Republic of the Philippines
Department of Labor and Employment
National Labor Relations Commission
Baguio City
Office of Labor Arbiter
Mars Vallejo
Complainant,
-versus-
MEGALYDON, INC.
Respondents
REPLY POSITION PAPER
Come now, the respondents, through counsel, and to this Honorable
Office, as Reply to the complainant’s Position Paper, most respectfully
state:
I.
A complainant’s claims regardless of its truthfulness in labor
disputes are not always resolved in favor of the worker. The employer
also deserves respect and protection:
“While the Constitution is committed to the policy of social
justice and the protection of the working class, it should not be
supposed that every labor dispute will be automatically decided in
favor of labor. Management also has its own rights which, as such,
are entitled to respect and enforcement in the interest of simple fair
play. Out of its concern for those with less privileges in life, this Court
has inclined more often than not toward the worker and upheld his
cause in his conflicts with the employer. Such favoritism, however,
has not blinded us to the rule that justice is in every case for the
deserving, to be dispensed in the light of the established facts and the
applicable law and doctrine.´(Enriquez v. Bank of Philippine Islands
544 SCRA593, 2008)”
II.
We agree that Mars Vallejo is indeed an employee of Megalydon
Company. His employment passed the following elements mentioned in
the following jurisprudence:
The Supreme Court has laid down in a formidable line of
decisions the elements to be generally considered in determining
the existence of an employer-employee relationship, as follows: a)
selection and engagement of the employee; b) the payment
of wages; c) the power of dismissal; and d) the employers
power to control the employee with respect to the means
and method by-which the work is to be accomplished. The last
which is the so-called control test is the most important
element (Brotherhood Labor Unity Movement of the Phils.
vs. Zamora, 147 SCRA 49 [1987]; Dy Ke Beng vs. International
Labor and Marine Union of the Phil., 90 SCRA 162 [1979];
Mafinco Trading Corp. vs. Ople, 70 SCRA 141 [1976];
Social Security System vs. Court of Appeals, 37 SCRA 579
[1971]).
The Labor Code surther provides:
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
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 isnot 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 respectto the activity in
which he is employed and his employment shall continue while
such activity exists.
III.
The nature of the dismissal, which was discussed on Mars
Vallejo’s position paper, is not illegal per se. The dismissal is due to just
cause and as stated in D.O. No. 147-15 which amended the Rules and
Regulations Book IV of the Labor Code, insubordination is one of the
grounds for dismissal under just cause. Mars Vallejo, in his position
paper is mistaken when he insinuated that his insubordination is a one-
time offense. Mars Vallejo’s insubordination is supported by the series
of events where he refused to follow orders from the management of the
Megalydon Inc.
Insubordination, as stated in D.O. No. 147-15, refers to refusal to
obey some order, which a superior is entitled to give and have obeyed. It
is a willful or intentional disregard of the lawful and reasonable
instructions of the employer.
Bascon v. Court of Appeals outlines the elements of gross
insubordination as follows:
As regards the appellate courts finding that
petitioners were justly terminated for gross
insubordination or wilful disobedience, Article 282 of the
Labor Code provides in part:
An employer may terminate an employment for any
of the following causes:
(a) Serious misconduct or wilful disobedience by
the employee of the lawful orders of his employer
or representative in connection with his work.
However, wilful disobedience of the employers lawful
orders, as a just cause for dismissal of an employee, envisages
the concurrence of at least two requisites: (1) the employees
assailed conduct must have been wilful, that is,
characterized by a wrongful and perverse attitude; and
(2) the order violated must have been reasonable, lawful,
made known to the employee and must pertain to the duties
which he had been engaged to discharge.
The employer is given also the right to exercise its power and
prerogatives according to its discretion and best judgment which
includes the power to regulate and control all aspects of the employment
relationship such as hiring, determination of work assignments, working
methods, time, place and manner of work, tools/office equipment to be
used, processes to be followed, supervision of work, working
regulations, transfer of employees, promotion, demotion, discipline,
dismissal, lay-of and/or recall of employees.
In Areno, Jr., vs Skycable PCC-Baguio, G.R. No. 180302,
Febrauary 5, 2010 the Supreme Court held that appropriate disciplinary
sanction is within the purview of management imposition. What should
not be overlooked is the prerogative of an employer company to
prescribe reasonable rules and regulations necessary for the proper
conduct of its business and to provide certain disciplinary measures in
order to implement said rules to assure that the same would be complied
with. Respondent then acted within its rights as an employer when it
decided to exercise its management prerogative to impose disciplinary
measure on its erring employee.
Article 282 of the Code speaks of the just grounds to dismiss an
employee:
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
In the case at bar, Mars did not follow orders from his
management officers not only once but thrice which shows his ultimate
willful disobedience to a reasonable and lawful orders of his employees.
A willful or intentional disobedience of such rule, order or
instruction justifies dismissal only where such rule, order or
instruction is (1) reasonable and lawful, (2) sufficiently known to the
employee, and (3) connected with the duties which the employee has
been engaged to discharge. This allegation of willful disobedience can
still be adduced and proven from the same Letter-Explanation
cited.(Nissan Motors Phils.,INC. vs Angelo, G.R. No.164181,
September 14,2011
The first instance was on ________ when Mars was asked to
submit layout projects due on ______ and he did not submit them. He
was informed when he was given the project of the deadline of the
project but when the due came; he failed to submit the projects. He
explained in his letter when inquired by the HR that he did not want to
submit the projects because he was not satisfied with the outcome of his
work and that he is also aware of the deadline but still did not submit it.
See Annex A.
The second instance was on ________ where he was tasked a
project with ABC Corporation and he used the Megalydon Company’s
software instead of the software of ABC Corporation as requested.
When the management asked him to submit an Incident Report
regarding the matter, he submitted an original handwritten letter. He
explained in his letter that he did not know how to use the software of
the ABC Corporation so he used the Company’s software because he is
more comfortable with it. See Annex B.
The third instance is the project with Toinuelle. The Megalydon
indeed released the said memo stated in Mars’s position paper, however
the CEO Jack Sparrow approached Mars on September 12, 2017 and
personally handed him a new memo. It was stated in the new memo that
the software of Toinuelle is already fully functioning and that it is
needed to be used because Toinuelle specifically asked for it to be used.
Mr. Sparrow expounded the memo to Mars and he acknowledged it. See
Annex C.
From the mentioned instances, Mars’s willful disobedience is a
just cause for termination. In support, the Supreme Court ruled in Realda
vs. New Graphic Inc. that failure to observe prescribed standards of
work, or to fulfill reasonable work assignments due to inefficiency may
constitute just cause for dismissal. Such inefficiency is understood to
mean failure to attain work goals or work quotas, either by failing to
complete the same within the alloted reasonable period, or by producing
unsatisfactory results.
Having met the just cause for termination, which is the continuous
refusal of Mars Vallejo to follow the lawful orders of his superiors, the
Megalydon Company also observed due process in the dismissal of Mars
Vallejo. Mars refusal to follow the orders and instructions of his Design
Manager to use the software and hardware provided by the foreign
account customer shows a clear act of insubordination because
employees are bound to follow reasonable and lawful orders of the
employer which are in connection with their work. Failure to do so may
be a ground for dismissal or other disciplinary actions. Under Article
282 of the Labor Code of the Philippines, willful disobedience to lawful
orders by the employee is one of the just causes for termination of
employment by employer.
xxx
In Merin v. National Labor Relations Commission, this Court
expounded on the principle of totality of infractions as follows:
The totality of infractions or the number of violations committed during
the period of employment shall be considered in determining the penalty
to be imposed upon an erring employee. The offenses committed by
petitioner should not be taken singly and separately. Fitness for
continued employment cannot be compartmentalized into tight little
cubicles of aspects of character, conduct and ability separate and
independent of each other. While it may be true that petitioner was
penalized for his previous infractions, this does not and should not mean
that his employment record would be wiped clean of his infractions.
After all, the record of an employee is a relevant consideration in
determining the penalty that should be meted out since an employee's
past misconduct and present behavior must be taken together in
determining the proper imposable penalty[.] Despite the sanctions
imposed upon petitioner, he continued to commit misconduct and
exhibit undesirable behavior on board. Indeed, the employer cannot be
compelled to retain a misbehaving employee, or one who is guilty of
acts inimical to its interests.
III.
The Megalydon Company having determined the just cause to
terminate the complainant, the respondents observed the rules in
terminating Mars.
In King of Kings Transport, Inc. v. Mamac, the Supreme
Court laid down the manner by which the procedural due
requirements of due process can be satisfied:
To clarify, the following should be considered in terminating
the services of employees:
(1) 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 employees
are given the opportunity to submit their written explanation
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.
(2) 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.
Later, Perez, et al. v. Phil. Telegraph and Telephone Co. et
al., clarified that an actual or formal hearing is not an absolute
requirement. The Court en banc held:
Article 277(b) of the Labor Code provides that, in cases of termination
for a just cause, an employee must be given "ample opportunity to be
heard and to defend himself." Thus, the opportunity to be heard afforded
by law to the employee is qualified by the word "ample" which
ordinarily means "considerably more than adequate or sufficient." In this
regard, the phrase "ample opportunity to be heard" can be reasonably
interpreted as extensive enough to cover actual hearing or conference.
To this extent, Section 2(d), Rule I of the Implementing Rules of Book
VI of the Labor Code is in conformity with Article 277(b).
Contrary to what Mars averred in his position paper, the
Megalydon Company complied faithfully with the process in terminating
their employee.
Megalydon Company issued the first notice on _______ when
they learned that Mars was using the company’s software instead of the
Toinuelle’s. Mars was given six days to submit his incident report or
explanation. Mars, on the other hand, submitted his original handwritten
letter two days late. See Annex D.
After receiving the letter of explanation of Mars, the company
scheduled a hearing for Mars to be able to defend his side. The hearing
was scheduled on September _______ however, Mars failed to appear.
He was not present at the date of the hearing thus the company had to
move the hearing on the following week. On the second meeting Mars
was present and the company and Mars did not agree for an amicable
settlement.
After the said hearing, the company’s management staff had a
careful deliberation. They weighed the historical willful disobedience of
Mars, his present action and his defense. Mr. Sparrow then issued a
notice of termination to Mars.
Jay banda t prayer –dik amu nu new numerical.. dik amu format na
IV
As discussed hereinabove, Mars’s termination was for a just cause
and the due process of his termination as an employee was meticulously
followed.
The Supreme court furthered ruled in Reno Foods, Inc. v.
Nagkakaisang Lakas ng Manggagawa (NLM))-Katipunan which
explains the propriety of granting separation pay in termination cases in
this wise:
The law is clear. Separation pay is only warranted when the cause
for termination is not attributable to the employees fault, such as those
provided in Articles 283 and 284 of the Labor Code, as well as in cases
of illegal dismissal in which reinstatement is no longer feasible. It is not
allowed when an employee is dismissed for just cause, such as serious
misconduct.
xxxx
It is true that there have been instances when the
Court awarded financial assistance to employees who were
terminated for just causes, on grounds of equity and social
justice. The same, however, has been curbed and
rationalized in Philippine Long Distance Telephone
Company v. National Labor Relations Commission. In that
case, we recognized the harsh realities faced by employees
that forced them, despite their good intentions, to violate
company policies, for which the employer can rightly
terminate their employment. For these instances, the award
of financial assistance was allowed. But, in clear and
unmistakable language, we also held that the award of
financial assistance shall not be given to validly terminated
employees, whose offenses are iniquitous or reflective of
some depravity in their moral character. When the
employee commits an act of dishonesty, depravity, or
iniquity, the grant of financial assistance is misplaced
compassion. It is tantamount not only to condoning a
patently illegal or dishonest act, but an endorsement
thereof. It will be an insult to all the laborers who despite
their economic difficulties, strive to maintain good values
and moral conduct.
In the recent case of Toyota Motors Philippines,
Corp. Workers Association (TMPCWA) v. National Labor
Relations Commission, the Supreme Court ruled that
separation pay shall not be granted to all employees who
are dismissed on any of the four grounds provided in
Article 282 of the Labor Code. Such ruling was reiterated
and further explained in Central Philippines Bandag
Retreaders, Inc. v. Diasnes:
To reiterate our ruling in Toyota, labor
adjudicatory officials and the CA must demur the
award of separation pay based on social justice
when an employees dismissal is based on serious
misconduct or wilful disobedience; gross and
habitual neglect of duty; fraud or wilful breach of
trust; or commission of a crime against the person
of the employer or his immediate family─grounds
under Art. 282 of the Labor Code that sanction
dismissals of employees. They must be most
judicious and circumspect in awarding separation
pay or financial assistance as the constitutional
policy to provide full protection to labor is not
meant to be an instrument to oppress the
employers. The commitment of the Court to the
cause of labor should not embarrass us from
sustaining the employers when they are right, as
assistance to the undeserving and those who are
unworthy of the liberality of the law.
The Supreme Court also ruled in TRI-C
GENERAL SERVICES
vs. NOLASCO B. MATUTO et al, the
respondents were not illegally dismissed from
employment and their wages were not
withheld without valid and legal basis.
Therefore, they are not entitled to receive
attorney’s fees.
Mars has been terminated properly for a just cause, therefore, his
claim for backwages, or separation pay, moral and exemplary and the
award of the ten percent of the attorney’s fee, is thus, bereft of any
factual and legal basis.
WHEREFORE, it is most respectfully prayed, that the complaint for
illegal dismissal and money claims, be DENIED, and that respondents
counterclaims for damages and attorney’s fees, be GRANTED.
Respondent prays for other reliefs to which they may be entitled in law,
and in equity.
