Atty. Manuel J. Laserna JR.: Sample Position Paper in A Labor Case

Atty. Manuel J. Laserna Jr.
: Sample Position Paper in a labor case 12/3/19, 3:16 PM
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Las Pinas City, Metro Manila, REPUBLIC OF THE PHILIPPINES
Philippines DEPARTMENT OF LABOR AND EMPLOYMENT ▼ November (51)
MANUEL J. LASERNA JR.- NATIONAL LABOR RELATIONS COMMISSION Sample "Comment" to

Admitted to the Bar in 1985 (3rd NATIONAL CAPITAL REGION "Offer of Evidence"
placer, 1984 bar exam, 90.95%). PPSTA BLDG., BANAWE AVE., QUEZON CITY Sample expanded
Law professor of FEU, Manila, VERIFIED
1985 to 2006 (ret.). Educ.: AB RESPONSE in a
OFFICE OF LABOR ARBITER x x x small claim...
Journ., UP, Diliman, QC, 1975;
Bachelor of Laws (LL.B.), cum ROOM 311, 3RD FLOOR, PPSTA BLDG.
Sample Construction
laude, FEU, 1984; Master of Contract
Laws (LL.M.), UST, (cand.),
Prejudicial Question
Manila [as FEU fellow, 1998- X x x x, in Criminal Case;
2000]. Honors: 3rd placer, 1984 sample Repl...
Complainant,
Bar Exams (90.95%; only 22%
NLRC RAB NCR Sample "motion for
passed); Meralco pre-law
- Versus - CASE NO. NCR- disqualification" of
scholar; Cocofed law scholar;
a governme...
Cocofed management scholar X x x.
(AIM, Makati); FEU fellow (LLM, X x x , INC. Sample Counter
UST). Bar leader in southern Appeal
X x x; AND Memorandum
Metro Manila area since 1995.
X x x,
Founded Las Pinas City Bar Sample Position
Respondents. Paper in a labor
Assn (2001). Served as
director/sec./vice pres., IBP x-------------------------------------------------------x case
PPLM Ch., 1995-2007. Email - Ombudsman hits
lcmlaw@gmail.com. Social revision of history
Media: amid Marcos bur...
POSITION PAPER
"facebook.com/attymannylasern
FOR THE COMPLAINANT Decriminalization or
ajr" and "twitter.com/lcmlaw_ph". outright legalization
WITH
View my complete profile of mari...
URGENT EX PARTE MOTION
FOR PRODUCTION, INSPECTION AND EXAMINATION OF THE “201 Don’t let scammers
take away your
Popular Posts FILE” (PERSONNEL FILE) OF THE COMPLAINANT IN THE POSSESSION holiday cheer - ...
OF THE RESPONDENTS
Death of party after
Qualified theft defined; proper
finality of judgment
penalty explained
of nulli...
Item No "x x x. The elements of
the crime of theft as provided for The COMPLAINANT, pro se, respectfully states: Good constitutional
in Article 308 9 of the Revised proposals from
Penal Code are as follows: (1) former Comelec ...
t...
I. STATEMENT OF FACTS International Criminal
"Condemn Duterte Court urged to
Even If You’re A probe Dutert...
Supporter. Your man 1. The complainant is XXX XXX XXX, 44 years old, Filipino, and
Presidential immunity
may win and become residing at x x x.
from suit under the
president but in the process you
1987 Con...
http://attylaserna.blogspot.com/2016/11/sample-position-paper-in-labor-case.html Page 1 of 18
Atty. Manuel J. Laserna Jr.: Sample Position Paper in a labor case 12/3/19, 3:16 PM
have lost. In making him a 2. The three respondents in this case are the following:
winner you have made yourself A FUGITIVE
a loser. " FOREFEITS HIS
(a) XXX XXX AND XXX, INC. (corporate employer); RIGHT TO
See - X - Condemn Duterte
PRIVACY
Even If You’re A Supporter "x x
THROUGH ...
x. By: Carlos S. Hernandez Jr.
When he advocated for (b) Ms. “Xxx” Xxx, VP for HR Business Partner –Gaming (now
PUBLIC FIGURE,
extrajudicial killings ,... the Vice President – Human Resource Department); and DEFINED.
Oral defamation, slander - G.R. RIGHT OF PRIVACY

No. 160351 (c) Mr. Xxx Xxx, Chairman of XXX. They hold office at the
Executive Offices, XXX XXX, xxx Ave., xxx City, xxx, xxx City. Freedom of speech
See - G.R. No. 160351 "x x x.
and expression
The issues are: (1) whether the
protects
Court of Appeals erred in
3. His position in the company was xxx Supervisor. commerci...
sustaining the conviction of
petitioner ... Principle of
4. He was hired by the company on January 7, 2013. "complementarity"
Estafa (deceit/swindling) under of the
Art. 315, Rev. Penal Code Internationa...
For legal research purposes of 5. He started with a Gross Annual Salary of P937,107.69. He was paid
my readers, may I share the Writ of amparo,
a Gross 13th Month Pay of P78,092.31 per annum. His salaries were habeas data -- The
jurisprudential part of a motion
for reconsideration I have just paid to him every 15th and 3oth day of the month (with the “cut off” failure of gov...
filed with the... dates of 5th day and 2oth day of each month). He started with a "Totality of evidence"
monthly P84,600.00. rule
Titling of public lands
For purposes of legal research Doctrine of command
of foreign readers visiting this 6. His latest monthly salary amounted to P85,431.90/month (as of May responsibility
blog, on the subject of the legal
8, 2015). Presidential immunity
system involving the titling of
public la... from suit
7. He was provided the following benefits during his tenure: Grant of interim
Estafa; sample counter-affidavit reliefs, protection
Below is a sample counter- orders in wri...
affidavit prepared by Atty. a. Rice Subsidy – one sack/month. Its value was
Manuel J. LAserna Jr. involving converted to cash at P1,000/month. Writ of habeas data
Estafa undergoing preliminary
b. Service Charge – latest amount thereof as of May The writ of amparo is
investigation bef...
2015 was P2,993.13/month. an extraordinary
and indepen...
CRIMINAL NEGLIGENCE OF c. Paid leave credits of twenty five (25) days/annum.
DRIVERS AND OPERATORS; d. Free meals (once per duty day). Powers of Solicitor
applicable laws; penalties; civil General in criminal
liabilities. e. Health insurance – for himself and one of his children
cases - G....
Reckless imprudence vis-à-vis (Bill Cameron E. Xxx, 17 years old [2015], student of
simple negligence . - Art. 365 Extrajudicial
Far Eastern University, BS Psychology). foreclosure; special
of the Revised Penal Code
provides that “ reckless f. Life insurance – with a face value of P280,000.00. power of attorn...
imprudence cons...
Intemperate language
8. See the following documents in support of the foregoing statements: and unprofessional
Jurisdiction of Philippine courts
behavior o...
I am presenting below a brief
digest of the jurisdiction of · Annex “A” - EMPLOYMENT OFFER, dated November Bail in non-bailable
Philippine courts as contained in offenses - A.M. No.
23, 2012;
BATAS PAMBANSA Blg. 129, as RTJ-14-23...
amended. for the ... · Annex “B” – COMPUTATION OF ANNUAL INCOME
Psychological
AND WITHHOLDING TAX AS
Judicial affidavit; expanded incapacity to marry
sample format OF THE YEAR 2015. - Villalon vs Vi...
REPUBLIC OF THE Retiring justices;
PHILIPPINES xxx Judicial Duterte to appoint
Region REGIONAL TRIAL 10 new justi...
COURT xxx, Rizal Branch No. 9. In a Letter, dated January 28, 2014, issued by Mr. xxx xxx, Chief
xx HEIRS OF SPS. SERAFIN Operating Officer and President, for his “valuable contributions” to Sen Leila de Lima's
xxx AND L... the company, he was given a BONUS based on his base pay as of Writ of Habeas
Data Petition -...
Contract to sell vs. contract of
September 30, 2013. It was released on installment basis. It was
sale explained - G.R. No. subject to certain conditions stated in the said Letter. MEL STA. MARIA |
188064 Holding the
Supreme Court
G.R. No. 188064 (click link) "x x
A copy of the said Letter, dated January 28, 2014, is attached as account...
x. The Court’s Ruling The
petition lacks merit. The Court Annex “C” hereof. Joint statement of
agrees with the ruling of... Liberal Party
Senators on the
10. The complainant was a regular employee of the
P...
respondent company when he was terminated on May 8, 2015 having
Links served it for more than one year as of that date.
When we no longer
cry |
Ltigation, Appeals, Justice INQUIRER.net

System - Laserna Cueva- 11. He was imposed the following penalties for TARDINESS: When a Populist
Mercader Law Offices
Demagogue Takes
Power - The New
(a) On March 15, 2014, a WARNING was annotated by the Pit Yo...
Followers Manager in the complainant’s record in the TEAM TRACK, where
SC reinstates lawyer
the daily monitoring of deviations and commendations of
Mga sumusubaybay (334) previously
Susunod employees are encoded). disbarred for CPR
...
As shown in a Notice to Explain, dated 11 April 2014, issued by the The truth about Loida
Human Resource xxx – xxx Department headed by respondent Xxx Nicolas Lewis
Xxx, the complainant was penalized for twelve instances of How the Judicial and
tardiness, the dates of which were stated in the said Notice (between Bar Council works
the period March 12, 2013 to February 19, 2014). Next 3 years 'critical
test' for Judicial
and Bar ...
The Notice cited Sec. VI, Article XX (Punctuality and Attendance
15A) of the TEAM MEMBER CODE OF GOOD BEHAVIOR Sec. 23, Rule 119,
Demurrer to
(TMCGB). Evidence in
Crimina...
Pursuant to the said Notice, he submitted to the office of the The Scarborough
Sundin
respondent Xxx Xxx one original copy of his handwritten vivendi
EXPLANATION (He did not prepare an extra file copy for himself). Why Duterte wants to
give Marcos a
hero's burial -...
See Annex “D” – NOTICE TO EXPLAIN, dated 11 April 2014.
Constitutional Law
(Spring 2015) -
(b) On May 7-9, 2014 he was SUSPENDED FOR THREE DAYS. He
YouTube
had misplace his copy now of the suspension order.
Torture, Law, and War
Conference -
© On July 13-18, 2014 he was SUSPENDED FOR SIX DAYS. He had YouTube
misplace his copy now of the suspension order. Some of his tardiness
Evidence Lectures -
before such suspension were caused by the street blockage due to the Prof. Charles H.
on-going construction and/or improvement of the road where the Rose III - Yo...
Casino was located. Roads closed,
contingency plans
ready for 2016
In the early part of 2015 some of his tardiness were caused by the heavy Bar...
traffic due to the papal visit of Pope Francis.
OPINION: Supreme
Court in the dock |
After his six-day suspension on July 13-18, 2014, he recall that he was ABS-CBN News
late only once, i.e., January 15, 2015. ARMM Regional
On May 8, 2015 at about 2:00 PM to 4:00 PM the complainant was Governor Mujiv
ABRUPTLY AND VERBALLY DISMISSED FROM EMPLOYMENT by Hataman has
endorsed ...
the respondent Xxx Xxx in the presence of his immediate superior xxx
xxx (xxx Manager) inside the room of Xxx Xxx. Adoption; legal effects
of.
(He recall that he had only one or two tardiness before May 8, 2015). ► October (27)
► September (16)
He was then on duty from 7:00 AM to 3:00 PM.
► August (36)
He was sequestered by Xxx Xxx inside her room. ► July (40)
► June (24)
He was threatened and forced by Xxx Xxx to IMMEDIATELY
► May (34)
RESIGN. Otherwise, she would TERMINATE him (that would
surely affect his future employments in other entities, if any). ► April (92)
► March (91)
No prior notice to explain was issued to him.
► February (109)
No formal charge was filed against him. ► January (82)
► 2015 (778)
No administrative hearings (due process and opportunity to be
heard) were held to discuss the problem, resolve it amicably, and ► 2014 (339)
hear his side. His constitutional right to due process of law was
► 2013 (468)
violated.
► 2012 (670)
No lawyer for company was present to explain the situation from the ► 2011 (489)
point of view of Labor Law. ► 2010 (285)
► 2009 (235)
He was not given the chance to confer with a lawyer of his choice.
His constitutional right to counsel was violated. ► 2008 (182)
► 2007 (114)
He was not allowed to confer with his wife who was also employed in
XXX.
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For two hours he was forced to stay inside the room of the
respondent Xxx Xxx and/or within its immediate premises inside
8,119,289
the HR area near the room od Xxx Xxx. He was treated like a
prisoner.
Inside the room of respondent Xxx Xxx he begged her for three
days to think about the former’s order for him to issue
immediately on the spot a handwritten resignation letter.
Xxx Xxx denied the request. She forced him to write on the spot a
handwritten resignation letter. She threatened him with
TERMINATION.
He was not allowed to go to his locker to get his mobile phone to call
his wife to confer with her.
He was not allowed to go to the toilet.
He was not allowed to call up a lawyer.
He was not read the charges against him, if any.
Neither was there a notice of decision dismissing him from

employment.
Only after two hours of forcible sequestration inside the room of

the respondent Xxx Xxx was he allowed to go home.
12. As instructed, after three days, he returned to the office of the

respondent Xxx Xxx (May 11, 2015 or thereabout) to turn over to her
staff over a copy of his TMCGB (employees manual), xxx xxx
MANUAL, and his health insurance card.
(He was unable to turn over to the HR staff the health insurance card
for his child xxx Xxx because the complainant had misplaced it at that
time. Hence, we was charged P200.00 for such loss).
The HR staff gave him the contact numbers of the staff

COMPENSATION AND BENEFITS (COMPENBEN) Office, which was
also under the HR Dept., to follow up his receivable salaries and other
employee benefits, namely xxx xxx with Tel. No. xxx. and xxx with
Mobile No. xxx.
He was told by the HR staff to call from the said COMPENBEN staff
after three or four months.
13. RECEIVABLE SALARIES AND OTHE REMPLOYEE

BENEFITS
The receivable salaries and other employee benefits of the

complainant as of May 8, 2015 (date of illegal termination) were as
follows:
· Salaries for three days - P9,826.03;

· Unclaimed leave credits good for 4.5 days -
P14,739.05;
· Service charge - April 2014 - P1,210.32;
· Service charge - May 2014 - P2,993.13;
· Refundable income tax - P25,189.07.
The total of the foregoing items was P53,357.60.
Per company policies, the company DEDUCTED the

amount of P88,417.11 from the receivables of the
complainant, broken down as follows:
· Phase 1A bonus - P30,889.11; and

· Loyalty bonus = P57,528.00.
He was told he still had to pay the company the net

amount of P35,059.51.
(Refer to Annex “B”, supra).

When the complainant reviewed the figures, it appears that
the respondents overcharged the complainant by
P7,809.39 representing taxes on his 13t month pay for
2014 and the first five months of 2015. (See Annex “B-1”).
14.Sometime in August 2015, the complainant called up COMPENBEN

five times. He was told no company action has been done yet.
Sometime September 2015 he called up the said office six times. He

was told no company action has been done yet.
Sometime in October 2015 he called up again the said office. This

time, he was told he was still “NEGATIVE”.
He was being ordered to pay the company P35,059.51 before he
could be cleared and his Certificate of Employment released to
him.
15. As earlier stated, his wife xxx xxx is employed with the corporate
respondent Xxx. Her position is that of a “xxx Manager 2 – xxx”. She
started working with the company in November or December 2012 or
thereabout up to the present time.
16. The complainant applied with xxx xxx xxx (a new xxx company to be
opened in December 2016 or thereabout) for the position of xxxx
SUPERVISOR – xxx for a (reduced) salary P45,000.00/month.
He was supposed to be hired by the said company in Oct 2016 or

thereabout. But he could not get his CERTIFICATE OF
EMPLOYMENT (COE) from the respondent Xxx unless he would
first pay the company the amount of P35,059.51 that it was

demanding.
On October 5, 2016 the complainant sought the legal assistance of the Single
Entry Approach (SEnA) of this Honorable Commission. It issued a notice of
conference dated October 5, 2016 to the respondents. It set the mediation on
October 19, 2016 at 10:00 AM. No compromise was reached. The
respondents were then represented by Atty. xxx.
See the following documents as proofs thereof:
· Annex “E” - NOTICE OF CONFERENCE, dated

October
5, 2016.
· Annex “F” - MINUTES OF CONFERENCE, dated
October 19, 2016; and
· Annex “G” - REFFERAL, dated October 26, 2016.
17. The complaint was thus referred filed with this Honorable
Commission. It was raffled to the Honorable Labor Arbiter xxx xxx.
See the following documents:
· Annex “H” – COMPLAINT, dated October 26, 2016.

· Annex “I” – MINUTES, dated November 11, 2016.
18.No compromise was reached at the office of the labor arbiter. Thus the
Arbiter ordered the parties to file their respective position papers on
November 29, 2016.
19. The complainant has written the HR Department of the respondent company
to provide him with a complete copy of his 201 File (Personnel File) because
he would need its contents to support his position paper.
The HR staff xxx xxx simply received it without any favorable action. He made
an annotation thereon that the said 201 File of the complainant had been
“pulled out”. By whom, to whom forwarded, and for what purpose, he did not
state. Only the birth certificate and transcripts of schools records were given to
the complainant.
See Annex “J” – LETTER of the complainant duly received by HR-

CompenBen Staff Jerson Balandra on November 17, 2016.
20. For whatever legal purposes it may serve, considering that the
credentials of the complainant are relevant to his position paper, he is
attaching herewith his BIODATA, TRANSCRIPTS OF SCHOOL RECORDS,
AND DIPLOMA marked as Annex “K” with submarkings.
21. To prove his good past employment performance and status, attached hereto
are copies of various certificates of service/employment and testimonials
issued by his previous employers from 1994 to 2012 (x x x, x x x , x x x x, x x
x ) marked as Annex “L with submarkings.
22. His National Bureau of Investigation (NBI) Clearance (valid

until September 21, 2017) is attached as Annex “M” hereof to prove his good
moral character.
23. The family home of the complainant in x x x x was

foreclosed by the xxx Bank of xxx City in January or February 2015 or
thereabout. Due to the illegal dismissal of the complainant on May 8,

2015, he was unable to save enough funds to REDEEM the property
within the one-year redemption period.
They continue to suffer financial difficulties to support their three young

children, two of whom are students and the youngest is only two years
old.
Their family life and psychological well-being as a family have been

terribly traumatized, tortured, disturbed, inconvenienced, and shamed to
this very day.
This is one reason that nullifies the accusation of the respondents that the
complainant had allegedly resigned voluntarily. Who would resign from his
well-paying job amidst his unpaid mortgage loan in the bank?
To prove the foregoing statement, see the following annexes:
· Annex “N” with submarkings – LETTER, dated

November 21, 2016, to xxx Bank asking for a certification
to prove the foreclosure of their family home.
· Annex “O” with submarkings - xxx Bank records of their

mortgage loan, copy of the land title of the foreclosed
family home, and proof of foreclosure of their family home
(which he hopes to secure on November 28, 2016, if time
allows).
The illegal acts of the respondents cause 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.
II. ISSUE
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, reinstatement, backwages, money claims,
and moral and exemplary damages, and attorney’s fees.
III. DISCUSSION
24. A copy of the relevant parts of the TMCGB (employees’

manual/handbook) is attached as Annex “P” hereof with
submarkings.
Article X of the TMCGB contains the DUE PROCESS PROCEDURE

of the respondent company.
The respondents violated the provisions or steps described

hereinbelow.
Step One refers to the Counselling Procedures:
(a) The supervisor shall personally inform the employee of the

deviation.
(b) A productive counselling and discussion shall be held.
(c) Agreements shall be documented in a “behavior contract”
(Team Member Improvement Plan [TMIP]).
(d) The employee shall submit a TMIP (a commitment to
improve).
(e) The TMIP shall be signed by the supervisor and the
employee.
(f) The supervisor shall assist the employee to improve within
a 30-day period.
(g) Counselling shall be done.
(h) The supervisor shall note the proceedings in his logbook.
It is assumed that the TMIP and other related documents

shall form part of the 201 File of the employee.
Step Two refers to the procedures for Written Explanation:
(a) The supervisor requires the employee to submit a written

explanation within forty eight hours from the occurrence of the
deviation.
(b) A “show-cause memo” will be issued.
(c) There shall be a “fair hearing”.
(d) Failure to submit a written explanation is deemed a waiver of
one’s right to be heard.
It is presumed that the foregoing proceedings are

documented in the 201 File of the employee.
Step Three refers to the procedures for FACT-FINDING BY IMMEDIATE

SUPERVISOR (not by the Vice President for Human Resource
Department headed by respondent Xxx Xxx).
(a) The employee files the written explanation.

(b) The supervisor gathers the facts “with HRD assistance”.
(c) He makes the recommendations (presumably to the HR
Dept. and to the employee).
(d) The employee is given an “AMPLE OPPORTUNITY TO
BE HEARD” during the fact-finding exercise by the
supervisor.
(e) There shall be an ADMINISTRATIVE HEARING where
the imposable penalty is DISMISSAL.
(f) The supervisor may do the fact-finding with the
representative of the employee. (It presupposes the employee
must be notified of such a right).
(g) The supervisor then submits his recommendations to his
next-level superior. He uses the “Notice of Corrective
Action” for the purpose.
(h) The next-level superior reviews the recommendation. He
will forward his findings to the HR xxx (i.e., respondent Xxx
Xxx).
(i) The “HRA” evaluates the findings/recommendations.
(j) She endorses the same to the Department Head of the
employee.
(k) The Department Head decides within twenty four hours
from receipt of the findings/recommendations.
(l) The MINUTES OF THE MEETINGS shall be duly signed
and made available to all concerned (presumably,

including the employee) within twenty four hours.

Step Four refers to APPEAL PROCEDURE.

(a) Within 15 days from receipt of the Decision of the Department
Head (not the respondent HR Business Partner, Xxx Xxx) the
employee may submit an APPEAL to the TEAM MEMBER
BEHAVIOR ACTION REVIEW PANEL (again, not the HR
Business Partner, respondent Xxx Xxx).
(b) The said Panel is convened by the MANAGEMENT.

Step Five refers to the TEAM MEMBER BEHAVIOR ACTION

REVIEW PANEL.
(a) The Department Head recommends the referral of the

issue to the TEAM MEMBER BEHAVIOR ACTION
REVIEW PANEL.
(b) The referral is addressed to the HR Business Partner
(respondent Xxx Xxx).
(c) The HR Business Partner convenes the Panel.
(d) The Panel shall be composed of the HR Business
Partner as the presiding officer, the Division Head as
the deputy presiding officer, the Security Director, one
Neutral Manager, and the Vice President for Human
Resource and Administration (HRA).
(e) The Panel shall be “duly constituted” in writing.
(f) It shall conduct a “thorough fact-finding”.
(g) It shall submit its recommendations within five working
days from date of constitution.
(h) The legal/constitutional rights of the employee
shall be respected during this whole process.
(i) If the penalty imposed on an employee with a rank
lower than Director position is DISMISSAL, it is subject
to JOINT AUTOMATIC REVIEW by the Vice President
for HRA and the Chief Operating Office (COO).
(j) The Panel decides by consensus.
(k) The dissenting opinions within the Panel shall be in
writing.

Article XI refers to the graduated scale of penalties from

CORRECTIVE ACTION/DECISION, CORRECTIVE COUNSELLING (CODE:
CC), WRITTEN WARNING (CODE: WW), SUSPENSION (CODE: S), AND
DISMISSAL (CODE: D).
The graduated scale of the penalty of SUSPENSION ranges from
THREE DAYS TO THIRTY DAYS.
DISMISSAL is the worst of all the penalties. It is xxxed to only
after a “THOROUGH FACT-FINDING HAS BEEN DONE.”
The TMCGB empowers the Department Head, Division Head, Vice
President – Human Resources and Administration (respondent Xxx Xxx), and
xxx (respondent Xxx Xxx) to DISMISS an employee and a supervisor.

This power presupposes the prior observance of the DUE
PROCESS rules stipulated in the TMCGB, supra.
A written NOTICE OF CORRECTIVE ACTION shall be served on
the employee.
Article XIV refers to the DOCUMENTATION of the disciplinary
process. Complete reports are required. This means the 201 File of the
employee must be furnished copies of all relevant documents.
Article XV refers to the PRESCRIPTIVE PERIOD OF RECORD
KEEPING.
The prescriptive period is two years for penalties of three to fifteen
days suspension and three years for penalties of sixteen to thirty days
suspension. A subsequent deviation during the prescriptive period stops the
running of such prescriptive period for the preceding deviation. (This provision
appears to be unconstitutional for being violative of substantive due process
and for being unreasonable). The running of the new prescriptive period is
based on the “latest deviation”. Habituality negates the effects of
prescription.
Article XVIII refers to SUMMARY PROCEEDING IN LIEU OF FACT
FINDING.
Summary proceeding is INAPPLICABLE to cases where the
imposable penalty is LESS THAN DISMISSAL. This covers TARDINESS
cases.
For purposes of PREVENTIVE SUSPENSION (which is irrelevant in
this case), no fact-finding is needed (and it may be immediately imposed) IF:
“committed in the presence of two or more witnesses”; “deviation is serious
and evidence of guilt is strong”; employee is “convicted by final judgment” in
any court; “multiple offender”; and “notoriously undesirable or dangerous.”
ARTICLE XX refers to the TABLE OF OFFENSES AND PENALTIES.
Per Rule 15 (Tardiness, Undertime, Overtime and Breaks) of Part
VI (PUNCTUALITY AND ATTENDANCE) of Article XX of the TMCGB (Page
64) the penalties are as follows:
(a) Reporting for work late for three times corresponds to
one violation.
(b) The “reckoning is PER CALENDAR BASIS”.
(c) For the first violation (three incidents of tardiness in
one calendar year) the penalty is CORRECTIVE
COUNSELLING.
(d) For the second violation (six incidents of tardiness in one
calendar year) the penalty is WARNING.
(e) For the third violation (nine incidents of tardiness in one
calendar year) the penalty is three days suspension.
(f) For the fourth violation (twelve incidents of tardiness in
one calendar year) the penalty is six days suspension.
(g) For the fifth violation (fifteen incidents of tardiness in one
calendar year) the penalty is twelve days of suspension.
(h) For the sixth violation (eighteen incidents of tardiness in
one calendar year) the penalty is thirty days suspension.
(i) For the seventh violation (twenty one incidents of tardiness
in one calendar year) the penalty is DISMISSAL.
25. As earlier stated in Paragraph 11, supra, after a six

days suspension, the complainant was abruptly and illegal
DISMISSED on May 8, 2015.
“x x x.
FIRST VIOLATION
As shown in a Notice to Explain, dated 11 April 2014,

issued by the Human Resource Business Partner –
Gaming Department headed by respondent Xxx Xxx,
the complainant was penalized for twelve instances of
tardiness, the dates of which were stated in the said
Notice (between the period March 12, 2013 to
February 19, 2014). The Notice cited Sec. VI, Article
XX (Punctuality and Attendance 15A) of the TEAM
MEMBER CODE OF GOOD BEHAVIOR (TMCGB). To
his recollection, the penalty of Corrective Counselling
(CC) was imposed on him. He does not recall having
been issued a memorandum of WARNING. Pursuant
to the said Notice, he submitted to the office of the
respondent Xxx Xxx one original copy of his
handwritten EXPLANATION (no file copy for himself).
See Annex “D” – NOTICE TO EXPLAIN, dated 11

April 2014.
The complainant he assumes it was a CORRECTIVE

COUNSELLING penalty.
SECOND VIOLATION
In the middle of 2014 or thereabout he was issued a

memorandum of WARNING. He has no copy now the
WARNING document .
THIRD VIOLATION
In November or December 2014 or thereabout he was

SUSPENDED FOR THREE DAYS. He has no copy
now of the document showing such suspension.
FOURTH VIOLATION
In March 2014 or thereabout he was SUSPENDED

FOR SIX DAYS. He has no copy now of the document
showing such suspension.
NOTE: Some, if not many, of the TARDINESS of the

complainant were caused by the heavy traffic due
to the prolonged CONSTRUCTION and/or
IMPROVEMENT of the street where the xxx was
located (with cranes and heavy equipment on the
road) and the long papal visit of POPE FRANCIS in
early 2015.
ABRUPT DISMISSAL
On May 8, 2014 at about 2:00 PM to 4:00 PM the

complainant was ABRUPTLY AND VERBALLY
DISMISSED FROM EMPLOYMENT by the respondent
Xxx Xxx in the presence of his immediate superior xxx
xxx (xxx Shift Manager) inside the room of Xxx Xxx.
He was then on duty from 7:00 AM to 3:00 PM.
He was sequestered by Xxx Xxx inside her room.
He was threatened and forced by Xxx Xxx to

IMMEDIATELY RESIGN. Otherwise, she would
TERMINATE him (that would surely affect his future
employments in other entities, if any).
No prior notice to explain was issued to him.
No formal charge was filed against him.
No administrative hearings (due process and

opportunity to be heard) were held to discuss the
problem, resolve it amicably, and hear his side. His
constitutional right to due process of law was violated.
X x x.”
26. Article 277 of the Labor Code provides for the DUE
PROCESS OF LAW:
“x x x.
Article. 277. Miscellaneous provisions. - (a) All unions are

authorized to collect reasonable membership fees, union dues,
assessments and fines and other contributions for labor
education and research, mutual death and hospitalization
benefits, welfare fund, strike fund and credit and cooperative
undertakings. (As amended by Section 33, Republic Act No.
6715, March 21, 1989).
(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.
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.”
27. Article 279 of the Code provides for the SECURITY OF

TENURE of a worker:
“x x x.
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 his 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. (As amended by Section 34, Republic
Act No. 6715, March 21, 1989).
X x x.”
28. Article 282 of the Code speaks of the just grounds to

dismiss an employee.
“x x x.
ART. 282. Termination by employer. - 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;
(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
X x x.”
29. The complainant is guilty merely of the MINOR

OFFENSE OF TARDINESS.
He is NOT GUILY 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.
He did not deserve the supreme sanction of DISMISSAL (more so

WITHOUT DUE PROCESS OF LAW).
30. In the case of CAPIN-CADIZ VS. BRENT HOSPITAL

AND COLLEGE, GR 187417, February 24, 2016, it was held that a
worker who was illegally dismissed is entitled to “entitled to
reinstatement without loss of seniority rights, and with payment
of backwages computed from the time compensation was
withheld up to the date of actual reinstatement.”
“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.
Where reinstatement is no longer viable as an

option, separation pay should be awarded as an
alternative and as a form of financial assistance. 55
X x x.
Generally, the computation of backwages is

reckoned from the date of illegal dismissal until
actual reinstatement. 59
In case separation pay is ordered in lieu of

reinstatement or reinstatement is waived by the
employee, backwages is computed from the time of
dismissal until the finality of the decision ordering
separation pay. 60
Jurisprudence further clarified that the period for

computing the backwages during the period of
appeal should end on the date that a higher court
reversed the labor arbitration ruling of illegal
dismissal. 61
X x x.”
31. 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.
In order to validly dismiss an employee, he must be
accorded both substantive and procedural due process by

the employer. Procedural due process requires that the
employee be given a notice of the charge against him, an
ample opportunity to be heard, and a notice of
termination. Even if the aforesaid procedure is conducted
after the filing of the illegal dismissal case, the legality of
the dismissal, as to its procedural aspect, will be upheld
provided that the employer is able to show that
compliance with these requirements was not a mere
afterthought.
X x x.
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.[14] As we explained in Perez v. Philippine
Telegraph and Telephone Company:[15]
An employee’s right to be heard in termination cases under

Article 277 (b) as implemented by Section 2 (d), Rule I of the
Implementing Rules of Book VI of the Labor Code should be
interpreted in broad strokes. It is satisfied not only by a formal
face to face confrontation but by any meaningful opportunity
to controvert the charges against him and to submit
evidence in support thereof.
A hearing means that a party should be given a chance to

adduce his evidence to support his side of the case and
that the evidence should be taken into account in the
adjudication of the controversy. Xxx.
X x x.”
IV. URGENT EX PARTE MOTION FOR PRODUCTION,

INSPECTION AND EXAMINATION OF THE “201 FILE”
(PERSONNEL FILE) OF THE COMPLAINANT IN THE
POSSESSION OF THE RESPONDENTS.
32. In the interest of fair play, the complainant hereby moves for the
production, inspection and examination of his 201 File (Personnel File),
which is now being withheld by the respondents, 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 a future
hearing.
V. MISCELLANEOUS
33. UNPAID OFFICIAL TIME (15 MINUTES DAILY

BRIEFINGS BEFORE COMMENCING WORK). – A miscellaneous
cause of action that the complainant has alleged is his UNPAID
WORKING HOURS OF FIFTEEN MINUTES DAILY WHICH THE

RESPONDENTS REQUIRED ALL EMPLOYEES TO UNDERGO
BEFORE COMMENCING DAILY WORK.
He started work on January 7, 2013 and was illegally dismissed

on May 8, 2015 – or a period of two years and four months. His
working hours of fifteen minutes of daily briefings for the said
period were all unpaid.
34. For the record, the complainant will file a letter with the
Arbiter, copy furnished the adverse counsel, a Letter, dated
November 19, 2016, stating and praying for the following:
“x x x.
RE : MANIFESTATION; XXX vs. XXX

XXX, et. al.; NLRC RAD Case No. NCR-
xxx.
MABUHAY:
In re: the hearing on November 29, 2016, Tuesday,

10:00 AM, may I please manifest the following:
I am ready to file on November 29, 2016 at 10:00 AM

my POSITION PAPER, without prejudice to the
revival of the Compromise Negotiation.
I move for fifteen days to file my REPLY POSITION

PAPER, counted from November 29, 2016.
Despite the filing of the said pleadings, I respectfully

move to revive the Compromise Negotiation
between the parties because I want to avoid a
prolonged, costly and tedious litigation, considering
that I have been jobless since the time I was dismissed
by the respondent in May 2015.
During the last hearing on November 15, 2016, the

counsel for the respondent, Atty. Xxx Xxx tentatively
offered me the following Compromise:
· Three months’ separation pay;

· Release of my unpaid receivables amounting to
Fifty Thousand Pesos (P50,000.00)
· Release of my Certificate of Employment (COE).
I hereby respectfully counter offer to the respondent,

through the kind intercession of Atty. Xxx, the following
Compromise, subject to mutual negotiation:
· Six months’ separation pay (subject to further

negotiation);
· Release of my unpaid receivables amounting to
Fifty Thousand Pesos (P50,000.00)
· Release of my Certificate of Employment (COE).
If Atty. Xxx is empowered to decide on my foregoing

counter proposal during the next hearing on November
29, 2016, I move that the simplified Compromise
Agreement be written by the Labor Arbiter in the
Minutes of the Hearing on the said date.
If Atty. Xxx will need to consult the management of the

respondent on my foregoing counter proposal, I move
that the hearing on November 29, 2016 be reset to the
following week or two weeks so that Atty. Xxx
could report back to the Labor Arbiter the decision
of the management on my counter proposal.
Thank you for your kind assistance. x x x.”
VI. PRAYER
WHEREFORE, premises considered, it is respectfully prayed that

judgment be issued declaring that the complainant has been ILLEGALLY
DISMISSED by the respondents.
FURTHER, it is respectfully prayed that the respondents be ordered to pay
or issue to the complainant, as the case may be:
(a) BACKWAGES from the date of his illegal dismissal on May 8,
2016 up to the time he is REINSTATED to his former position
without loss of seniority and other benefits.
(b) MORAL DAMAGES of P500,000.00.
(c) EXEMPLARY DAMAGES of P500,000.00.
(d) His RECEIVABLES representing salaries and other benefits
due him in the amount of P61,166.99 as discussed in Paragraph
13, supra.
(e) Attorney’s fees of Ten Percent of Damages AWARDED.
(f) Unpaid 15-minute daily staff briefings for two and one-half years
(January 7, 2013 to May 8, 2015).
(g) His CERTIFICATE OF EMPLOYMENT whether or not he is
reinstated.
FINALLY, the complainants respectfully pays for such and other reliefs as
may be deemed just and equitable in the premises.
Xxx City, November 26, 2016.
MR. XXX XXX

Complainant
Address: x x x.
SUBSCRIBED AND SWORN TO BEFORE ME in xxx City on

November 28, 2016, affiant showing his competent proof of identity as follows:
LTO Driver’s License No. x x x.
Notary Public
Doc. No.
Page No.
Book No.
Series of 2016.
Copy Furnished:
Atty. Xxx Xxx

Counsel for Respondents
(To be personally given during the
hearing on November 29, 2016 at 10:000 AM)
Posted by Atty. Manuel J. Laserna Jr. at 5:12 PM
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Atty. Manuel J. Laserna JR.: Sample Position Paper in A Labor Case

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Atty. Manuel J. Laserna Jr.

: Sample Position Paper in a labor case 12/3/19, 3:16 PM

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Atty. Manuel J. Laserna Jr.

MANUEL J. LASERNA JR.- NATIONAL LABOR RELATIONS COMMISSION Sample "Comment" to

Oral defamation, slander - G.R. RIGHT OF PRIVACY

Ltigation, Appeals, Justice INQUIRER.net

He was sequestered by Xxx Xxx inside her room. ► July (40)

No formal charge was filed against him. ► January (82)

He was not allowed to go to the toilet.

He was not allowed to call up a lawyer.

He was not read the charges against him, if any.

Neither was there a notice of decision dismissing him from

Only after two hours of forcible sequestration inside the room of

12. As instructed, after three days, he returned to the office of the

The HR staff gave him the contact numbers of the staff

13. RECEIVABLE SALARIES AND OTHE REMPLOYEE

The receivable salaries and other employee benefits of the

· Salaries for three days - P9,826.03;

The total of the foregoing items was P53,357.60.

Per company policies, the company DEDUCTED the

· Phase 1A bonus - P30,889.11; and

He was told he still had to pay the company the net

(Refer to Annex “B”, supra).

14.Sometime in August 2015, the complainant called up COMPENBEN

Sometime September 2015 he called up the said office six times. He

Sometime in October 2015 he called up again the said office. This

He was supposed to be hired by the said company in Oct 2016 or

first pay the company the amount of P35,059.51 that it was

· Annex “E” - NOTICE OF CONFERENCE, dated

· Annex “H” – COMPLAINT, dated October 26, 2016.

See Annex “J” – LETTER of the complainant duly received by HR-

22. His National Bureau of Investigation (NBI) Clearance (valid

23. The family home of the complainant in x x x x was

thereabout. Due to the illegal dismissal of the complainant on May 8,

They continue to suffer financial difficulties to support their three young

Their family life and psychological well-being as a family have been

To prove the foregoing statement, see the following annexes:

· Annex “N” with submarkings – LETTER, dated

· Annex “O” with submarkings - xxx Bank records of their

The illegal acts of the respondents cause the complainant extreme

The sole issue is whether or not the complainant is entitled to

24. A copy of the relevant parts of the TMCGB (employees’

Article X of the TMCGB contains the DUE PROCESS PROCEDURE

The respondents violated the provisions or steps described

Step One refers to the Counselling Procedures:

(a) The supervisor shall personally inform the employee of the

It is assumed that the TMIP and other related documents

Step Two refers to the procedures for Written Explanation:

(a) The supervisor requires the employee to submit a written

It is presumed that the foregoing proceedings are

Step Three refers to the procedures for FACT-FINDING BY IMMEDIATE

(a) The employee files the written explanation.

and made available to all concerned (presumably,

It is presumed that the foregoing proceedings are

Step Four refers to APPEAL PROCEDURE.

It is presumed that the foregoing proceedings are

Step Five refers to the TEAM MEMBER BEHAVIOR ACTION

(a) The Department Head recommends the referral of the

It is presumed that the foregoing proceedings are

Article XI refers to the graduated scale of penalties from

xxx (respondent Xxx Xxx) to DISMISS an employee and a supervisor.

25. As earlier stated in Paragraph 11, supra, after a six