Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

DANILO G. TAYAO,
Complainant;

-versus- NLRC NCR CASE NO. 10-13741-13

Hon. Rosalina Battung

FINMAT INTERNATIONAL RESOURCES INC.

/ MR. REYNALDO DE JESUS
Respondents.
x------------------------------------------------x

REPLY
(FOR THE RESPONDENTS)

RESPONDENTS, through counsel, unto the Honorable Office, most

respectfully state:

In their Position Paper, complainant alleged that he was forced to

resign by the respondents. This is a complete fabrication. It is very evident
from the facts of the case that the complainant VOLUNTARILY and
WILLFULLY RESIGNED from his position as ASSISTANT VICE
PRESIDENT (AVP) of the respondent company.

Thus, in the morning of August 18, 2014, complainant went to the

office of the president of the company, respondent DE JESUS, and
personally informed him that he is already RESIGNING effective
immediately. His resignation was ACCEPTED by the respondents. Thus:

Complainant: “Magpapaalam na ako, meron kse kumukuha sa akin.”

President: “Go on. No problem basta’t turnover mo lang lahat.”

According to the complainant, he was resigning from the company as

he was already EMPLOYED WITH A NEW CONSTRUCTION
COMPANY. However, since complainant was holding a sensitive position,
complainant and respondent De Jesus agreed that his LAST DAY with the
company will be on September 5, 2014 in order for the complainant to
PROPERLY TURN OVER all company files, records and properties in his

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possession. Complainant likewise told the President of the company that he
will be submitting his official resignation letter after their meeting. After the
meeting, respondent De Jesus immediately called upon Eleazar V. Samonte,
the Human Resource Manager, to inform him of complainant’s
RESIGNATION effective that date (August 18, 2014) and to see to it that
the complainant turns over all company records and properties in his
possession. When asked if it was true that he has already resigned,
complainant confirmed the same to Samonte and told him that he will
submit his resignation letter within the week. (See ANNEX 1).

As a result of his resignation, complainant no longer reported for work

regularly, as evidenced by his daily time record, a copy of which is hereto
attached as ANNEX 1 of this Reply.

In the meantime, Samonte, as per instructions from the president,

pulled from the personnel files two (2) persons as possible replacement to
the complainant and immediately scheduled them for an INTERVIEW.
Respondents even availed of the services of a professional “head-hunter” to
find a suitable replacement for the complainant. In the meantime, a senior
officer of the company was tasked to temporarily replace the complainant.
As evidenced thereof, attached herewith are the personnel records and office
memorandums as ANNEXES 2 and sub-markings of this Reply.

Unfortunately, complainant failed to either properly turnover company

in his possession or to submit his written resignation letter, prompting
Samonte, to follow up on the complainant by way of telephone calls, text
messages and written notices. (See ANNEXES 2, 3, and 4) Instead,
complainant filed a case for illegal dismissal.

It must be emphasized that the complainant is not any regular

employee of the respondents but a highly educated man and holding the
position of AVP. From the facts of the case, the complainant
VOLUNTARILY RESIGNED on August 18, 2014 which was promptly
ACCEPTED by the respondent company through its president.

In DIONISIO F. AUZA, JR. vs. MOL PHILIPPINES, INC., G.R. No.

175481, November 21, 2012, the High Court ruled that:

"Resignation is the formal pronouncement

or relinquishment of an office." The overt act of
relinquishment should be coupled with an intent to
relinquish, which intent could be inferred from the

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 acts of the employee before and after the alleged
resignation.”

In the case at bar, complainant personally went to the president of the

respondent company to announce his resignation effective that date is view
of the fact that he was already employed with another company. His
resignation was promptly accepted by the respondent company. Thereafter,
complainant personally confirmed to the Human Resource Manager that he
has already resigned and promised to submit his official written resignation
and to turn over all company records and properties. After that, complainant
no longer reported for work regularly, presumably to attend to his new
employer. From all the foregoing “overt acts”, it is very clear that the
complainant has already relinquished his position as AVP of the respondents.

A VERBAL RESIGNATION TENDERED BY AN EMPLOYEE

WHICH IS PROMPTLY ACCEPTED BY THE EMPLOYER CAN NO
LONGER BE WITHDRAWN.” (emphasis ours, CHAN, J. G., The Labor
Code of the Philippines Volume II, Revised Edition, 2009, p. 1084, citing a
decided case of the NLRC, see also (PHILIPPINES TODAY, INC. vs.
NLRC (G.R. No. 112965. January 30, 1997),

GENERALLY, AN EMPLOYEE WHO VOLUNTARILY RESIGNS

FROM EMPLOYMENT IS NOT ENTITLED TO SEPARATION PAY.
(Travelaire and Tours Corporation v. NLRC, 294 SCRA 505, August 20,
1998; Hinatuan Mining Corporation v. NLRC, 268 SCRA 622, February 21,
1997; Phimco Industries, Inc. v. NLRC, 273 SCRA 286, June 11, 1997.)

GENERALLY, HE IS LIKEWISE ESTOPPED FROM FILING ANY

FURTHER MONEY CLAIMS AGAINST THE EMPLOYER ARISING
FROM THE EMPLOYMENT.” (MA. JOY TERESA O. BILBAO vs.
SAUDI ARABIAN AIRLINES, G.R. No. 183915; December 14, 2011,
citing Alfaro v. Court of Appeals, 416 Phil. 310)

In his position paper, complainant claims that he was forced to give up

his position. Such BARE ALLEGATIONS deserve scant consideration.
Where is the proof that he was allegedly forced to resign? NONE. Without
any evidence, such BARE ALLEGATIONS are clearly BEREFT of any
merit. As CONSISTENTLY ruled by the Supreme Court.:

“Certainly, elementary as a hornbook

doctrine is the evidentiary rule in our jurisdiction
that bare allegations do not constitute evidence at

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 all, but the same are self-serving at best (Tuason v.
Court of Appeals 241 SCRA 295 (1995); “Bare
allegations, unsubstantiated by evidence are not
equivalent to proof, under the Rules of Court”
(Manzano v. Perez 362 SCRA 430 (2001); “(A)n
allegation in a pleading is not evidence but is a
declaration that has to be proved by evidence.
(Reyes v. CA, G.R. No. 147758, June 26, 2002);
“Allegations must be proven by sufficient evidence
–mere allegations is not evidence (Ramoran v.
Jardine Carb Life Insurance Co. Inc., 326 SCRA
208 (2000);

In the recent case of NELSON B. GAN vs. GALDERMA

PHILIPPINES, INC. (G.R. No. 177167, January 17, 2013), the Supreme
Court ruled that

xxx it is incumbent upon (the employee) to prove

with clear, positive, and convincing evidence that his
resignation was not volu ntary but was actually a case of
constructive dismissal; that it is a product of coercion or
intimidation. He has to prove his allegations with
particularity.

Gan could not have been coerced. Coercion exists

when there is a reasonable or well-grounded fear of an
imminent evil upon a person or his property or upon the
person or property of his spouse, descendants or
ascendants. Neither do the facts of this case disclose that
Gan was intimidated. In St. Michael Academy v. NLRC,
We enumerated the requisites for intimidation to vitiate
one’s consent, thus:

x x x (1) that the intimidation caused the

consent to be given; (2) that the threatened
act be unjust or unlawful; (3) that the threat
be real or serious, there being evident
disproportion between the evil and the
resistance which all men can offer, leading
to the choice of doing the act which is
forced on the person to do as the lesser evil;
and (4) that it produces a Since Gan

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 submitted a resignation letter, it is
incumbent upon him to prove with clear,
positive, and convincing evidence that his
resignation was not voluntary but was
actually a case of constructive dismissal;
that it is a product of coercion or
intimidation. He has to prove his allegations
with particularity.

On the other hand, respondents by way of documentary evidence,

have CONSISTENTLY shown that the complainant has VOLUNTARILY
RESIGNED from the company.

COMPLAINANT IS NOT ENTITLED

TO HIS MONETARY CLAIMS

In view of the VOLUNTARY RESIGNATION of herein complainant,

he cannot claim he was illegally dismissed. NEITHER is he entitled to any
of his money claims, including the EXORBITANT amount of more than
Php55 MILLION PESOS allegedly representing his “separation pay” and
“incentives”. SUCH CLAMS HAVE NO BASIS IN FACT OR IN LAW.

Complainant submitted a Certificate of Employment and

Compensation which provides, among others, that:

Monthly Salary: P75,000.00

Incentive : per project profit

He is apparently claiming the “Incentive” that requires the existence

of profit earned by respondent Finmat International Resources Inc. The
payment of “Incentive” heavily depends upon the existence of profits per
project. It is, therefore, in the nature of profit-sharing or bonus that is reliant
to earnings in excess of capital. Traders Royal Bank v. National Labor
Relations Commission, it was ruled:1

"A bonus is a 'gratuity or act of liberality of the

giver which the recipient has no right to demand as a
matter of right.’2 'It is something given in addition to
what is ordinarily received by a strictly due the recipient.'
1
189 SCRA 274 (1990); cited in Philippine Duplicators, Inc. v. NLRC, G.R. No. 110068,
15 February 1995, 311 Phil. 407
2
Citing Aragon v. Cebu Portland Cement Co., 61 O.G. 4567).

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 The granting of a bonus is basically a management
prerogative which cannot be forced upon the employer
'who may not be obliged to assume the onerous burden of
granting bonuses or other benefits aside from the
employee's basic salaries or wages . . . .’"3

The same ruling is found in Reyes v. NLRC,4 to wit:

Contrarily, in Boie-Takeda, the so-called

commissions paid to or received by medical
representatives of Boie-Takeda Chemicals or by the rank
and file employees of Philippine Fuji Xerox Co., were
excluded from the term basic salary because these were
paid to the medical representatives and rank-and-file
employees as productivity bonuses, which are generally
tied to the productivity, or capacity for revenue
production, of a corporation and such bonuses closely
resemble profit-sharing payments and have no clear
direct or necessary relation to the amount of work
actually done by each individual employee. Further,
commissions paid by the Boie-Takeda Company to its
medical representatives could not have been sales
commissions in the same sense that Philippine
Duplicators paid the salesmen their sales commissions.
Medical representatives are not salesmen; they do not
effect any sale of any article at all.

In all, the “Incentive” which complainant is claiming is not part of his

salary, hence, cannot be demanded as a matter of law or right. As there is no
profit to speak of, complainant is not entitled to any “Incentive.” In fact,
complainant failed to substantiate that respondent Finmat International
Resources Inc. has earned profits or such amount of money other than the
return of capital. While complainant had appended “LIST OF PROJECTS –
ONGOING,” these documents indicate the projects have not been
completed. Hence, as to whether or not profits will be realized is till
speculative. However, it is important to state that respondent Finmat
International Resources Inc. has not collected any profitable amount from
the clients mentioned in the said list.

3
Citing (Kamaya Point Hotel v. NLRC, 177 SCRA 160 [1989]).
4
G.R. No. 160233, 08 August 2007. Citations omitted. Emphasis supplied.

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 Concerning the “LIST OF COMPLETED PROJECTS” the same refer
to projects which are practical break-even undertakings of respondent
Finmat International Resources Inc.

It is hornbook rule that he who alleges must prove,5 as mere allegation

is not evidence, the basic evidentiary rule is to the effect that the burden of
evidence lies with the party who asserts the affirmative of an issue has the
burden of proving the same with such quantum of evidence required by law,6
in this case substantial evidence which is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion, even if
other equally reasonable minds might conceivably opine otherwise.7

THE INCENTIVE COMPLAINANT IS CLAIMING IS

NOT A REGULAR COMPANY PRACTICE

Plainly, complainant’s claim for “Incentive” is a contingent one

dependent on the realization of profits, hence, the complainant is not entitled
to such profit-sharing unless respondent Finmat International Resources Inc.
make profits.8 In Philippine Appliance Corporation v. Court of Appeals 9 it
was ruled that “(T)o be considered a ‘regular practice,’ however, the giving
of the bonus should have been done over a long period of time, and must be
shown to have been consistent and deliberate. The test or rationale of this
rule on long practice requires an indubitable showing that the employer
agreed to continue giving the benefits knowing fully well that said
employees are not covered by the law requiring payment thereof.”

The “Incentive” being claimed by complainant is not usually given to

him as, it must be stressed, the same is conditioned upon the availability of
profits. As it is, respondent Finmat International Resources Inc. is barely
making profits in view of the stiff competition it is experiencing due to a
growing number of companies engaged in the same construction business
and competing with it.

5
Reyes-Rayel v. Philippine Luen Thai Holding Corporation, et al., G.R. No. 174893, 11 July 2012
6
General Milling Corporation-Independent Labor Union v. General Milling Corporation,
G.R. No. 183122, General Milling Corporation v. General Milling Corporation-Independent
Labor Union, GR No. 183889, 15 June 2011, citing Aklan Electric Cooperative, Inc. v.
NLRC, 380 Phil. 225, 245 (2000).
7
Loadstar International Shippping, Inc. v. Heirs of the Late Enrique C. Calawigan, G.R. No. 187337, 05
December 2012, citing Oriental Shipmanagement Co., Inc. v. Bastol, G.R. No. 186289, 29 June 2010, 622
SCRA 352, 377.
8
See Eastern Telecommunications Philippines, Inc. v. Eastern Telecoms Employees Union,
G.R. No. 185665, 08 February 2012.
9
G.R. No. 149434, June 3, 2004, 430 SCRA 525, 532.

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 Based on the foregoing, complainant is not entitled to his claimed
“Incentive” as profits have not been sufficiently realized by respondent
Finmat International Resources Inc.

In connection with this, the Supreme Court has emphasized “that the
constitutional policy to provide full protection to labor is not meant to be a
SWORD TO OPPRESS EMPLOYERS. The commitment of this Court to
the cause of labor does not prevent us from sustaining the employer when it
is in the right. We should always be mindful that justice is in every case for
the deserving, to be dispensed with in the light of established facts, the
applicable law, and existing jurisprudence.” (MAGSAYSAY MARITIME
CORPORATION vs. NLRC; G.R. No. 186180, March 22, 2010)

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of the

Honorable Office to render judgment in favor of the respondents by
DISMISSING the present complaint.

As counterclaim, complainant should be ordered to pay the

respondents the amount of Php100,000.00 as moral damages, Php50,000.00
as exemplary damages, and Php50,000.00 for attorney’s fees. The award of
such damages is necessary in order to deter parties from filing clearly
unfounded suits which needlessly clog the dockets of the Honorable Office.

Other just and equitable remedies are likewise prayed for.

Quezon City, December 16, 2014.

.
ATTY. PEARLITO B. CAMPANILLA
Suite B 2nd Floor Overland Park Bldg.,
No. 245 Banawe St. cor. Quezon Ave., Quezon City
Roll 37522 / IBP Life 010564 2-3-12 Pasig
PTR 9019138 1-7-14 QC / MCLE IV - 0018064

COPY FURNISHED
DANILO G. TAYAO