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REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT


NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch
Cordillera Administrative Region
Baguio City

JERWIN AVELLANOSA,
Complainant,
NLRC-RAB-CAR 12-
0418-16

-versus-

TAODHARMA INC.
(ALLPHONES PH.)
Rep. by PATRICK PALMA
(HR HEAD)
Respondent.
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POSITION PAPER
COMPLAINANT, through the undersigned counsel and unto
this Honorable Labor Arbitration Office, most respectfully
submits this POSITION PAPER and avers the following:

PREFATORY STATEMENT

The Complainant in this case is JERWIN AVELLANOSA, of


legal age, Filipino citizen, married, with residence address at 12
Kamagong St., Woodsville Subdivision, Camp 7, Baguio City,
where he could be served with summons and other legal
processes of this Honorable Office.

The Respondent is TAODHARMA INC. with a trade name


of ALLPHONES (hereinafter referred to as ALLPHONES for
brevity), represented by Patrick Palma as its HR Head, a
business establishment engaged in retail selling of cellphones
and gadgets, with business address at Tao Technology Group
Building, P. Antonio St., cor. F. Legaspi St., Ugong, Pasig, where
the said establishment and representative could be served with
summons and other legal processes of this Honorable Office.

STATEMENT OF FACTS

The Complainant was formerly a probationary employee


for the position of Store Manager for Baguio ALLPHONES SM
Baguio Branch from September 12, 20131 until his resignation
effective March 1, 2015. The monthly base pay shall cover a
five-day workweek and all regular and special holidays and as
approved by the Regional Department of Labor and
Employment. Among the benefits2 during Complainants
probationary status and upon regularization are the following:

BENEFIT During Probationary Upon


Staus Regularizatioon
Basic pay PHP 35,000.00
Transportation PHP 5,000.00
Allowance
Government SSS (Sickness, Maternity &Retirement),
Mandated Benefits PhilHealth, Pagibig, Employee Compensation
(EC)
13th Month Pay One (1) monthly base pay to those with at
least one (1) year of service. Pro-rata for
those with at less than one (1) year of service.
Medical Coverage Not covered 1+2 dependents
(HMO) (additional to be
covered by the
employee).
Coverage: 150K-proncipal &60K-
Dependent/s
Group Life Not covered PHP 500K coverage
Insurance
Sick Leaves Earned at 0.83 per Banked 5 days SL can
month or (5 days six already be availed (10
months) days per year)
Can be accumulative
up to a maximum of 90
days
Vacation Leaves Earned at 0.83 per Banked 5 days VL can
month or (5 days six already be availed (10
months) days per year)
Non-convertible to
cash
Communication PHP 800.00
Allowance
Incentive Program Yes
Product Discount Exclusive employee discount program
Fruit Basket for Not covered PHP 1,000 worth of
New Mothers Fruit Basket (legal
spouse)

1
Annex A, Job Contract.
2
Annex A, Job Contract, p.2.
As per company policy, Complainants salary from
February 1-28, 2015 was put on hold upon filing of his
resignation papers. Upon release of said clearance, a maximum
of three (3) months to release Employment Certificate, final
Basic Pay, Transportation Allowance, Communication Allowance,
pro-rated 13th Month Pay, commissions and conversion of
unused Sick Leave/Vacation Leave should have been given to
Complainant. However, ALLPHONES failed to give such benefits
to Complainant.

ISSUES

1. WHETHER OR NOT COMPLAINANT IS ENTITLED TO FINAL


BASIC PAY, TRANSPORTATION ALLOWANCE,
COMMUNICATION ALLOWANCE, PRO-RATED 13TH
MONTH PAY, COMMISSIONS AND CONVERSION OF
UNUSED SICK LEAVE/VACATION LEAVE.

2. WHETHER OR NOT THE RESPONDENT IS LIABLE TO THE


COMPLAINANT FOR NOMINAL DAMAGES AND MORAL
DAMAGES.

FIRST ISSUE: FINAL BASIC PAY, TRANSPORTATION


ALLOWANCE, COMMUNICATION ALLOWANCE, PRO-RATED
13TH MONTH PAY, COMMISSIONS AND CONVERSION OF
UNUSED SICK LEAVE/VACATION LEAVE

As to the entitlement of final salary and other benefits as


stated under the Job Contract, Complainant believes that he is
entitled to the same just like all other regular employees and as
guaranteed by the Labor Code of the Philippines. Employees
are entitled to receive the salaries and wages as agreed upon
under the contract of employment, which is in consonance with
existing laws and regulations.

Well-settled is the rule that in cases of non-payment and


underpayment of salaries and wages, the employer has the
burden of proof to show that the worker/employee has been
paid all his salaries and wages since it has in its possession the
proof of payment such as payrolls and/or vouchers (Sambalonay
vs. Jose Cuevas, NLRC No. RB IV 186447, February 13, 1980)
and in the absence of proof to the contrary, it is deemed that no
payment has been made. (G & M Inc. v. Willie Batomalaque, G.
R. No. 151849)
SECOND ISSUE: NOMINAL DAMAGES, EXEMPLARY
DAMAGES AND MORAL DAMAGES AND ATTORNEYS FEES

In the instant case, there is no other plausible explanation


for the acts (or its conspicuous absence) of the Respondent of
the manner wherein the Complainant was deprived of his final
salary and benefits except bad faith. ALLPHONES did not even
bother to notify the Complainant of the status of his claims
considering that almost two (2) years have lapsed after filing his
resignation.

Complainant is entitled to moral damages as provided for


under Articles 2217 and 2219 in relation to Article 21 and
paragraph 6 of Article 32 of the Civil Code of the Philippines.

The foregoing provisions read as follows:

Article 2217. Moral damages include


physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation,
wounded feelings, moral shock, social
humiliation, and similar injury. Though
incapable of pecuniary computation, moral
damages may be recovered if they are the
proximate result of the defendants wrongful
act or omission.

Article 2219. Moral damages may be


recovered in the following and analogous
cases:

xxx

(10) Acts and actions referred to in


Articles 21, 26, 27, 28, 29, 30, 32, 34 and
35.

Article 21. Any person who wilfully


causes loss or injury to another in a manner
that is contrary to morals, good customs or
public policy shall compensate the latter for
the damage.
Since it is clear that the Complainant is entitled to moral
damages, he is likewise entitled to exemplary damages,
pursuant to Article 2229 of the Civil Code of the Philippines
which provides:

Article 2229. Exemplary or corrective


damages are imposed, by way of example or
correction for the public good, in addition to
the moral, temperate, liquidated or
compensatory damages.

Finally, having been compelled to engage the services of a


counsel to vindicate his rights, Complainant is further entitled to
attorneys fees.

PRAYER

WHEREFORE, premises considered, it is most respectfully


prayed of this Honorable Labor Arbiter, that decision be
rendered, to wit:

1. Ordering the Respondent to pay to the


Complainant his final basic pay and other benefits due
to him.

2. Ordering the Respondent to pay the herein


Complainant nominal damages in the amount of Php
10,000.00, moral damages in the amount of 20,000.00,
attorneys fees in the amount of Php10,000.00 and
exemplary damages as the as the Honorable Labor
Arbiter may deem proper.

Other reliefs just and equitable under the premises are


also prayed for.

RESPECTFULLY SUBMITTED.

Baguio City, February 1, 2017.

COPY FURNISHED VIA REGISTERED MAIL

Tao Technology Group Building


P. Antonio St., cor. F. Legaspi St., Ugong
Pasig