REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISION
NATIONAL CAPITAL REGION
QUEZON CITY

ALLAN H. BAHIAN.,
Complainant

-versus- Case No. NCR-14017-18

DIRECT ELECTRIX
EQUIPMENT CORPORATION
and DANIEL ESCUDO.,
Respondents.
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REPLY PAPER
(For the Complainant)

Paragraph 7

With respect to procedural due process, it is settled that in

termination proceedings of employees, procedural due process
consists of the twin requirements of notice and hearing. The
employer must furnish the employee with two written notices before
the termination of employment can be effected: (1) the first apprises
the employee of the particular acts or omissions for which his
dismissal is sought; and (2) the second informs the employee of the
employer’s decision to dismiss him. The requirement of a hearing is
complied with as long as there was an opportunity to be heard, and
not necessarily that an actual hearing was conducted. Ramirez vs.
Polyson Industries, Inc., 806 SCRA 559, G.R. No. 207898 October 19,
2016

The just causes in the Labor Code are found in the following
provisions thereof:

Article 297 (282) - (Termination by the Employer) which provides for

the following grounds:
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(a) Serious misconduct or willful disobedience by the employee

of the lawful orders of his employer or representative in
connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed
in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against
the person of his employer or any immediate member of his
family or his duly authorized representatives; and
(e) Other causes analogous to the foregoing.

Respondent sent Notice to Return to Work informing the

complainant that failure to report to the office 3 days after receipt
may be considered as abandonment for his current position.

In this case, the notice shall be served at the worker's last known
address.

Notice to Return to Work dated August 8, 2018, sent to complainant,

was returned to sender, due to the failure of the respondent company
of sending to complainant’s current address. The said notice was
sent to Manticao, Misamis Oriental as indicated in Annex and not on
his current address, 22 Narra Street, Cristina Subdivision,
Concepcion Uno Marikina City NCR 1807, which is only few meters
away from the company premises.

Evidently, it is clear that respondent's dismissal was effected without the

notice required by law. Thus, petitioner failed to satisfy the two-notice
requirement and therefore, he is illegally dismissed.

Prefatory Statement

This is a case of an employee who was employed for seventeen

(17) years as an all around worker and was dismissed without a
formal notice and without a just ground. The complainant was hired
by the respondent as a carpenter, a generator assembler and
dismantler, a lineman, and a delivery man from year 2001 to 2018.
Being a regular employee, he deserves the protection of law for his
security of tenure. In this case, his security of tenure was disregarded
in clear violation of the labor laws.

The Parties

NCR-08-14017-18
Bahian vs. Direct Electrix Equipment Corporation and Daniel Escudo
Position Paper (for complainant)
 3

1. Complainant Allan Bahian1 is of legal age, Filipino, and a

resident of 22 Narra Street, Cristina Subdivision, Concepcion Uno
Marikina City NCR 1807 where he may be served with notices,
decisions and other legal processes of this Honorable Office.

2. Respondent Direct Electrix Equipment Corporation2 is a

private corporation engaged in the business of fabrication and may
be served with notices, decisions and legal processes at 44 Narra
Street, Cristina Subdivision, Concepcion Uno, Marikina City NCR
1807.

3. Respondent Daniel Escudo3 is of legal age, Filipino, and

he is the owner of the respondent corporation and he may be served
with notices, decisions and legal processes at the abovementioned
address of the corporation.

Statement of Facts

4. Complainant was hired by the respondent on July 2001

initially as a lineman of electric posts. He was required to work from
Monday to Friday, from 8 o clock in the morning to 5 o clock in the
afternoon. He was also required to render overtime when it is
demanded by the nature of his work.

5. Throughout the months and years of being with Direct

Electrix from 2001 to August 03, 2018, the complainant was directed
to do works other than being a lineman, such as being a carpenter of
crates, assembler or dismantler of generator, and a pick up and
delivery man of generator.

6. Attached as Annex “A”, the identification card of the

complainant with Direct Electrix to prove that he was hired by the
respondents on May 21, 2001.

7. Attached as Annex “B-1 to B-77” are the various pay slips

of the complainant during his stay with Direct Electrix from 2004 to
2018. He started working with the company on 2001, however, the
pay slips for 2001, 2002, and 2003 were lost due to the great flood
Ondoy.

1
Hereafter, “complainant”, or “Bahian.”
2
Hereafter, “respondent corporation”, “Direct Electrix.”
3
Hereafter, “respondent”, or “Escudo.”
NCR-08-14017-18
Bahian vs. Direct Electrix Equipment Corporation and Daniel Escudo
Position Paper (for complainant)
 4

8. From 2001 to 2018, Direct Electrix would change its

Human Resources4 Department. Complainant has always been in
good standing in the company from the time he was employed. This
has always been the case even if Direct Electrix would change its HR
Department on a yearly basis.

9. There have been no reports of negligence or misconduct

on the part of the complainant. Complainant has never been served a
memo from the management all throughout his employment from
2001 until August 2018.

10. It was on August 03, 2018, wherein he was actually

illegally dismissed by the new HR Department headed by Cherry
Rose Valdez5.

11. He reported for work on August 03, 2018 at 8 o clock in

the morning. It was a stormy morning because of the impending
storm named “Ompong”. The task for that day was to pull out the
water pump from a boom truck so that they can change the bearings.

12. When he went back to the warehouse to return the

equipment he used for the task, Valdez commanded the security
guard to instruct the complainant to leave work and go home
because of allegedly not wearing a safety shoes.

13. Afterwards, the complainant explained to Valdez that his

safety shoes are totally worn out. The complainant even showed to
Valdez his worn out safety shoes explaining that it already got holes
in it and the water due to the rain is already seeping in making it
unfit for work.

14. Since 2001, it is Direct Electrix that issues the safety shoes
and it is being paid by the employees through monthly deductions in
their salaries. The complainant explained that he already requested
twice before the manangement for a new safety shoes because his old
safety shoes is not anymore usable. The complainant further
explained that he is just waiting for the new safety shoes to be issued
by Direct Electrix. The complainant respectfully showed before
Valdez that by the circumstances, he cannot anymore use the old
safety shoes.

4
Hereafter ,“HR Department.”
5
Hereafter, “Valdez.”
NCR-08-14017-18
Bahian vs. Direct Electrix Equipment Corporation and Daniel Escudo
Position Paper (for complainant)
 5

15. Despite all the complainant’s reasons why he cannot use

the safety shoes, Valdez still insisted to relieve him for work for that
day and not anymore report for work for the succeeding days.

Statement of the Case

16. On September 27, 2018, the complainant filed a complaint

before the NLRC against the respondents. Single Entry Aproach
hearings were conducted but the parties failed to come to an
amicable settlement of the case. The parties were instructed to file
their respective position papers on October 10, 2018. Hence this
submission.

Issues

a. Whether the complainant was illegally dismissed.

b. Whether the complainant is entitled to full backwages.

c. Whether the complainant is entitled for salary differential for

nonpayment of minimum wage, and separation pay.

d. Whether complainant is entitled for moral and exemplary

damages, and attorney’s fees.

Arguments and Discussions

The complainant was illegally dismissed.

17. Without an iota of doubt, the complainant was actually

illegally dismissed. It is worthy to note that the complainant was
hired as a regular employee of the corporation as its lineman,
carpenter, and a delivery man for almost 17 years.

18. Regular employment is defined under Article 280 of the

Labor Code:

ART. 280. Regular and casual employment. - The provisions of written

agreement to the contrary notwithstanding and regardless of the oral
agreement of the parties, an employment shall be deemed to be regular
where the employee has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer, except

NCR-08-14017-18
Bahian vs. Direct Electrix Equipment Corporation and Daniel Escudo
Position Paper (for complainant)
 6

where the employment has been fixed for a specific project or

undertaking the completion or termination of which has been
determined at the time of the engagement of the employee or where
the work or service to be performed is seasonal in nature and the
employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the

preceding paragraph: Provided, That any employee who has rendered at
least one year of service, whether such service is continuous or broken, shall
be considered a regular employee with respect to the activity in which he
is employed and his employment shall continue while such activity
exists.6

19. The complainant’s job as a lineman and general assembler

of the company was clearly necessary and desirable to the business of
the employer considering that they are producing, assembling and
fixing generators. In fact, the respondents render service to 2GO, SM,
Maynilad, Paper Mails, Cemix Cement, Lafards Cement and other
establishments that need generator for their busimess .

20. Further, complainant has been employed since May 21,

2001 and was actually dismissed on August 03, 2018. Hence, for
having rendered work for more than seventeen (17) years with Direct
Electrix, the complainant is deemed to be a regular employee.

21. As a regular employee, the complainant is entitled to the

twin notice rule for due process in our labor laws. In the case of
Electro System Industries Corporation vs NLRC7 the Supreme Court
explained the twin notice rule:

For termination of employment based on just causes as defined in

Article 282 of the Labor Code:

(i) A written notice served on the employee specifying the ground or

grounds for termination, and giving said employee reasonable
opportunity within which to explain his side.

(ii) A hearing or conference during which the employee concerned,

with the assistance of counsel if he so desires is given opportunity to
respond to the charge, present his evidence, or rebut the evidence
presented against him.

(iii) A written notice of termination served on the employee, indicating

that upon due consideration of all the circumstances, grounds have
been established to justify his termination.

6
Emphasis supplied.
7
G.R. No. 165282 October 5, 2005.
NCR-08-14017-18
Bahian vs. Direct Electrix Equipment Corporation and Daniel Escudo
Position Paper (for complainant)
 7

In dismissing an employee, the employer has the burden of proving

that the former worker has been served two notices: (1) one to apprise
him of the particular acts or omissions for which his dismissal is
sought, and (2) the other to inform him of his employer’s decision to
dismiss him.8 In Tan v. NLRC,9 it was held that the first notice must
state that dismissal is sought for the act or omission charged against
the employee, otherwise, the notice cannot be considered sufficient
compliance with the rules.

22. In this case, the respondents never bothered to give a

written notice to the complainant to allow him to know on what
ground is he being dismissed and also to allow him to explain his
side.

23. The complainant was dismissed right then and there on

August 03, 2018 upon the command of Cherry Rose Valdez, the
overall supervisor of Direct Electrix.

24. To the complainants utter detriment, there was not even a

hearing or a conference to respond to the charge against him and
show his evidence.

25. To a clear disregard of the complainants Constitutional

rights, the complainant was not given any formal notice that the
respondents are formally dismissing him from work.

26. All told, the complainant was clearly illegally dismissed.

The complainant is entitled to full

backwages.

27. Considering that the complainant is illegally dismissed,

he is entitled to his full backwages starting from the date he was
constructively dismissed up to the present date.

28. The High Court in the case of Peak Ventures Corp. and El
Tigre Security and Investigation Agency vs. Heirs of Nestor Villareal 8 ruled
that the twin reliefs that should be given to an illegally dismissed
employee are full backwages and reinstatement.

29. The complainant is not asking anymore for reinstatement

because of the strained relations between him and the respondents.
Hence, the complainant is entitled to a separation pay based on his
years of service from May 21, 2001 to August 03, 2018.
8
G.R. No. 184618, November 19, 2014.
NCR-08-14017-18
Bahian vs. Direct Electrix Equipment Corporation and Daniel Escudo
Position Paper (for complainant)
 8

The complainant is entitled for salary

differential for nonpayment of minimum
wage, and separation pay

30. Pursuant to Wage Order No.NCR-21 where the new

minimum wage rate is ₱512.00 effective November 2017. The pay
slips of the complainant with Direct Electrix from 2004 to 2018 are
attached to show that he was not paid the minimum wage for that
current year. To be Specific, on Annex “B-77”, where it shows a copy
of his pay slip for April 1-15 2018, he was paid ₱5,590 as his basic
salary for 12 days of work. This means that was he was paid ₱466 as
his daily salary. Clearly he was paid below the minimum wage. This
is wihout prejudice to the underpayment for his work from 2001 to
2017.

31. Consequently, the complainant is entitled to a complete

computation for holiday pay, premiums, and overtime pay based on
the correct minimum wage.

The complainant is entitled to moral

damages, exemplary damages, and
attorney’ fees.

32. The High Court in the case of Ventenella vs. Centeno9 stated
the rule when can moral damages be claimed:

Moral damages are recoverable only when physical suffering, mental

anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shocks, social humiliation, and similar injury are the
proximate result of a criminal offense resulting in physical injuries,
quasi-delicts causing physical injuries, seduction, abduction, rape or
other lascivious acts, adultery or concubinage, illegal or arbitrary
detention or arrest, illegal search, libel, slander or any other form of
defamation, malicious prosecution, disrespect for the dead or
wrongful interference with funerals, violation of specific provisions of
the Civil Code on human relations, and willful injury to property.

33. In this case, the complainant was subjected to a

discrimination that stepped on his dignity as a person. His being in
the service of Direct Electrix for more than 17 years cannot be
disregarded. The words of Valdez saying “pauwiin mo na yan at huwag
9
G.R. No. L-14333, January 28, 1961
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Bahian vs. Direct Electrix Equipment Corporation and Daniel Escudo
Position Paper (for complainant)
 9

mo ng papasukin” is an utter disregard of the respect due to the

complainant. The management should have atleast observed the due
process for dismissing laborers, if indeed complainant has violated
any of their rules. But in this case, the complainant was immediately
dismissed without observing the twin notice rule, thereby clearly
violating his constitutional right for security of tenure.

34. Having established that the complainant suffered moral

damages with the respondent, the complainant is also entitled for
exemplary damages. Article 2234 of the Civil Code of the Philippines
is pertinent to this case:

Article 2234. While the amount of the exemplary damages need not be proven,
the plaintiff must show that he is entitled to moral, temperate or compensatory
damages before the court may consider the question of whether or not exemplary
damages should be awarded.

35. Due to the actions of the respondents, the complainant

was forced to seek the advice of a counsel and ask for an assistance in
filing this position paper. Hence, it is proper that attorney’s fees be
awarded.

36. And, pursuant to Republic Act No. 9406 (An Act

Reorganizing and Strengthening the Public Attorney’s Office), sec. 16
- d thereof provides that "The costs of the suit, attorney’s fees and
contingent fees imposed upon the adversary of the PAO clients after
a successful litigation shall be deposited in the National Treasury as
trust fund and shall be disbursed for special allowances of authorized
officials and lawyers of the PAO.

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed that this Honorable Office declares that:

1) The complainant was illegally dismissed, thus, entitling him to

separation pay with full backwages;

2) The respondents pay the money claims of the complainant,

particularly, his unpaid salary, holiday pay.

3) For respondents to pay complainant damages in the amount of

P50,000.00 by way of moral damages and P30,000 by way of
exemplary damages; and

NCR-08-14017-18
Bahian vs. Direct Electrix Equipment Corporation and Daniel Escudo
Position Paper (for complainant)
 10

4) For respondents to give attorney’s fees of 10% of the total

award or in the amount of separation pay in lieu of
reinstatement and pursuant to RA 9406-The PAO law.

Other reliefs, just and equitable, under the premises are

likewise most respectfully prayed for.

City of Manila for Quezon City, October 02, 2018.

Department of Justice
PUBLIC ATTORNEY’S OFFICE
City of Manila District Office
4th Floor, Godino Building
350 A. Villegas Street, Ermita, Manila

By:

ISHMAEL Z. VINAS
Public Attorney I
Roll of Attorneys No. 71492
PTR No. 6896319/06-11-18/Makati
IBP No. 042047/05-09-18/Manila 4
Governing Boards No. 1, Series of 2008

Copy furnished:
DIRECT ELECTRIX EQUIPMENT
CORPORATION / DANIEL ESCUDO.,
Respondents
22 Narra Street, Cristina Subdivision,
Concepcion Uno, Marikina City NCR 1807

NCR-08-14017-18
Bahian vs. Direct Electrix Equipment Corporation and Daniel Escudo
Position Paper (for complainant)