REPUBLIC OF THE PHILIPPINES

NATIONAL LABOR RELATIONS COMMISSION

REGIONAL ARBITRATION IV
Halang, Calamba City

MA. KAREN D.
OAFERICUA
Complainant,

-versus- NLRC RAB IV CASE NO.12-02197-19-C

For: Illegal Dismissal/Money Claims and Damages
Hon. Labor Arbiter Melchisedek A. Guan
MARIZ VENTURES
CORP. (LYNDERM
FACIAL CENTER &
DAY SPA ET. AL.,
Respondent.

x-----------------------------------------------------------------------------------------x

REPLY

Respondents, represented by herein individual respondent

Human Resources Manager1, respectfully avers:

1. That respondents reiterate and restate their averments in the

hereto attached Position Paper that:

PREFATORY

Security of tenure is a constitutionally guaranteed right.

Employees may not be terminated from their regular
employment except for just or authorized causes under the
Labor Code and other pertinent laws. To protect the labor
from the employer’s oppressions, our Labor laws as well as
the present Constitution provide rigid parameter to cause a
valid and legitimate dismissal and severance of employment
contract. Nonetheless, the foregoing parameter, i.e. legal
grounds for dismissal and two notice rule to suffice due
process, will only be applied if there is an actual dismissal

1
Mid-Pasig Land Dev’t Corporation vs. Tablante, GR No. 162924, February 4, 2010 “In
sum we held that the following officials or employees of the company can sign the
verification and certification without need of a Board Resolution: (1) the Chairperson of
the Board of Directors, (2) the President of a Corporation, (3) the General Manager or
the Acting General Manager, (4) Personnel Officer, (5) an Employment Specialist in
labor case.
per se, and cannot indiscriminately invoked to perpetrate
employee’s malicious scheme in bribing their employers.

Worse, the foregoing rule should not supposedly be used and

exploit by an arrogant employee2 to hold hostage an innocent
employer from its baseless Complaint, by painting before the
Honorable Office that she was illegally dismissed, when in
truth and in fact, she’s the one who abandoned her work,
which consequently causes hefty stress to her innocent
employer3.

Simply put, this present case is baseless, unwarranted so to

speak as there is no dismissal happened at the first place,
it’s all a by-product of complainant calculated moves to
showcase her extreme arrogance to intentionally damage the
well established reputation of respondent.

Given the above fact that there was no dismissal to speak of,
there can be no question also as to the legality or illegality
thereof. HENCE IT DESERVES AN OUTRIGHT DISMISSAL.

THE PARTIES

1. Respondent, Mariz Ventures Corporation (Lynderm

Facial Center & Day Spa) is a corporation existing under
the laws of the Philippines. Ms. Mary Ann Casico, on the
other hand, being impleaded herein in her capacity as a
Human Resources Manager thereof. Their mailing address is
at 1949 St. Building, Dita, Sta. Rosa, Laguna.

2. Complainant, Karen Oafericua is a former employee

of respondent who intentionally abandoned her work.

STATEMENT OF THE CASE

3. This is the case of Illegal Dismissal, Illegal

Suspension,Money Claims for Service Incentives Leave Pay,
Thirteenth (13th) Month Pay, Separation Pay with prayer for
Moral and Exemplary Damages and Attorney’s Fee.

4. This case was set for mediation and mandatory

conferences but parties failed to come up with reasonable
Compromised Agreement, hence, they were directed to file
their respective Position Paper.

STATEMENT OF THE RELEVANT FACTS

5. Complainant (“Karen”) was hired on 09 August 2019

as Branch Supervisor of Lynderm Facial Center and Day Spa
located at SM Dasmarinas. At the beginning of her
2
Referring to Karen D. Oafericua.
3
Referring to Mariz Venture Inc./Lynderm.
 employment she was furnished of the contract 4 and she was
apprised of the reasonable standards to which she would be
gauged for regularization. During her evaluation 5 on 9
February 2019 for regularization she flunked after she
received a dismal and failing grade of 73.13%. However,
since the respondent company believed in second chance,
complainant was given another chance to prove herself with
the latter’s commitment that she would improve her
performance. Complainant submitted a commitment letter 6
in response thereto.

6. On 8 April 2019, she was again evaluated 7 and she

garnered a score of 65.23% which is lower than her previous
score. However, due to the increased sales, the company
decided to regularize her.

7. In July of the same year, complainant was again

evaluated and received a failing grade of 71.84%8.

8. The company conducted evaluation and assessment

on all employees’ absences, tardiness and lates. Respondent
found out that complainant incurred three (3) absences,
three (3) half-days and forty-four (44) lates 9 which she
admitted.

9. The owner also visited all the branches including the

SM Dasmarinas Branch. It was found out that the said
branch was disorganized and there was no water supply.
With the discovery of her absences, tardiness and lates
coupled with the result of the visit by the owner and other
visitors, Karen’s attention was called and she was instructed
to report at the main office on 2 August 2019.

10. A Notice to Explain10 was issued to Karen as regards

her habitual absenteeism and lates from January to
February 2019. She admitted in her reply 11 thereto that
indeed she committed the said shortcomings. Per regulation
of the company, habitual absenteeism is a ground for
termination, however, since the company was forgiving, she
was only given a suspension 12 of seven (7) days from August
26, 2019 to September 1, 2019 due to six (6) lates for the
month of January 2019 and she was again suspended 13 for
fourteen (14) days from September 3, 2019 to September 16,
2019 for being late eight (8) times for the month of February
2019. Other staffs were also suspended after they were duly

4
Annex “1” in the Position Paper and Annex “1” herein
5
Annex “2” in the Position Paper and Annex “2” herein
6
Annex “3” in the Position Paper and Annex “3” herein
7
Annex “4” in the Position Paper and Annex “4” herein
8
Annex “5” in the Position Paper and Annex “5” herein
9
Annex “6”. (Complainant’s Time In and Out.) in the Position Paper and Annex “6” herein
10
Annex “7” in the Position Paper and Annex “7” herein
11
Annex “8” in the Position Paper and Annex “8” herein
12
Annex “9” in the Position Paper and Annex “9” herein
13
Annex “10” in the Position Paper and Annex “10” herein
 proven to have committed the same violations. She duly
received both suspension orders and served the same.

11. While serving her suspension, the company deemed it

proper to investigate on the cause of the substantial decline
of the sales14 and other matters. Herein respondent Ms.
Casico had an engagement with all the staff of the
Dasmarinas Branch. The staff revealed, through the hereto
appended verified statements15, the following:

a. That complainant, in many occasions, reported for

work late.
b. That complainant sometimes came to office at 1 PM or
6 PM when the call time is 10:00 AM.
c. That those habitual tardiness did not reflect in her
DTR.
d. That complainant did not huddle with her
subordinates but only once.
e. That she overlapped her shopping activities while on
official duty.
f. That complainant’s boyfriend16 frequently visits the
branch and stayed there for a long time.
g. That complainant’s boyfriend while staying inside the
branch was in many times “nagpaparinig” towards
employees of the spa.
h. Complainant, in many occasions, uttered foul words
towards her subordinates.
i. Complainant was seen roaming within the mall in the
disguise of performing an official functions outside.
j. Complainant arbitrarily did not approve vacation leave
of some employees for unknown and unfounded reason.

12. Upon further questioning, staffs revealed that

complainant has a strained relationship with them since
they were questioning the absences and other actuations of
the latter against the company rules.

13. Since the position she handled was very important,

respondents merely stomached complainant’s undesirable
attitudes, despite the same is a clear violation of its internal
policy on how employee should and supposedly conduct
their selves in dealing and performing their assigned tasked.

14. The company realized that it is in the best interest that

complainant, after her suspension was served, mend her
relationship with her staffs. That is why the company
decided to engage both parties and patch their differences
since their animosity at each other affects the branch’s
operation.

15. On 16 September 2019, the last day of her

suspension, complainant was instructed to come to the
14
Annex “11” in the Position Paper and Annex “11” herein
15
Annex “12” to Annex “12E” in the Position Paper and Annex “12 to Annex 12E” herein
16
Complainant is open to all the staffs that she is separated from her husband.
 branch for the aforementioned engagement with the staffs
and the management so that when she comes back on the
following day the operation would be smooth and the
strained relationship among employees will be repaired.
However, said engagement did not materialize since
complainant stubbornly and wittingly refused to participate.
Without any intention to terminate her employment,
respondents on the next working day, waited complainant to
appear before its office to at least, once and for all, settled
her issues with the staff. Complainant appeared at 5PM on
17 September 2019 which she knew for a fact that bulk of
clients come from 5PM and beyond and the sales would
suffer and perhaps the company would lose its clients.

16. Likewise, as expected, glitches in complainant’s

character had started to occur.

17. Complainant’s arrogance and unprofessionalism is not

difficult to see in this case, in many times she was issued
several notices to explain. Her answer to those NTE were
written in a one-fourth sheet of paper 17 and the contents
thereof indicate arrogance, egoism, superiority and her lack
of management skills in handling her duties and
responsibilities.

18. Karen also made an incredible, malicious and baseless

allegation18 that the company is protecting unworthy staffs
because two of them are thieves and she has proofs of her
allegation.

19. To address the above discussed nervy defiance of the

company´s rules and regulation, back to work order was
given to complainant via registered mail addressed to her
given address in the 201 file. Nonetheless, she merely
ignored the same since the letter19 was stamped
UNCLAIMED.

20. The company also reached out to her via messenger

and group chat20, However, in her vain attempt not to be
bound by it, she refused to take necessary action to follow
the said instruction. Respondents even waited for her to get
well when she texted the individual respondent that she was
not feeling well but to no avail.

21. In greatest sign of arrogance and disrespect,

complainant allowed her equally arrogant boyfriend to send
messages in the official group chat of Lynderm Dasmarinas
Branch.

17
Annex 13 in the Position Paper and Annex “13” herein
18
Annex “14” in the Position Paper and Annex “14” herein
19
The letter is marked as Annex “15” while the envelope with UNCLAIMED annotation is attached as
Annex “16” in the Position Paper and Annex “15 and 16” herein respectively
20
Annex “17” in the Position Paper and Annex “17” herein
22. Respondent merely moves its neck from left to right
and scratches its head as it become speechless on how far
complainant took his arrogance against the company, who
feed her mount and her family.

23. It is unfortunate that in order to save her neck from

the ill effects of her clear and apparent arrogance,
complainant filed this present unfounded Complaint.

ISSUES

I. WHETHER OR NOT, COMPLAINANT IS ILLEGALY

DISMISSED OR SHE HERESELF ABANDONED HER
WORK.

II. WHETHER OR NOT THAT THE UTTERANCE MADE

BY THE COMPLAINANT IS TANTAMOUNT TO
RESIGNATION.

III. WHETHER OR NOT COMPLAINANT IS ENTITED

WITH SEPARATION PAY, SERVICE INCENTIVES LEAVE
PAY AND DAMAGES.

ARGUMENTS/DISCUSSION

Complainant was not illegally dismissed, she

intentionally abandoned her work, breeching her
employment contract.

24. Respondent wishes to point it out in the onset that it

never dismissed complainant from her work. So whatever
allegations she presented in the present Complaint is a mere
orchestrated lie, a manufactured speculations that does not
worth one’s salt.

In short, it’s just a mere tale tell, a speculation at its best, a

lie at its finest.

25. Complainant in averred in her complaint that she was

dismissed in August. However, documents show that she
was still in the company from August 1 to 26, 2019 as
she was only suspended first from August 26, 2019 to
September 1, 2019 and another suspension from
September 3, 2019 to September 16, 2019.

26. As emphasized, complainant was not dismissed, she

was suspended for the violating company rules and
regulations.

27. As succinctly discussed above, respondent still waited

for the complainant to report for work on the next working
day (September 17, 2019) and thereafter. The company made
 ways to have her back in the fold, but it was the complainant
who stubbornly refused to resume her work.

28. But for the record, respondent is very willing to retain

her as its agent, but it was the complainant who
intentionally abandoned her work, by swiftly leaving
respondent.

29. In Basay et.al v. Hacienda Consolacion 21, the Supreme

Court states:

“Fair evidentiary rule dictates that before employers are

burdened to prove that they did not commit illegal dismissal,
it is incumbent upon the employee to first establish the
fact of his or her dismissal”

In the same case, the Supreme Court also ruled that:

The one who alleges a fact has the burden of proving it and
the proof should be clear, positive and convincing. In this
case, aside from mere allegations, no evidence was proffered
by the petitioners that they were dismissed from
employment. The records are bereft of any indication that
petitioners were prevented from returning to work or
otherwise deprived of any work assignment by
respondents22.

Based on the foregoing fair rule, following queries herein

should be asked.

(i) Was there any evidence so to speak to prove that

complainant was dismissed from work?

(ii) If there was, can complainant present the said

evidence?

(iii) Was there a termination letter or its equivalent to

prove that complainant was truly terminated from her post
as agent of respondent?

(iv) Was there any records that complainant was

prevented to return from work?

(v) Was there any records to show that complainant was

deprive of work assignment?

Surely, the answer of the above queries is NO! With

resounding no as there was no dismissal happed at the first
place. Hence, the Honorable Office should slay this present
Complaint for being no basis under the attendant
circumstances and applicable laws at hand.

21
G.R. No 175532 April 19, 2010
22
Ibid
 30. Actually, what is involve in this case is the so called
“abandonment of work”, which can be decisively inferred
from complainant’s subsequent overt act right after the
suspension happened. Although settled is the rule that the
filling of Complaint is inconsistent with abandonment.
However, the said general rule finds no applications in the
present case as it required immediate filling of Complaint
based on the ruling of Supreme Court in Philtranco Service
Enterprises, Inc. v. National Labor Relations Commission 23,
which states

"Time and again, we have held that the immediate filing of

a complaint for illegal dismissal by an employee, as in
this case, is inconsistent with abandonment."

In this case, it must be pointed out that complainant file the

present Complaint more than a (1) month from the moment
she arrogantly left his post as supervisor of respondent.

In short, it was the complainant who breached her

employment contract.

31. To be considered as “abandonment of work” the

Supreme Court clearly ruled in Investigation Security
Agency, Inc. v. Daquena24, which was also mentioned in the
latest case of Protective Maximum Security v. Fuentes25 held
that:

“. . . "for abandonment of work to exist, it is essential (1) that

the employee must have failed to report for work or must
have been absent without valid or justifiable reason; and (2)
that there must have been a clear intention to sever the
employer-employee relationship manifested by some overt
acts. . . . Absence must be accompanied by overt acts
unerringly pointing to the fact that the employee simply does
not want to work anymore.”

In Premier Development Bank v. NLRC et.al.26the Supreme

Court enunciates:

“To constitute abandonment, two elements must concur: (1)

the failure to report for work or absence without valid or
justifiable reason, and (2) a clear intention to sever the
employer-employee relationship, with the second element as
the more determinative factor and being manifested by some
overt acts. 23 Abandoning one's job means the deliberate,
23
351 Phil. 827, 835 (1998)
24
G.R. No. 147473 March 30, 2004
25
G.R. No. 169303 February 11, 2015
26
G.R. No. 114695 July 23, 1998
 unjustified refusal of the employee to resume his
employment”

Applying the foregoing rule, it bears stressing that

complainant deliberately absent herself, predicated merely
by its baseless assumption that she was fired, despite the
fact that she is expected to return from work after she was
suspended.

As to her clear intention to severe employee-employer

relationship, which could be tantamount to abandonment,
she made a statement before the labor arbiter that she does
not want to resume her post, which is an apparent portrayal
of his intention to severe the standing employment contract.

If complainant did not abandoned her work with

respondent, she is considered resigned based on the
last utterance she made. Hence, she is not entitled for
any monetary claim she sought to collect in the present
case.

32. As ruled by the Supreme Court in Mendoza v. HMS

Credit27, which states that resignation is:

“a formal pronouncement or relinquishment of a position or

office — is the voluntary act of an employee who is in a
situation where he believes that personal reasons cannot be
sacrificed in favor of the exigency of the service, and he has
then no other choice but to disassociate himself from
employment. The intent to relinquish must concur with the
overt act of relinquishment; hence, the acts of the employee
before and after the alleged resignation must be considered
in determining whether he in fact intended to terminate his
employment.

It bears stressing that she already made a statement during

the mandatory conference that clearly entails intention to
relinquish her employment contract with respondent i.e.
“ayokong makipagcompromise”

Normally, the above statement is being uttered by an

employee right after he/she resigned from work to signify
closure and severance of employee-employer relationship.
Hence, there is no doubt that complainant, at any rate, have
a strong intention to resigned from her work due to the fact
that she could no longer accommodate all her hectic
schedule of long list of personal event to attend with,
wherein to disassociate herself from respondent is her only
recourse, in order not to compromise such personal
engagement.

27
G.R. No. 187232               April 17, 2013
 Hence, the above discussed last utterance made by the
complainant is considered as a significant indication that
she is resigning from work. As a consequences of the said
resignation, complainant also relinquish whatever benefits
she is entitled under the premises of law. The foregoing is
based on the general rule enunciated by the Supreme Court
in Mendoza v. HMS Credit28, which states:

“generally, an employee who voluntarily resigns from

employment is not entitled to separation pay, an
arrangement whereby the employee would receive separation
pay despite having resigned voluntarily constitutes a
contract which is freely entered into and which must be
performed in good faith”

Since there is no standing agreement or whatsoever that

effectuate the claim of separation fee upon resignation.
Thus, complainant is not entitled the same.

By failure of Complainant to return from work, or to

insist in returning to work, deprived respondents to
effectuate due process prescribe by laws.

25. Considering that complainant deliberately abandoned

her work, and failure to report on the next working day,
there was no opportunity for the respondent to comply with
two notice rule or to conduct hearing on that regards to
suffice the procedural due process requirements as
mandated by law. But at any rate, it is worth telling that
respondents, is not required by law to comply the requisites
for due process in terminating complainant as at first, she
was never terminated from her employment.

Individual Respondent Mary T. Casibo is not liable

26. From the foregoing, it is undisputable that Ms. Casibo

did not act arbitrarily nor committed bad faith against herein
complainant. The truth is, it was the complainant who
showed arrogance towards the individual respondent. Ms.
Casibo did not assent to any unlawful acts of the company if
any and did not act in bad faith or negligence in directing
the affairs of the company.

27. For the records, respondents exerted utmost effort to

correct complainant’s ill attitude, by informing her of all
infractions she committed during her stint as employee of
respondent. Nonetheless, she ignored all of it, as if she never
commited the same.

28. 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
28
G.R. No. 187232 April 17, 2013
 OPPRESS EMPLOYERS. The commitment of this Court
to the cause of the 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 the light of
established facts, the applicable law and existing
jurisprudence.29”

Hence, the charge of illegal dismissal must fall for lack of

factual basis.

2. That by way of reply respondents aver that it has no history of

termination even of a single employee in any of its branches. Why?
Because beauty specialists or attendants need to undergo 45 days of
rigid trainings in our main office including supervisors such as
complainant. As such, it is only suspension that the company can
impose as the supreme penalty against its erring employees.

3. Terminating herein complainant is unproductive to the company

since it would train another employee for the same period of 45 days.

4. Complainant Karen, herself, tacitly admitted that she is still

connected with respondent company in August 2019 contrary to her
assertion that she was illegally dismissed in August 2019 (see her
pro-forma complaint). Therefore, there was no illegal dismissal to
speak of in August 2019. This is a case of Karen Oafericua
contradicting Karen Oafericua.

5. The suspensions of complainant in August and September

were within the company policies. Since Lynderm is a beauty salon
wherein health is at stake, suspension of employees are done in an
alternate manner. To reiterate, there were employees in the same
branches who were suspended like her.

6. The averment of complainant that she was allegedly humiliated

on August 5, 2019 is simply not true and aim to put drama on her
shortcomings. Complainant completely forgot that she was the
Supervisor of the branch and all bucks fall on her. Clearly,
respondents was just protecting its interest and the meeting was
done in the exercise of its management prerogative.

7. The return of complainant to her former position is not

preconditioned on the engagement set for her and the staff. The
same planned to introduce new policies, to introduce new employees
to complainant, to remedy the decline of sales in the branch, to repair
the strained relationship between staff and complainant. If
complainant just showed up, then it would be the start of her

29
Magsaysay Maritime Corporation vs. NLRC; GR No. 186180, March 22, 2010.
employment. The engagement is a normal procedure in the company.

8. Respondents also did not tell complainant that her employment

depended on whether or not the staff would like her to return. That is
a brazen lie.

9. The conversation reveals that respondents wanted complainant

to resume her work that is why she was given message to come back
but complainant told respondents that she was ill.

10. The letter sent via registered mail to her last known address is a
proof that respondents want complainant to come back and resume
her work. However, complainant refused to claim said letter. It is to
be noted that the sending of the said letter precedes the filing of
the instant case by the complainant. The certification30 from the
Post Office of Dasmarinas that complainant failed is hereto attached
and made as integral part hereof.

11. Complainant is not entitled to 13 th month pay and SIL since she
was not illegally dismissed in the first place. She was the one who
abandoned her work. Nevertheless, respondents are willing to give
her statutory mandated benefits anytime.

12. The documents presented by herein respondents (e.g.

conversation and the letter via registered mail) are enough evidence
that complainant was not dismissed illegally.

13. Verily, complainant was not illegally dismissed nor was illegally
suspended. She just failed to return to work. However, respondents
are very much willing to accept complainant to her previous work
without loss of seniority rights.

RELIEF

WHEREFORE, it is most respectfully prayed that a Decision be

rendered by this Honorable Office

(i.) declaring that;

a.) complainant was not illegally

dismissed;

b.) complainant is not entitled for

separation pay, service
30
Annex “18”
 incentives leave pay and 13th
month pay;
(ii.) Ordering complainant to pay damages by
way of attorney’s fee.
Other remedies just and equitable under the premises are
likewise prayed.

Cabuyao City for Calamba City. March 17, 2020.

Mary Ann T. Casibo

Individual Respondent/Company’s Representative

Copy furnished:

Karen D. Oafrenicua
Simultaneous Filing