ARGUMENTS AND DISCUSSIONS

PREFATORY STATEMENTS
A pleasant evening your Honors. Allow me to begin my discussion and
arguments by quoting the Supreme Court in Phil-Singapore Transport
Services, nc. vs !"#C, et al, to quote$
Due process must be observed because the dismissal affects not only
the employee's position but also his means of livelihood. Truly,
unemployment brings untold misery and hardship not only to the
workingmen but also to those who are dependent on the voyage earners.
When a person has no property, his job may possibly be his only possession
or means of livelihood. Therefore he should be protected against arbitrary
deprivation of his job. %Phil.-Singapore Transport Seri!es" In!. s.
N#RC" et al." G.R. No. $%&&$&
This !ase presents t'o i(portant iss)es" to 'it*
+. ,-ET-ER OR NOT T-E COMP#AINANT ,AS I##EGA##Y
DISMISSED
.. ,-ET-ER OR NOT T-E COMP#AINANT IS ENTIT#ED TO MONEY
C#AIMS
I. T-E COMP#AINANT ,AS I##EGA##Y DISMISSED
STATEMENT OF FACTS*
The complaint was employed in '((). As an inventory cler*, her scope o+
wor* includes ma*ing inventory o+ materials, stoc*s and all supplies o+ the
company. She also ta*es all shipment arrivals, chec*ing i+ the +igures in the
shipment mani+est matches with the actual things unloaded.
This shows that the complainant,s activity in the company is very necessary
and indispensable. t is undisputed in this case that the complainant is a
regular employee. As such, she en-oys security o+ tenure. The provisions o+
"abor Code de+ine security o+ tenure in this wise$ .!o one shall be
terminated +rom employment e/cept upon -ust0authori1ed cause provided by
law and only upon due process.2 3Art '456
t bears stressing your Honors, that the 7eneral rule is that no one shall be
terminated +rom employment and the e/ception is 8!"9 :P8! ;:ST 8#
A:TH8#<=> CA:S=S A!> 8!"9 :P8! >:= P#8C=SS. n short, in order +or
an employee to be law+ully terminated +rom employment, the employer must
clearly and overwhelmingly show that her case +alls under the e/ception.
8therwise, the dismissal is marred by illegality. :nder Art '45, An employee
who is unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to other benefits or their monetary
euivalent computed from the time his compensation was withheld from him
up to the time of his actual reinstatement.
"et me direct your attention to the complainant,s position paper starting in
Paragraph 346, that sometime in ?ay '(@A, the complainant +iled +or a
vacation leave +or one month which will cover +rom ;uly @-A@, '(@A. The
reason +or this month-long vacation leave is +or the complainant to ta*e care
o+ her +ather who is terminally ill and also to ta*e care o+ her 5-year old
baby. However, upon her return, she was not allowed entry by the security
guard as per memorandum issued by the head o+ security and H#
department. Agitated, she called her supervisor and demanded an
e/planation, the supervisor, in an apologetic tone, e/plained to her that she
is already terminated because o+ unauthori1ed absences and that her
vacation leave was not duly approved by the H#.
9our honors, nothing is more apparent than the +act that the complainant
was summarily dismissed.
T-IS IS A C#EAR I##EGA# DISMISSA# CASE
The "abor Code sanctions that an employee may be validly dismissed only
upon -ust causes enumerated under Art ')' and +or authori1ed causes under
Art ')A-')B. n addition to these, due process mandates that observance o+
the two notice rule must be strictly complied with to -usti+y dismissal. Thus,
a valid dismissal must comply with the twin requirements o+ due process, to
wit$ @6 the dismissal must be upon reasonable ground based on law andC '6
the employee be noti+ied o+ speci+ic in+raction committed with an opportunity
to be heard
There is substantive due process when the ground upon which the dismissal
is based is among the -ust causes enumerated in Article ')' o+ the "abor
Code. Accordingly, an employeeDs services may only be terminated upon
very narrow and con+ined grounds mentioned in Arti!le ./." thus$
@. Serious ?isconduct or Eill+ul >isobedience
'. 7ross and Habitual !eglect
A. Fraud or Greach o+ Trust
B. Commission o+ a crime by the employee against the employer
or any immediate member o+ his +amily or duly authori1ed
representative
H. 8ther analogous cases
Again, as discussed earlier, the complainant was not allowed entry because
as e/plained by the supervisor, she was already terminated because o+
unauthori1ed absences since her vacation leave was not approved by the H#
>epartment. The respondent is ban*ing on two theories, to wit$ @6 the
complainant incurred AE8", and '6 the complainant incurred unauthori1ed
absences.
A0ANDONMENT
"et me discuss abandonment +irst.
Absence without leave 3AE8"6 presupposes a deliberate intent to abandon
one,s -ob without approval +rom the management. Th)s" to 1e !onsi2ere2
as a gro)n2 3or 2is(issal" a !lear intent o3 a1an2on(ent ()st 1e
!on!l)siel4 esta1lishe2 . ;urisprudence holds that +or abandonment o+
wor* to e/ist, it is essential that$ 3@6 the employee must have +ailed to
report +or wor* without valid or -usti+iable reasonC and 3'6 that there ()st
1e a C#EAR INTENTION to seer the e(plo4er-e(plo4ee relationship
as (ani3este2 14 so(e oert a!ts. %Harpoon ?arine Services nc vs
Francisco, 7# !o. @I@4H@, ?arch ', '(@@&
n Samarca vs Arc-?en ndustries, nc., the Court clari+ied that the 1)r2en
o3 proo3 to sho' that there 'as )n5)sti3ie2 re3)sal to go 1a!6 to
'or6 rests on the e(plo4er. %BH5 Phil. H(I, H@H 3'((A6&
=ven assuming, that the complainant +ailed to return +or wor*, still, the
employer has to send notice to return or its equivalent to the employee.
:nder R)le 7I8" Se! . o3 the O(ni1)s R)les, in case o+ abandonment,
the e(plo4er is still 2)t4 1o)n2 to sen2 noti!e to the e(plo4ee to
his last 6no'n a22ress. Again this, the respondent +ailed to do.
?oreover, it is a well-settled doctrine that the +iling o+ illegal dismissal case
negates the employer,s theory o+ abandonment. Time and again, the
Supreme Court held that, !"t is settled that the filing of a complaint for
illegal dismissal is inconsistent with a charge of abandonment, for an
employee who takes steps to protest his layoff CANNOT BY ANY LOGIC BE
SAID TO HAVE ABANDONED HIS WORK.# %Jillar vs. !"#C and Hi-Tech
?anu+acturing Corp., 7# !o. @A(5AH, ?ay @@, '(((&
n another case, the Court held, !A charge of abandonment is totally
inconsistent with the immediate filing of a complaint for illegal dismissal$
MORE SO, WHEN IT INCLUDES A PRAYER FOR REINSTATEMENT.#
%7lobe Telecom, nc. Js. ;oan Florendo-Flores, 7# !o. @H((5', Sept '4,
'(('&
UNAUT-ORI9ED A0SENCES
This theory must necessarily +ail. t has been established that the
complainant had as*ed +or a month-long vacation almost two months prior
to the date o+ leave. The respondent cannot claim this unauthori1ed
absences because such application +or leave o+ absence was duly approved
by the H# >epartment as re+lected in the e-mail response +rom an H#
representative.
=ven granting in arguendo, that the leave o+ absence was not approved, the
mere +act that the supervisor gave a distinct impression to the complainant
that she was due +or leave indicates approval +or such leave. This distinct
impression is mani+ested when the supervisor instructed the complainant the
speci+ic pertinent documents to be turned over prior to her leave o+ absence.
Ehy in the world would the supervisor give speci+ic instruction to the
complainant to turn over pertinent documents i+ they are not in the
understanding that the complainant will be ta*ing her vacation leaveK This is
especially true when the turn-over o+ pertinent documents is not a company
practice in its normal operation.
=ven assuming +urther that the application +or vacation leave was not
approved, the +act that the company representatives have *nowledge o+
such application and did not e/press their disapproval thereto indicates that
there was no disapproval. As such, it is impliedly approved. Ehat is clear
here is that the respondent +ailed to noti+y the complainant o+ their
disapproval +or her application +or leave.
PROCEDURA# DUE PROCESS
!ot only did respondents +ail in their tas* o+ discharging the burden that
complainantDs dismissal was +or a -ust cause, it also +ailed to show their
compliance with the procedural due process requirement.
Procedural due process requires that an employee be apprised o+ the charge
against him, given reasonable time to answer the same, allowed ample
opportunity to be heard and de+end himsel+ and assisted by counsel i+ he so
desires. As repeatedly stressed, :2)e pro!ess in one 'hi!h hears 3irst
1e3ore it !on2e(ns.; %Secon Philippines, "td. J !"#C, 7# !o. 54A55&
T-E COMP#AINANT ,AS NOT NOTIFIED
n the case at bar, the respondent +ailed to in+orm the complainant o+ any
speci+ic in+ractions it committed and +ailed to a++ord her an opportunity to
de+end hersel+.
t can easily be gleaned that the complainant was not a++orded with due
process as mandated by law. >ue process is concerned not only with the
legality o+ the act o+ dismissal but also in the legality o+ the manner o+
dismissal. Thus, in one case the Supreme Court said$ .%or a worker&s
dismissal to be considered valid, it must comply with both pro!e2)ral an2
s)1stantie 2)e pro!ess. The legality of the manner of dismissal
constitutes procedural due process, while the legality of the act of dismissal
constitutes substantive due process2 %'uirico (ope) v. Alturas *roup of
+ompanies and,or -arlito .y, 7.#. !o. @5@((), @@ April '(@@&.
Procedural due process requires compliance with the two notice rule, to wit$
@6 A written notice in+orming the employee o+ the details o+ the acts
constituting the o++enseC and '6 The subsequent notice which in+orms the
employee o+ the employer,s decision to dismiss the +ormer.
The employee must be +urnished two 3'6 written notices$ the +irst notice
apprises him o+ the particular acts or omissions +or which his dismissal is
sought and the second is the subsequent notice which in+orms him o+ the
employerDs decision to dismiss him. The LonusL o+ proving that the
employee was dismissed +or a -ust cause rests on the employer, and the
latterDs +ailure to discharge that burden would result in a +inding that the
dismissal is un-usti+ied 3St. "u*eDs ?edical Center, nc. vs. Fadrigo, 7.#. !o.
@)H5AA, !ov. 'H, '((56.
There is an abundance of cases wherein the +ourt ruled that the twin
reuirements of due process, substantive and procedural, must be complied
with, before valid dismissal e/ists. Without which, the dismissal becomes
void. The twin e!"ie#ent$ %& n%ti'e (n) he(in* '%n$tit"te the
e$$enti(+ e+e#ent$ %& )"e ,%'e$$. This simply means that the employer
shall afford the worker ample opportunity to be heard and to defend himself
with the assistance of his representative, if he so desires. Ample opportunity
connotes every kind of assistance that management must accord the
employee to enable him to prepare adeuately for his defense including
legal representation- %!itto =nterprises vs !"#C , 7.#. !o. "-@@BAA4&.
! TH= CAS= AT GA#, TH= C8?P"A!A!T EAS >=P#J=> 8F H=# #7HT T8
G= !F8#?=> A!> #7HT T8 >=F=!>
?oreover, it is worthy o+ note that it is clear +rom the attending
circumstances that the action o+ the respondent in dismissing the
complainant is retaliatory.
As stated in the +acts, the complainant +iled +or maternity leave on >ecember
'(@' since she was due to give birth the +ollowing month. Although, the
maternity leave was approved, the respondent +ailed to give the complainant
her maternity leave pay despite repeated demand.
Gurdened by the hospital bills, the complainant +iled +or an application +or
loan with the SSS. However, her loan application was denied on the ground
that the employer +ailed to remit her SSS contributions +or the last 5
months. Aggrieved by this, she reported this with the >8"= #egional 8++ice
to which it immediately acted. Few days a+ter, the complainant was called to
the H# 8++ice to e/plain why she reported this incident to the >8"= rather
than bringing this to the 7rievance ?achinery. Since then, the company
treated her sourly until the day she was illegally dismissed.
II. T-E COMP#AINANT IS ENTIT#ED TO MONEY C#AIMS
A. COMP#AINANT IS ENTIT#ED TO SA#ARY DIFFERENTIA#S
.?inimum wage2 means the lowest wage rate +i/ed by law that an employer
can pay his employees. P(.in* +e$$ th(n the #ini#"# w(*e i$ i++e*(+.
The employer cannot e/empt himsel+ +rom liability to pay minimum wage
because the payment o+ minimum wage is not dependent on the employer,s
ability to pay. %>e #acho v ?unicipality o+ ligan, 7.#. !o. "-'AHB'&
The "+e i$ th(t the /")en %& ,%0in* ,(.#ent %& #%net(. '+(i#$
e$t$ %n the e#,+%.e %Jillar vs . !ational "abor #elations Commission,
7.#. !o. @A(5AH, ?ay @@, '(((&.
As a general rule, one who pleads payment has the burden o+ proving it.
=ven where the plainti++ must allege non-payment, the general rule is that
the burden rests on the de+endant to prove payment, rather than on the
plainti++ to prove non-payment. The debtor has the burden o+ showing with
legal certainty that the obligation has been discharged by payment %;imine1
v !"#C, 7.#. !o. @@I5I(&.
The reason for the rule is that the pertinent personnel files, payrolls,
records, remittances and other similar documents 0 which will show that
overtime, differentials, service incentive leave and other claims of workers
have been paid 0 (e n%t in the ,%$$e$$i%n %& the w%1e /"t in the
'"$t%). (n) (/$%+"te '%nt%+ %& the e#,+%.e %Jillar v !"#C, supra&.
0. COMP#AINANT IS ENTIT#ED TO +<
T-
MONT- PAY
>uring her entire employment, the complainant was never given any @A
th
month pay or its equivalent.
P.>. )H@ provides that all employers are required to pay their ran*-and-+ile
employees thirteenth month pay, regardless o+ the nature o+ their
employment and irrespective o+ the methods by which their wages are paid,
provided they have wor*ed at least one 3@6 month during the calendar year.
The thirteenth month pay shall not be less than one-twel+th 3@0@'6 o+ the
total basic salary earned by an employee in a calendar year. %Page BA o+
>8"=,s Handboo* on Eor*er,s Statutory ?onetary Gene+its '(@' =dition&
The .Gasic Salary2 o+ an employee +or the purpose o+ computing the
thirteenth month pay shall include all the remunerations or earnings paid by
his or her employer +or services rendered. %Supra&
C. COMP#AINANT IS ENTIT#ED TO O8ERTIME PAY
Arti!le /= o+ the "abor Code provides that, W%1 #(. /e ,e&%#e)
/e.%n) ei*ht h%"$ ( )(. ,%0i)e) th(t the e#,+%.ee i$ ,(i) &% the
%0eti#e w%1 (n ())iti%n(+ '%#,en$(ti%n e!"i0(+ent t% hi$ e*"+(
w(*e ,+"$ (t +e($t twent. &i0e ,e'ent 23456 thee%&7 W%1
,e&%#e) /e.%n) ei*ht h%"$ %n ( h%+i)(. % e$t )(. $h(++ /e ,(i)
(n) ())iti%n(+ '%#,en$(ti%n %& the &i$t ei*ht h%"$ %n ( h%+i)(. %
e$t )(. (t +e($t thit. ,e'ent 28956 thee%&7-
Since the beginning o+ complainant,s employment until her dismissal, she
was never paid overtime pay +or the services she rendered beyond the eight
hour period, hence the overtime pay o+ at least twenty percent 3'(M6 on
regular wor*ing day and thirty percent 3A(M6 on holiday and rest day were
withheld +rom her.
It is a 'ell settle2 r)le that an e(plo4ee 'ho ren2ers 1e4on2 eight
ho)rs o3 'or6 is entitle2 to an oerti(e pa4. Th)s" the !o(plainant
is entitle2 to this pa4 as a (atter o3 right.
D. COMP#AINANT IS ENTIT#ED TO -O#IDAY PREMIUM PAY
Arti!le $<- Co(pensation 3or rest 2a4" S)n2a4 or holi2a4 'or6.
2'6 W%1 ,e&%#e) %n (n. $,e'i(+ h%+i)(. $h(++ /e ,(i) (n
())iti%n(+ '%#,en$(ti%n %& (t +e($t thit. ,e'ent 28956 %&
the e*"+( w(*e %& the e#,+%.ee7 Whee $"'h h%+i)(. w%1
&(++$ %n the e#,+%.ee:$ $'he)"+e) e$t )(., he $h(++ /e
entit+e) t% (n ())iti%n(+ '%#,en$(ti%n %& (t +e($t &i&t. ,e
'ent 24956 %& hi$ e*"+( w(*e7 %"abor Code o+ the Philippines&
The complainant was never given the thirty percent 3A(M6 premium +or
the services he rendered during special holidays +rom '(() to the time o+
his illegal dismissal. Ati'+e ;< %& the L(/% C%)e ,%0i)e$ th(t e0e.
w%1e $h(++ /e ,(i) hi$ e*"+( )(i+. w(*e )"in* h%+i)(.$.
Holiday pay, thus, is a matter o+ right which every employee is entitled to
under the law.
Furthermore, the law mandates that an employee be given a double pay
or two hundred percent 3'((M6 during regular holidays i+ he wor*s and
one hundred percent 3@((M6 i+ he does not wor*. Pursuant to #A !o.
5B5' 3;uly 'H, '((46 there are eleven 3@@6 regular holidays in a year.
E. COMP#AINANT IS ENTIT#ED TO SER8ICE INCENTI8E PAY
Art. $%. Right to seri!e in!entie leae.
2(6 E0e. e#,+%.ee wh% h($ en)ee) (t +e($t %ne .e( %&
$e0i'e $h(++ /e entit+e) t% ( .e(+. $e0i'e in'enti0e
+e(0e %& &i0e )(.$ with ,(.7
The law requires that to be entitled to the Service ncentive "eave, the
employee must have rendered at least one 3@6 year o+ service and as such,
he shall be entitled to a yearly incentive leave o+ +ive 3H6 days with pay.
This statutory bene+it was not given to the complainant even i+ she is
entitled to this bene+it. Th)s" she sho)l2 1e pai2 3or the seri!e
in!entie leaes she is entitle2 3ro( the 4ear .>>/ )ntil his illegal
ter(ination on .>+<.
F. COMP#AINANT IS ENTIT#ED TO MATERNITY #EA8E PAY
#A @@I@, as amended by #A )')' provides that every pregnant employee
in the private sector, whether married or unmarried, is entitled to maternity
leave bene+it o+ si/ty 3I(6 days in case o+ normal delivery or miscarriage, or
seventy eight 34)6 days, in case Ceasarian section delivery, with bene+its
equivalent to @((M o+ the average daily salary credit o+ employee as de+ined
under the law.
To be entitled to the maternity leave bene+it, a +emale employee should be
an SSS member employed at the time o+ her delivery or miscarriageC she
must have given the required noti+ication to the SSS through her employerC
and her employer must have paid at least three 3A6 monthly contributions to
the SSS within the twelve-month period immediately be+ore the date o+ the
contingency. %Page 'B o+ >8"=,s Handboo* on Eor*er,s Statutory ?onetary
Gene+its '(@' =dition&
The complainant complied with all the required noti+ications in order to avail
the maternity leave bene+it. However, the employer +ailed to advance to her
the maternity leave pay. Ehat is worse was her discovery that the employer
+ailed to remit to the SSS her monthly contribution +or nine 356 month which
resulted in the denial o+ her application +or loan with the SSS.
G. COMP#AINANT IS ENTIT#ED TO 8ACATION #EA8E PAY
Concededly, nothing in the law which compels the employer to give vacation
leave to their employees. However, under the CGA, every employee is
entitled to a ma/imum one 3@6 month vacation leave with pay i+ the purpose
o+ the leave is to nurse an ailing +amily member. Hence, the complainant is
entitled to this bene+it under the CGA.
@. Furthermore, CGA is a contract entered into by the :nion in behal+ o+
all employees it represents and the employer. As such, it is the law
between the parties. As a bona +ide member o+ the AGC Company
:nion, nc., the complainant is entitled to this bene+it.
-. COMP#AINANT IS ENTIT#ED TO SEPARATION PAY
Considering that the relationship is already strained, it would be
unproductive and un+easible i+ the complainant were to be reinstated. An
i++e*(++. )i$#i$$e) e#,+%.ee i$ entit+e) t% $e,((ti%n ,(. e!"i0(+ent
t% %ne=#%nth ,(. &% e0e. .e( %& $e0i'e i& ein$t(te#ent i$ n%
+%n*e &e($i/+e. 1St. "u*eDs ?edical Center, nc. and #obert Nuan vs.
=strelito !a1arion, 7.#. !o. @H'@II, 8ctober '(, '(@(2.
I. COMP#AINANT IS ENTIT#ED TO FU## 0AC?,AGES
The ComplainantDs dismissal was clearly illegal. -en!e" she is entitle2 to
1e pai2 3)ll 1a!6 'ages !o(p)te2 3ro( the ti(e o3 2is(issal @.>+<A
)p to 3inalit4 o3 2e!ision.
The term .bac* wages2 has been de+ined as that +or earnings lost by a
wor*er due to his illegal dismissal. Payment thereo+ is a +orm o+ relie+ that
restores the income lost by reason o+ such unlaw+ul dismissal 3St. Theresa,s
School vs. !"#C and =sther #eyes, 7.#. !o. @''5HH, April @H, @55)6.
"n the computation of backwages and separation pay, account must be
taken not only of the basic salary of the employee but also of her
transportation and emergency allowances, vacation or service incentive
leaves and sick leaves, and thirteenth month pay 3#adio Communications o+
the Philippines, nc. vs. !"#C et. al., 7.#. !o. @(@@)@-)B, ;une '', @55'2.
PRAYER*
EH=#=F8#=, premises considred, it is respect+ully prayed that the
complainant be declared :!"AEF:""9 >S?SS=> F#8? =?P"89?=!T and
order the respondent to pay$
Plus moral and e/emplary damage due to bad +aith o+ the respondent
!ominal damage in the amount o+ PA(,((( plus +ull bac*wages