Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VIII
Tacloban City

SERGIO B. REYES, RAB VIII Case No. 01- 00005 - 11

Complainant,
-versus-

BURAUEN QUALITY BREAD

BAKESHOP,
Respondent,
x---------------------x

POSITION PAPER

RESPONDENT by the undersigned counsel and unto this Honorable Labor

Arbitration Office, most respectfully submit this position paper and state
that:
I. PRELIMINARY STATEMENT
Complainants causes of action against herein respondents are devoid of any
merit both in fact and in law, hence, the said causes of action are unfounded
and frivolous, and necessarily must fail.

THE PARTIES

II.
III.

THE FACTS

IV.

ISSUES

1. Whether or not the complainant was illegally dismissed.

2. Whether or not the complainant's second medical opinion is the final
determination of a medical statement.
3. Whether or not the complainant is entitled to his money claims.

II.

DISCUSSIONS / ARGUMENTS

a. Complainant was not illegaly dismissed

An employer may terminate the services of an employee who has been

found to be suffering from any disease and whose continued employment is
prohibited by law or is prejudicial to his health as well as the health of his coemployees. (Art. 284, LC)
Requisites for termination on the ground of disease.
1. The employee suffers from a disease;
2. His continued employment is prohibited by law or prejudicial to his
health or to the health of his co-employees; and
3. The disease is of such nature and at such a stage that it cannot be
cured within a period of six months even with proper medical
treatment.

Complainant was diagnosed by the responent company's physician with

Hepatitis D and Liver Cirrosis. By medical definition Hepatitis is a general
term meaning inflammation of the liver and can be caused by a variety of
different viruses such as hepatitis A, B, C, D and E. Since the development
of jaundice is a characteristic feature of liver disease,
Hepatitis D or delta hepatitis is caused by the hepatitis delta virus (HDV),
a defective RNA virus. HDV requires the help of a hepadnavirus like hepatitis
B virus (HBV) for its own replication.
HDV is transmitted percutaneously or sexually through contact with infected
blood or blood products.
Unfortunately, Currently there is no effective antiviral therapy available
for treatment of acute or chronic type D hepatitis.
On the other hand, Liver cirrhosis is tis a condition in which the liver does
not function properly due to long-term damage . Cirrhosis is most commonly
caused by alcohol, hepatitis B, hepatitis C, and non-alcoholic fatty liver
disease. Unfortunately again there is no cure for cirrhosis of the liver,
however there are treatments available that can stop or delay its progress,
minimize the damage to liver cells, and reduce complications.

Regrettably the complainant fall has all the requisites aforementioned for
valid grounds for termination of services due to medical illness.

b. Complainant did not avail of the procedure to seek for third medical
opinion in case of differing medical assessment

In the landmark case of Vegara vs Hammonia Maritime Services it was held

that the POEA Standard employment see page 72 copy until last paragraph.

Similarily the complainant did not avail of this procedure hence he cannot
claim that his physician's findings would be the final assessment of his
medical condition.

c. Compalainant cannot be entitled to money claims and other fees

Complainant is
therefore not
entitled to
reinstatement,
damages and
attorneys fees
because the
respondent had
sufficiently
established that
Seaworthing
Shipmanagement
Inc., faithfully
complied with all
the substantive
and procedural
requirements.
Respondent has
every right under
the Labor Code to
dismiss
employees
performing acts
inimical to the
companys
interest. To allow
the respondent
corporation to
retain
complainants
illness will be
prejudicial to his
health because
such nature of
work demands
great physical
strength or to the
health of his coemployees
because such

illness is
contagious.
PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of
this Honorable Office to dismiss the instant complaint for utter lack of
merit.
Other reliefs just and equitable under the premises are likewise prayed
for.
Respectfully submitted. Cebu City, Philippines, August 9, 2015.

Julie Tanya U. Pimentel

Counsel For Respondent
Attorneys Roll No. 00000
IBP No. 876490/2-11-12/Cebu
PTR No. 8966437/2-11-12/Cebu
MCLE Comp. Cert. No. III-0008897
IT Park, Cebu City

Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VII

Cebu City

MARTIN TRABAHANTE,
complainant,
NLRC RAB VII Case No. 03-0253-15 (OFW)
-versusSEAWORTHY SHIPMANAGEMENT INC.,
respondents,

X---------------------------------X

POSITION PAPER
COMPLAINANT by the undersigned counsel and unto this Honorable Office,
most respectfully submits this position paper and avers the following to wit:
I. PREFATORY
STATEMENT
The Complainant in this case is MARTIN TRABAHANTE, Filipino, of legal age
and a resident of Banawa, Cebu City where he could be served summons and
other legal processes of this Honorable Office.
The Respondent is SEAWORTY SHIPMANAGEMENT INC., a local manning
agency with its principal business address at Guadalupe, Cebu City where
the said establishment and representative could be served with summons
and other legal processes of this Honorable Office.
II. STATEMENT
OF FACTS
1. The Complainant had been working with the Respondent as a
mess man for its vessels, for the last five years. Complainant had
always been assured of another vessel to board and work as

2.

3.

4.

5.

6.

7.

crew member every vacation during his stint with the respondent
manning company.
In January 2015, he was again engaged by respondent's
company to work in another vessel for a contract duration of nine
months. He was then made to sign a re-engagement contract
with respondent with a salary of Four hundred thirty US Dollars
per month for a period of nine months.
Prior to the signing of the contract of engagement, complainant
was already found to be physically fit for employment and
deployment in one of the vessels of respondent company.
On February 1, 2015 Complainant was deployed for a foreign
employer. And about this time complainant's brother, Dennis
Demenes, a Chief Engineer in one of the respondent's vessels
had a falling out due to differences of company principles and
policies.
Thereafter, complainant was suddenly told that he could no
longer continue with his employment overseas as he was found
to be suffering from Hepatitis D and Liver Cirrhosis. Complainant
was immediately repatriated and arrived in the Philippines on
March 1, 2015.
Because of the sudden pronouncement by respondent manning
agency about complainant's illness complainant was no longer
allowed to board the vessel. Thus, complainant felt suspicious
and sought the expert opinion of the Department of Health.
On March 21, 2015, complainant underwent a thorough medical
examination at a medical center duly accredited by the DOH. The
said Medical Certificate categorically declared complainant to be
physically fit for sea duty without restrictions.
IV. ISSUES
a. WHETHER OR
NOT THE
COMPLAINANT
WAS ILLEGALY
DISMISSED AND
WHETHER OR
NOT THE
COMPLAINANT
WAS AFFORDED
THE

PROCEDURAL
DUE PROCESS.
b. WHETHER OR
NOT THE
RESPONDENT
AGENCY'S HAS
JUST CAUSE TO
DISMISS THE
COMPLAINANT.
c. WHETHER OR
NOT
COMPLAINANT IS
ENTITLED TO
SEPARATION PAY,
MORAL AND
EXEMPLARY
DAMAGES
BECAUSE OF THE
ILLEGAL
DISMISSAL
V.
DISCUSSIONS /
ARGUMENTS

FIRST ISSUE: Complainant is illegally terminated and was not accorded with
the procedural due process of law.
Based on the foregoing, it is clear that the dismissal of the complainant
was illegal thus he should be paid of his separation pay as provided by law.
Moreover, no procedural 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 notice, i.e., a notice which

apprises the employee of the particular acts or omission for which his
dismissal is sought, and a subsequent notice which informs the employee of
the employers decision to dismiss him (Kiamco vs. NLRC, G.R. No. 129449,
June 29, 1999).

In this instant case, clearly the complainant was not afforded of the
procedural due process accorded by law because he was simply told that he
was dismissed because it was found that he was suffering from Hepatitis D
and Liver Cirrhosis.

In addition, (I)t 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, 134 SCRA 420; and also Article 277 of the Labor Code].
SECOND ISSUE: Respondent did not have just cause for dismissal
Just causes for dismissal of employee may be defined as those lawful or valid
grounds for termination of employment which arise from causes directly
attributable to the fault or negligence of the erring employee. Just causes are
usually serious or grave in nature and attended by willful or wrongful intent
or they reflected adversely on the moral character of the employees.
As opposed to authorized causes under Article 283 wherein the termination
of employment is dictated by necessity of the business, the dismissal under
just causes is imposed by the employer to the erring employee as a
punishment for the latters acts or omission.
Just Causes Under the Labor Code

Just causes for termination under the Labor Code is found in Article 282 and
enumerated here as follows:
1. Serious misconduct. Serious misconduct is an improper conduct willful
in character and of such grave nature that transgressed some
established and definite rule of action in relation to the employees
work.
2. Willful disobedience to lawful orders. The employees are bound to
follow reasonable and lawful orders of the employer which are in
connection with their work. Failure to do so may be a ground for
dismissal or other disciplinary action.
3. Gross and habitual neglect of duties. Gross negligence has been
defined as the want or absence of or failure to exercise slight care or
diligence, or the entire absence of care. It evinces a thoughtless
disregard of consequences without exerting any effort to avoid them.
4. Fraud or willful breach of trust / Loss of confidence. Fraud is any act,
omission, or concealment which involves a breach of legal duty, trust,
or confidence justly reposed and is injurious to another.
5. Commission of a crime or offense. Commission of a crime or offense by
the employee against his employer or any immediate member of his
family or his duly authorized representative, is a just cause for
termination of employment.
6. Analogous causes. Other causes analogous to the above grounds may
also be a just cause for termination of employment.
Nowhere did it mention in the provisions stated above that the complainant
may be summarily dismissed because of his health conditions. Therefore,
clearly complainant was dismissed without just cause under the Labor Code.
Moreover, the complainant has furnished a second medical opinion from a
duly accredited medical center by the Department of health. It should be
stressed that the findings of the respondent company designated physician
cannot justifiably be the final assessment of the medical condition of the
complainant especially when the second opinion differs.
THIRD ISSUE:
COMPLAINANT IS ENTITLED TO MORAL AND EXEMPLARY DAMAGES The Labor
Code provides:

Art. 279. Security of Tenure In cases of regular employment, the employer

shall not terminate the services of an employee except for a just cause or
when authorized by this Title. An employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of seniority rights and
=other privileges and to full backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual
reinstatement.

Being arbitrarily dismissed without just cause as highligted from the previous
issue the complainant is thus entitled to full backwages inclusive of
allowances, and to his other benefits or their monetary equivalent computed
from the time his compensation was withheld from him up to the time of his
actual reinstatement.
Moreover In the case of Montinola vs Philippine Air Lines it was held that The
employee is entitled to moral damages when the employer acted a) in bad
faith or fraud; b) in a manner oppressive to labor; or c) in a manner contrary
to morals, good customs, or public policy.
F]rom the statement of facts it was noted that around the same time the
brother of the complainant had a falling out due to differences of company
principles and policies. And all of a sudden the complainant was then told he
is no longer fit to work because of some illness. This accusation is both
suspicious and frivolous since there were even no mention of any medical
certificate or document or proof that the complainant indeed had been
examined by the company's physician.
He\nce the respondent acted in bad faith in terminating the employment of
the complaint thus the latter is entitled to moral and exemplary damages.
PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of
this Honorable Office, that decision be rendered, to wit:

1. Declaring the termination of the herein Complainant as illegal and

further, ordering Respondent to pay unto the Complainant separation
pay.

2. Ordering the Respondent to pay to the Complainant the salary

differential due to him.

3. Furthermore, it is likewise prayed unto the Honorable Office 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.

Other reliefs just and equitable under the premises are also prayed for.
RESPECTFULLY SUBMITTED.
CEBU CITY, August 9, 2015
Julie Tanya U. Pimentel
Counsel For Complainant
Attorneys Roll No. 00000
IBP No. 876490/2-11-12/Cebu
PTR No. 8966437/2-11-12/Cebu
MCLE Comp. Cert. No. III-0008897
IT Park, Cebu City