Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. 10
Cagayan De Oro City
RODRIGO D. GUINTAO, JR., NLRC CASE NO:
Complainant, RAB – 10-10-00017-2015
-versus-
RURAL TRANSIT (MINDANAO) INC.
EDGAR BACONGA, Branch
Manager,
Respondents.
x-------------------------------------------------/
POSITION PAPER OF COMPLAINANT
COMPLAINANT, through the undersigned counsel, and unto
this Honorable Labor Arbitration Office, most respectfully submits this
position paper, to wit:
PREFATORY STATEMENT
This is a complaint for illegal dismissal, non-payment of
Christmas Bonus, Vacation Leave and Signing Bonus, reinstatement
with full payment of back wages and separation pay if reinstatement
is no longer appropriate and damages.
BRIEF STATEMENT OF FACTS
Complainant is of legal age, Filipino, and a resident of Agora,
Lapasan, Cagayan de Oro City while the respondent RURAL
TRANSIT (MINDANAO), INC., (RTMI, for brevity) as represented by
its branch manager, Edgar Baconga whose Cagayan de Oro Office
(Yacapin Branch) address is at JR Borja Extension, Cagayan de Oro
City, where they both can be served with summons and other
processes by this Honorable Office.
Sometime on 2010, complainant was hired by the respondent
with the position of “Radiatorman”. He was assigned at Yacapin
Main Office Branch, J.R. Borja Extension, Cagayan de Oro City,
where respondents maintained a branch office.
On September 6, 2014, complainant was forced not to report to
work because it rained very hard the night before and their place was
heavily flooded.
Complainant reported the following day and his attention was
called to explain why he was absent on September 6, 2014.
Complaint told the management that his absence was due to the
flood that they experienced, after the heavy rain, the night of
September 05, 2014. After explaining his side, complainant was told
by the management that his absence is justifiable and advised to
work again.
On October 14, 2014, due to some urgent reasons,
complainant was not able to report for work. However, this time he
asked his co-employee, Juny Olip, to inform their supervisor or
manager of his intention not to work on that day, which the latter did.
Attached herein photocopy of the handwritten statement of Juny Olip
marked as Annexed “A”.
Sometime on October 2014, complainant received a Notice of
Decision dated October 10, 2014 of his Absent without Official Leave
(AWOL) on September 06, 2014 and a Notice of Preventive
Suspension dated October 22, 2014, for (AWOL) for one (1) day on
October 14, 2014. Attached herein are photocopies of the Notice of
Decision and Notice of Preventive Suspension marked as Annexes
“B” and “C”, respectively.
The complainant was forced to comply the Preventive
Suspension Order that carries an additional days of suspension from
(5) days of preventive suspension, which supposed to end on
October 22, 2014, but the order was extended for another (15) days
effective October 23, 2014 to November 06, 2014.
Right after serving the required days of suspension,
complainant reported to work but was never allowed to work again by
respondents.
This sudden act of the respondent in terminating the
employment of the complainant grossly violated the constitutional
right of the complainant to due process, which constitute illegal
dismissal. Complainant is now seeking help before this Honorable
Office, hence, this complaint is filed.
ISSUES
I
WHETHER OR NOT THERE EXISTS AN EMPLOYER-EMPLOYEE
RELATIONSHIP BETWEEN RESPONDENTS AND THE
COMPLAINANT.
II
WHETHER OR NOT COMPLAINANT WAS REGULAR EMPLOYEE
OF THE RESPONDENTS.
III
WHETHER OR NOT THE STANDARDS OF DUE PROCESS IN
TERMINATING THE EMPLOYMENT OF THE COMPLAINANT WAS
SUBSTANTIALLY FOLLOWED BY RESPONDENTS.
IV
WHETHER OR NOT COMPLAINANT WAS ILLEGALLY
DISMISSED.
V
WHETHER OR NOT COMPLAINANT IS ENTITLED TO
REINSTATEMENT WITH FULL BACKWAGES, OR SEPARATION
PAY, BENEFITS PLUS ALLOWANCES, 13TH MONTH PAY, AND
ALL OTHER LABOR STANDARD BENEFITS DUE TO HIM AS
MANDATED BY THE LABOR CODE.
ARGUMENTS AND DISCUSSIONS
I. THERE EXISTS EMPLOYER-
EMPLOYEE RELATIONSHIP
BETWEEN RESPONDENTS AND THE
COMPLAINANT.
In determining the existence of employer- employee
relationship, the elements that are generally considered comprises
the so-called “four fold test” namely: (a) the selection and
engagement of the employee; (b) the payment of wages; (c) the
power of dismissal; and (d) the employer’s power of control over the
employee with respect to the means and method by which to work is
to be accomplished.
Clearly, there is no doubt that the complainant was an
employee of respondents, RTMI, as the four fold tests are present.
Complainant was hired by the respondents as radiatorman. His
salary was being paid by the respondents, the respondents has the
power to dismiss, including work assignment, working methods,
process to be followed, working regulations, transfer of employees
and most of all, respondents has the control as to how the work of the
complainant should be done.
To bolster complainant’s claim as employees of the
respondents, copies of their Company Identification Cards and Pay
Slips are herein attached as Annex “D” and Annex “E”, respectively.
II. COMPLAINANT IS A REGULAR
EMPLOYEE OF THE RESPONDENTS.
Complainant, being employed as radiatorman of respondents,
is a regular employee. There is no doubt that the complainant’s work
is necessary and desirable in the nature of their transport business.
Having worked for more than (5) years to the respondents’ bus
company, complainant is of no doubt a regular employee of the
respondent.
Article 280 of the Labor Code is emphatic when it says that:
“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 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 services 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.”
III.COMPLAINANT WAS DISMISSED
WITHOUT DUE PROCESS
The proper procedure in the dismissal of employees based on
just causes is set forth in Book VI, Rule I, Section 2 (d) of the
Omnibus Rules Implementing the Labor Code which provides:
“Standards of due process: requirements of notice. – In
all cases of termination of employment, the following
standards of due process shall be substantially observed:
1. For termination of employment based on just
causes as defined in Article 282 of the Code:
(a) A written notice served on the employee
specifying the ground or grounds for termination, and giving
to said employee reasonable opportunity within which to
explain his side;
(b) A hearing or conference during which the
employee concerned, with the assistance of counsel if the
employee so desires, is given opportunity to respond to the
charge, present his evidence or rebut the evidence
presented against him; and
(c) A written notice of termination served on the
employee indicating that upon due consideration of all
circumstances, grounds have been established to justify his
termination.
In case of termination, the foregoing notices shall be
served on the employee’s last known address.”
The twin notice requirements and hearing constitute the
essential elements of due process in cases of employee dismissal.1
This rule has been long embedded in our jurisdiction. A recent case
that further exemplifies the procedure on dismissal is King of Kings
Transport, Inc., et. al. vs. Mamac,2 where the Supreme Court made
the following pronouncement:
“To clarify, the following should be considered in
terminating the services of employees:
The first written notice to be served on the employees
should contain the specific causes or grounds for
termination against them, and a directive that the
1 Marcelo et. al., vs. NLRC et. al., G.R. No. 113458 January 31, 1995
2 G.R. No. 166208, June 29, 2007
employees are within a reasonable
period. “Reasonable opportunity” under the Omnibus
Rules means every kind of assistance that
management must accord to the employees to enable
them to prepare adequately for their defense. This
should be construed as a period of at least five (5)
calendar days from receipt of the notice to give the
employees an opportunity to study the accusation
against them, consult a union official or lawyer, gather
data and evidence, and decide on the defenses they
will raise against the complaint. Moreover, in order to
enable the employees to intelligently prepare their
explanation and defenses, the notice should contain a
detailed narration of the facts and circumstances that
will serve as basis for the charge against the
employees. A general description of the charge will not
suffice. Lastly, the notice should specifically mention
which company rules, if any, are violated and/or which
among the grounds under Art. 282 is being charged
against the employees.
After serving the first notice, the employers should
schedule and conduct a hearing or conference
wherein the employees will be given the opportunity to:
(1) explain and clarify their defenses to the charge
against them; (2) present evidence in support of their
defenses; and (3) rebut the evidence presented against
them by the management. During the hearing or
conference, the employees are given the chance to
defend themselves personally, with the assistance of a
representative or counsel of their choice. Moreover, this
conference or hearing could be used by the parties as
an opportunity to come to an amicable settlement.
(3) After determining that termination of employment is
justified, the employers shall serve the employees a
written notice of termination indicating that: (1) all
circumstances involving the charge against the
employees have been considered; and (2) grounds
have been established to justify the severance of their
employment.” (emphasis supplied)
Guided with the foregoing principles, it is crystal clear that in the
instant case complainant was not afforded due process on the ground
that the alleged notices were wanting in substance to sufficiently
notify him of the intent to terminate him and the bases relied upon.
IV. COMPLAINANT WAS ILLEGALLY DISMISSED
The act of the respondents on dismissing the complainant
verbally without any justifiable reasons already constitutes illegal
dismissal. Respondents terminated the employment of the
complainant by just a mere verbal means. It did not follow the sacred
two-notice rule as mandated by the Labor Code. It failed to afford the
complainant to explain why he should not be dismissed if indeed the
respondent has legal and just grounds to dismiss him. Respondents
also failed to inform the complainant of its decision to dismiss him.
Respondents grossly violated the constitutional right of the
complainant to due process; hence, he was illegally dismissed.
Article 279 of the Labor Code states:
“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.
xxxx”
Unfortunately, none of these just causes or authorized causes
are present in this instant case as enunciated by the Labor Code.
Respondent failed to show that the termination of the employment of
the complainant is due to just cause or authorized cause.
V. COMPLAINANT IS ENTITLED
TO REINSTATEMENT WITH
MONETARY AWARDS
Having been illegally dismissed, complainant is entitled to all
reliefs due to him in accordance to the Labor Code and other relevant
laws.
Article 279 of the Labor Code states that:
“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 of
their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual
reinstatement.(As amended by Sec. 34, RA 6715).”
Complainant is also entitled to moral damages for being illegally
dismissed. Moral damages are recoverable when, for example, the
dismissal was effected without an authorized cause and/or due
process- for which relief granted by the Labor Code- and also when
the dismissal (1) was attended by bad faith or fraud; (2) constituted
an act oppressive to labor; or (3) was done in a manner contrary to
morals, good customs or public policy. Complainant is entitled to
salary deferential for being underpaid.
PRAYER
WHEREFORE it is respectfully prayed unto this Honorable
Labor Arbitration Office that judgment be rendered as follows:
1. Declaring the complainant a regular employee of
the respondent entitled to a security of tenure;
2. Declaring the complainant to have been illegally
dismissed;
3. Awarding to the complainant reinstatement with full
backwages, benefits and other allowances, or
separation pay in lieu of reinstatement;
4. Awarding to the complainant, monetary claims, 13th
month pay, and all other labor standard benefits due
him as enunciated by the Labor Code and other
related laws;
5. Awarding to the complainant, moral and nominal
damages for the illegal dismissal done to him by the
respondent.
6. Awarding Attorney’s fees in the amount of
(Php30,000.00) Thirty Thousand Pesos.
Other reliefs just and equitable in premises are likewise prayed
for.
_____March, 2015, Cagayan de Oro City, Philippines.
XXXXXXX & ASSOCIATES
Counsel for Complainant
nd
2 Floor Guevarra Building,
142 Tiano Bros. Cor M.H. Del Pilar Streets
Cagayan de Oro City
Tel No. (088)852-4006
By:
ATTY. XXXXXXXXXXXXXXXXXXXX
Commission Expiration Dec. 31, 2016
PTR No. 2702155, 12-4-14 CDOC
IBP No. 945530, 12-3-14 Mis. Or.
Attorney’ Roll No. 53066
TIN 902-669-255
MCLE Comp. No. IV-0022048, 9-26-14
Copy Furnished:
Rural Transit of Mindanao, Inc.
Yacapin Extension, Cagayan de Oro City
