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POSITION PAPER
FOR THE COMPLAINANT
WITH
FOR PRODUCTION, INSPECTION AND EXAMINATION OF THE “201 FILE” (PERSONNEL FILE) OF
THE COMPLAINANT IN THE POSSESSION OF THE RESPONDENT and THE COMPANY
MANAGEMENT-EMPLOYEE HANDBOOK
COMES NOW the complainant, through the undersigned counsel, and to the Honorable
Tribunal most respectfully alleges:
“Article 282 of the Labor Code provides that, An employer may terminate an
employment for any of the following causes: (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; and (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.”
The dismissal of the complainant in this case was based on a malicious, fabricated and
baseless charge of a crime for Qualified Theft for which he did not commit and which the
court subsequently acquitted him for the same, thus he did not deserve the supreme
sanction of dismissal, more so without due process. Neither is he guilty of serious
misconduct, gross and habitual neglect, fraud or willful breach of trust, or commission of a
crime against the employer or his family or representatives.
I. STATEMENT OF FACTS
3. Complainant’s last position in the company was Delivery Driver, but was originally
hired as Delivery Helper;
4. He was hired by the company sometime in the last week of January 2014 as Delivery
Helper and sometime in the 2nd week of August 2016, he was designated Delivery
Driver of the company;
5. He started with a Php 285.00 rate per day and with a 24 days work-month. He was
paid 13th month pay, night differential, overtime and his salaries were paid bimonthly
(for 2 weeks, 1-15 and for 2 weeks, 16-30) and remitted through BPI bank every 5th
and 20th day of every month, respectively;
6. His latest daily wage rate was Php 320.00 per day (as of August 18, 2017);
8. The complainant was a regular employee of the respondent company when he was
effectively terminated on August 18, 2017 when the company through its Warehouse
Supervisor, Dominador S. Arenas and Security Guard on duty, Johny T. Buentido had
him arrested by the police authorities on Qualified Theft charge (re: PP v. Alexander
C. Putac & Emil M. Rosario, Criminal Case No. 12345 for Qualified Theft, RTC
Branch 29, San Fernando City, La Union) for which he was subsequently acquitted by
the court; the dispositive portion of the same is herein reproduced to wit:
“xxx
SO ORDERED.
xxx.”
And even after herein complainant was acquitted by the court, he never received any
communication from the company regarding his status as employee of the company,
thus herein complainant believes he was illegally dismissed as a result of the malicious
charge of Qualified Theft lodged against him;
10. The illegal dismissal/termination of herein complainant based on the qualified theft
charge was without due process; herein complainant was never afforded the two (2)
notices required by law, nor was given a chance to explain and prove his innocence of
the charge in an internal, impartial administrative proceeding;
11. Prior to the time he was arrested, he was driving back the delivery van of the company
coming from a delivery trip Baguio City Customers and was in the company of one,
Marcos Gurtiza and one, Victorio Magno. Upon his arrival at the company’s
warehouse premises at around 7:00 o’clock in the evening to unload undelivered
merchandise, the warehouse supervisor, Dominador Arenas was already waiting for
him at the parking lot at the back of the warehouse, and he was immediately arrested
(to use the words of the company, “by virtue of a citizen’s arrest”) by the warehouse
supervisor together with the Security Officer, Johny Buentido, who was on duty that
fateful night of August 18, 2017 and was subsequently turned over to the police
authorities (together with his alleged accomplice, Alexander C. Putac) of San Fernando
City, La Union they called upon to arrest him without the benefit of any internal
investigation nor having been formally notified of his violation or crime committed, he
was just simply arrested;
13. On July 11, 2018 the complainant sought the legal assistance of the Single Entry
Approach (SEnA) of this Honorable Commission. It issued a notice of conference
dated July 11, 2018 to the respondents. It set the mediation on July 26, 2018 and
14. The complaint was thus referred filed with this Honorable Commission through
the office of the Honorable Labor Arbiter, NLRC RAB-1, San Fernando City,
La Union.
(A copy of the complaint is herein attached and marked as Annex “D” – Complaint
dated August 1, 2018).
15. The conference/meeting between the parties were set by the Honorable Labor
Arbiter on August 16, 2018 attended by herein complainant in the company of his
counsel, Atty. Jaime C. Gonzales, Jr., and respondent was represented by Atty. Joe
Magpili, a representative from the company’s legal counsel, Atty. Emmanuel S. Ugay;
16. No compromise was reached at the office of the labor arbiter. Thus the Arbiter
ordered the parties to simultaneously file their respective position papers on August
29, 2016, at 10:00 o’clock in the morning before the office of the labor arbiter;
17. The illegal dismissal of herein complainant caused him and his family to suffer
and continue to suffer financial difficulties as he is helping to support his parents
with their daily household financial requirements and in the schooling of his
younger sibling;
Their family life and psychological well-being as a family have been terribly
traumatized, tortured, disturbed, inconvenienced, and shamed to this very day;
and
18. The illegal acts of the respondents caused the complainant extreme psychological
trauma and anxieties, sleepless nights, besmirched reputation and social
humiliation. He deserves an award of MORAL DAMAGES of P500,000.00,
pursuant to the Civil Code. He likewise deserves an award of EXEMPLARY
DAMAGES of P500,000.00 to serve as a lesson to society, pursuant to the same
Code. Further, he deserves an award of attorney’s fees equivalent to Ten Percent
of the damages awarded, pursuant to the Labor Code.
a. Salaries from the time of illegal dismissal up the final resolution of this
case;
c. Paid vacation leaves of 15 days per annum starting 2017 until final
resolution of this case;
d. Holiday pay;
e. 13th month pay starting year 2017 until final resolution of this case; and
II. ISSUE
20. The sole issue is whether or not the complainant is entitled to the reliefs prayed
for in his complaint on the ground of illegal dismissal, that is, payment of
backwages, separation pay, holiday pay, other money claims, moral and exemplary
damages, and attorney’s fees.
III. DISCUSSION
He was then on duty that day from (official regular time) 8:00 AM to 5:00 PM and was
coming back from a delivery trip from Baguio City; arrived at the company’s
warehouse at around 7:00 o’clock in the evening; and upon arrival was met by the
warehouse supervisor, Dominador Arenas, who immediately effected his arrest (by
virtue of a citizen’s arrest) together with the company security officer, Johny Buentido,
who was on duty that night, on the basis of an alleged violation/crime committed by
him for Qualified Theft (see Annex “B” herein attached);
He was held/sequestered at the parking lot at the back of the warehouse until the police
authorities arrived and finally brought him to the police station in San Fernando City,
La Union for investigation and finally was booked and placed behind bars that same
night;
He was imprisoned for seven (7) days, from August 18 - 24, 2017 until he posted bail
for his temporary liberty;
From the time of his arrest until he was finally acquitted of the charge and until to
date, he never received his salary and was never issued any notice or communication
on the matter; and
Even prior to his arrest and incarceration, he was never issued any formal notice of
violation, no administrative hearings (due process and opportunity to be heard) were
held to discuss any problem, or resolve it amicably, and hear his side. His right to due
process of law as mandated by the 1987 Constitution and more specifically by the
Labor Code was violated;
22. Article 277 of the Labor Code provides for the DUE PROCESS OF LAW:
“x x x.
(b) Subject to the constitutional right of workers to security of tenure and their
right to be protected against dismissal except for a just and authorized cause
and without prejudice to the requirement of notice under Article 283 of this
Code, the employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a statement of the
causes for termination and shall afford the latter ample opportunity to be
heard and to defend himself with the assistance of his representative if
he so desires in accordance with company rules and regulations promulgated
pursuant to guidelines set by the Department of Labor and Employment.
Any decision taken by the employer shall be without prejudice to the right of
the worker to contest the validity or legality of his dismissal by filing a
complaint with the regional branch of the National Labor Relations
Commission. The burden of proving that the termination was for a valid
or authorized cause shall rest on the employer.
Position Paper for the Complainant,Emil M. Rosario vs. Napintas
Page 7 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
The Secretary of the Department of Labor and Employment may suspend the
effects of the termination pending resolution of the dispute in the event of a
prima facie finding by the appropriate official of the Department of Labor
and Employment before whom such dispute is pending that the termination
may cause a serious labor dispute or is in implementation of a mass lay-off.
(As amended by Section 33, Republic Act No. 6715, March 21, 1989).
x x x.”
23. Article 279 of the Code provides for the SECURITY OF TENURE of a worker:
“x x x.
x x x.”
24. Article 282 of the Code speaks of the just GROUNDS to dismiss an employee.
“x x x.
x x x.”
25. The complainant is NOT guilty of any of the foregoing grounds provided for by
law on just grounds to dismiss an employee;
“x x x.
Given the foregoing, Cadiz, therefore, is entitled to reinstatement
without loss of seniority rights, and payment of backwages computed
from the time compensation was withheld up to the date of actual
reinstatement.
27. In the case of NEW PUERTO COMMERCIAL, ET. AL. VS. LOPEZ, ET. AL.,
GR NO. 1699999, JULY 26, 2010, discussed DUE PROCESS OF LAW in labor
cases.
“x x x.
x x x.”
x x x.”
29. In the interest of fair play, the complainant hereby moves for the production,
inspection and examination of his 201 File (Personnel File) and the Company
Management-Employee Handbook, and to provide copy of the same to herein
complainant, which are with the respondent company, so that he can improve his
defenses and arguments based on the contents thereof, if any. He intends to discuss
the same in his REPLY POSITION PAPER to be filed in future hearings and/or
pleadings.
V. PRAYER
FINALLY, granting the complainant such other reliefs as may be deemed just and
equitable in the premises.
Position Paper for the Complainant,Emil M. Rosario vs. Napintas
Page 11 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
San Fernando City, La Union, August 29, 2018.
REYNALDO M. MOSUELA
JAIME C. GONZALES, JR.
Counsel for the Plaintiffs
NORTESURLU Bldg., Purok 3, Sevilla
San Fernando City, La Union
By:
I, EMIL M. ROSARIO, being duly sworn in accordance with law, depose and
state that:
I am the complainant in the above-entitled case; I have caused the filing and
preparation of this position paper; and I have read the contents thereof and declare
the same to be true tot he best of my knowledge.
I certify that I have not heretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency and, to the
best of my knowledge, no such other action or claim is pending therein; and if I
should thereafter learn that the same or similar action or claim has been filed or is
pending, I shall report that fact within five (5) days therefrom to the court wherein
the aforesaid complaint or initiatory pleading has been filed.
EMIL M. ROSARIO
Affiant
___________________________
Administering Officer