SHERYL B. ARCALES NOTARY PUBLIC Commission Serial NO. 0829 Until December 31, 2012 PTR. No. 991983; Catbalogan City Roll of Attorney No.1102 IBP Lifetime No.28

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