Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

adsfsadf
Complainant,
NLRC CASE NO. NCR-10-16212-17
Hon. Labor Arbiter Gaudencio P. Demaisip, Jr.
-versus-

asdfasdfa,
Respondents.
x---------------------------------x

COMPLAINANT’S POSITION PAPER

COMPLAINANT asdfasdfasd by the undersigned counsel, respectfully

submits this Position Paper, constitutive of her causes of action against the

respondents, to wit –

PREFATORY STATEMENT

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.

Under the law, the management prerogative to hire and fire ends where the

workers’ right to security of tenure and due process begins. While employers have

the basic and inherent freedom to discipline employees, no less than the

Constitution and the Labor Code have laid down strict rules on the just and

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authorized causes for exercising such an extreme option, as well as established

stringent procedures for the manner of dismissing people. For what is involved in

such situations is not just work or occupation, but livelihood, the source of living

of the worker involved, and her family.

THE PARTIES

1. Complainant sdafas (hereinafter referred to as complainant Villaruel)

is a single parent with five (5) children, three (3) of which were minors and

resident of 23 asdfasdf St., NSFV Cainta Rizal, 1900. She can be served with

notices, orders, resolutions, and other processes of this Honorable Labor

Arbitration Branch at the address of her undersigned counsel.

2. Respondent asdfsadf (hereinafter referred to as respondent Mission

Hospital) is a secondary level hospital offering healthcare services owned and

managed by MMG health cooperative. It may be served with summons, orders,

resolutions, and other processes of this Honorable Office at KM 17 Ortigas Ave.

Ext., Rosario Pasig City, 1609.

3. Respondent asdfsad MARCIAL (hereinafter referred to as respondent

Martial) is the CEO/Medical Director of respondent asdf. He is of legal age,

Filipino and with office address at asdfasdf Ext., Rosario Pasig City, 1609 where

he may be served with notices, orders and resolutions of this Honorable Labor

Arbitration Office.

4. Respondent asdfasd (hereinafter referred to as respondent Del

Rosario) is the Head of the Human Resources Development of respondent Mission

Hospital. She is of legal age, Filipino and with office address at KM 17 Ortigas

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Ave. Ext., Rosario Pasig City, 1609 where she may be served with notices, orders

and resolutions of this Honorable Labor Arbitration Office.

STATEMENT OF THE CASE

5. This is a case of Illegal Dismissal, Money Claims for Service

Incentive Leave Pay, thirteenth (13th) Month Pay, share contributions, Separation

Pay and Damages.

6. This case was set for mediation but parties failed to come up with

reasonable Compromised Agreement, hence, they were directed to file their

respective Position Paper.

STATEMENT OF RELEVANT FACTS

7. The Complainant was a regular employee, hired as a Staff Nurse in

the asdfasdf Hospital on April 2006. A copy of complainant’s employee contract is

attached as Annex “A” and a copy of her employment certification is attached as

Annex “A-1”. Considering the fact that she is a registered nurse, complainant was

receiving a monthly salary of Fourteen Thousand Three Hundred Seventy-Two and

Eighty centavo (Php 14,372.80). A copy of the complainant’s pay slip for the

payroll period of August 10, 2017 is attached as Annex “B”.

8. After the period of 5 years as Staff Nurse, she was transferred to Out

Patient Department / Central Registration Unit Staff because of her experience and

expertise and have served there for more than six (6) years.

9. As a policy of the respondent Mission Hospital, every employee is

given a vacation leave in a year. The Complainant being a long time employee who

have served the respondent Mission Hospital for more than eleven (11) years were

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entitled for a 15 days planned leave which were scheduled in advance tentatively to

ensure the proper rotation of the duty schedules.

10. The Complainant’s planned leave for the month of July were

tentatively scheduled on July 19 and July 30 and was submitted to the Human

Resource Office. The planned leave for the incoming month is thereafter finally

identified by the employee on the last day of present month subject to the approval

of the employees’ immediate head.

11. On June 30, 2017, the Complainant identified her desired final

schedule for her planned leave on July 11 and 12 and was submitted for the

approval of her immediate head. The said planned leave is plotted on employees’

work schedule for cut off July 1-15 which was submitted for the approval of

Central Registration Unit Staff Head.

12. The Complainant’s planned leave for the month of July as plotted in

employees’ work schedule was duly approved by her immediate head. Copy of the

approved and signed employees’ work schedule for the month of July is attached

as Annex “C”.

13. When the Complainant was about to file her leave form for the

approved planned leaved for the month of July, she opted to classify her leave as

leave without pay instead of utilizing her authorized vacation leave/planned leave.

14. On the day of filing of Complainant’s leave form, her immediate head

(Dr. asdfsadd Vega) was not around the office. A certain Ms. Karen, Dr. Vega’s

secretary, advised the Complainant to just leave the pre-approved leave form to her

(Ms. Karen) and the latter will submit it to Dr. Vega.

15. On July 11 and 12, the Complainant went on leave as approved by her

immediate head. However, when the Complainant returned to work, she was
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informed by her colleagues that Dr. Vega was very mad because allegedly she did

not approved the Complainant’s leave despite the fact that she signed the

employees’ work schedule for the month of July wherein the planned leave of the

Complainant is clearly plotted.

16. On July 17, 2017, the Complainant received a “Notice to Explain”

from the HR Office asking her to explain her alleged Absence Without Leave on

July 11 and 12. As way of settling the misunderstanding among the OPD/CRU

Nurses and their immediate head, a Department Meeting was conducted which

lasted for five (5) hours. The issue on Complainant’s alleged Absence Without

Leave was also discussed and settled in the said meeting. The Complainant even

apologized to her immediate head for any misunderstanding that may have caused

by her July 11 and 12 approved leave. Thus, a verbal and written explanation was

furnished by the Complainant for the alleged Absence Without Leave. A copy of

the written explanation of the Complainant is attached as Annex “D”.

17. On August 5, 2017, the Complainant received an invitation to a

Disciplinary Hearing at the Management Office without any previous notice to

appraise her of any particular acts or omission that necessitates the conduct of a

disciplinary hearing. A copy of the invitation to disciplinary hearing is attached as

Annex “E”.

18. During the August 10, 2017 Disciplinary Hearing, the Complainant

was surprised when her immediate head (Dr. Vega) was infuriated and charging

the Complainant anew with “Dishonesty” instead of an Absence Without Leave as

stated in the previous “Notice to Explain”.

19. The Complainant vehemently denied the new charge of Dishonesty

for it was completely remote and unrelated to the exercise of her allowed leave of
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absence which was fully explained and settled in the previously conducted

Department Meeting.

20. On August 11, 2017, respondent Del Rosario, the HR Head, verbally

informed the Complainant of the Executive Committees’ decision to dismiss the

Complainant without any further explanation as to the basis of the dismissal.

21. On August 30, 2017, the Complainant was given a copy of the

Decision to terminate her employment. A copy of the notice of termination is

attached as Annex “F”. It is worthy to note that the Notice of Termination was

issued August 22, 2017 but it was only served to the Complainant on August 30,

2017. The unusual delay in service of the Notice of Termination shows the

uncertainty of the Respondents as to the legality of their decision to terminate the

employment of the Complainant. Despite the service of the Notice of Termination,

the Complainant was asked by the Respondents to remain on duty and her name

was even included in the September 1-15 employees work schedule. A copy of the

September 1-15 employees work schedule is attached as Annex “G”. Also, the

Complainant was asked by respondent Dr. Marcial, the Medical Director, to appeal

her case as a matter of procedure so that they can reconsider their unreasonable

decision. However, the Complainant feeling abused, devastated and oppressed

could no longer bear the injustice done to her opted not to appeal her case.

22. A series of conciliation conferences where held at the Department of

Labor and Employment (DOLE) Region IV A under the Single Entry Approach

(SENA) wherein the Respondents offered to pay the Complainant the amount of

Seventy Six Thousand One Hundred Thirty Five and Fifteen Centavo (Php

76,135.15) as a settlement of claims. A copy of the minutes of conference is

attached as Annex “H”. The parties was not able to reach an acceptable settlement
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of the case. Hence, the SENA desk officer has reffered the case to this Honorable

Office.

23. On October 30, 2017, Complainant filed the instant complaint before

this Honorable Office and on November 21, 2017, a mandatory conciliation and

mediation conference were held wherein respondent Del Rosario, representing the

Management of Mission Hospital, committed to settle with the Complainant for the

total amount of Four Hundred Thousand Pesos (Php 400,000.00). However, on the

following mandatory conference on November 28, 2017, respondent Del Rosario

informed the complainant that the management has approved One Hundred Fifty

Thousand Pesos (Php 150,000.00) only as a settlement for her claims and the

Complainant refused to accept the offer. As a consequence, this Honorable Office

issued an order directing the parties to submit their respective position paper.

Hence, this position paper.

ISSUES

1. Whether or not the Complainant was illegally dismissed.

2. Whether or not Complainant is entitled to separation pay of one (1)

month salary for every year of service, 13th month pay, service incentive

leave, holiday pay, overtime / night shift differential pay, monthly stock

share contributions, back wages and other benefits mandated by law.

3. Whether or not the Respondent is liable to the Complainant for

exemplary damages and moral damages.

4. Whether or not Complainant is entitled to recover attorney’s fees from

respondent.

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 ARGUMENTS AND DISCUSSIONS

Complainant Villaruel thru undersigned counsel respectfully submits in the

affirmative for all the issues.

FIRST ISSUE: (ILLEGAL DISMISSAL)

From the foregoing facts, it is clear that the dismissal of the Complainant

was illegal thus she should be paid of her separation pay as provided by law. The

dismissal of the Complainant was in violation of the substantive and procedural

requirement as required by law.

Firstly, on the issue of lack of substantive due process. Complainant was

dismissed on the ground of Dishonesty (Fraud and Other Willful Breach of Trust)

under RULE 1 of the Code of Discipline of Mission Hospital. Under our prevailing

Jurisprudence, this ground of lack of trust and confidence can only dismiss an

employee who occupies a position of confidence. By this, she must be invested

with confidence on delicate matters, such as custody, handling or care and

protection of the property and assets of the employer. (Panday vs. NLRC, G.R. No.

67664, May 20, 1992).

The dismissal of an employee for lack of trust and confidence must be based

on substantial evidence and not on the employer’s whims or caprices or suspicions;

otherwise, the employee would eternally remain at the mercy of the employer.

Also, in order to constitute a just cause for dismissal, the act complained of must

be work-related and shows that the employee concerned is unfit to continue

working for the employer. Here, the Complainant, as an OPD Nurse, does not

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occupy a position of confidence and worst, the act complained of is not work-

related as an OPD Nurse but merely on the exercise of the Complainant’s right to

enjoy the Leave Benefits to which she is legally entitled. The “Dishonesty” as

alleged by the respondent Mission Hospital pertains to the plotting of the Planned

Leave in the monthly work schedule which was approved by the Hospital

Administrator and it has nothing to do with the work of Complainant Villaruel as

an OPD Nurse. It is also worthy to note that Complainant Villaruel was not unfit to

continue working as an OPD Nurse. In fact, she was even asked by the Medical

Director to continue working even after the decision of Termination was tendered

and he even urged the Complainant to file for a written appeal to her termination.

Secondly, on the issue of procedural due process. Complainant Villaruel was

summarily dismissed after being invited to a “Disciplinary Hearing” without

informing her of the offense she allegedly committed and the possible penalty

attendant thereto. Under our laws and Jurisprudence, the employer is bound to

furnish the employee concerned with two written notices before termination of

employment can be legally effected. One is the notice apprising the employee of

the particular acts or omissions for which dismissal is sought and this may loosely

be considered as the proper charge. In here, the first notice must contain the

specific causes or grounds for termination against her, and a directive that the

employee is given the opportunity to submit their written explanation within a

reasonable period. 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. The other is the notice informing

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the employee of the management’s decision to sever her employment. This

decision, however, must come only after the employee is given a reasonable period

from receipt of the first notice within which to answer the charge, thereby giving

her ample opportunity to be heard and defend herself with the assistance of her

representative should she desire (Errector Advertising Sign Group, Inc. and Arch.

Jimmy C. Amoroto vs. NLRC, G. R. No. 167218, July 2, 2010).

In the instant case, Complainant was merely given a “Notice to Explain”

informing her of the cause of her alleged infraction of absence without

permission. The issue on Complainant’s absence without leave was already settled

during the Department Meeting called by Dr. Vega, the immediate head of the

complainant. In fact, the Complainant was subsequently allowed by her immediate

head to utilize her planned leave for the same month of July. A copy of the duly

approved leave application form for the month of July is attached as Annex “I”.

Worst, the Complainant was not informed that the respondent Mission

Hospital is intending to terminate her services if found guilty of the charge as

stated in the Notice to Explain. The “Invitation to a Disciplinary Hearing “given to

the Complainant does not specify that the alleged infraction she committed would

result to her termination if found guilty. Such invitation merely informed her of the

alleged dishonesty without specifically explaining to the Complainant the acts

complained of and the possible outcome of termination. In fact, in the Notice of

Termination, it was stated in the paragraph 5 of the portion “Antecedent Facts” that

the Notice to Explain issued to the Complainant requires her to explain within five

(5) days from receipt thereof why she should not be sanctioned for her absence

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without permission and not for her alleged dishonesty. A copy of the Notice of

Termination is attached as Annex “J”.

It is worthy to note that under the Code of Discipline of respondent asdfasdf

Hospital, specifically Rule VII Section 1, it provides for a penalty of Reprimand

for 1-2 consecutive days of absence without permission within a 30-day period and

not Termination. A copy of the Code of Discipline of respondent Mission

Hospital is attached as Annex “K”.

Hence, the decision of the respondent Mission Hospital to terminate the

Complainant was too harsh a punishment even if we consider her absence for two

(2) days as an absence without permission.

SECOND ISSUE: (SEPARATION PAY OF ONE (1) MONTH SALARY FOR

EVERY YEAR OF SERVICE, 13TH MONTH PAY, SERVICE INCENTIVE

LEAVE, HOLIDAY PAY, OVERTIME / NIGHT SHIFT DIFFERENTIAL PAY,

SHARE CAPITAL CONTRIBUTION, BACK WAGES AND OTHER

BENEFITS MANDATED BY LAW).

As to the entitlement of 13th month pay, service incentive leave, holiday pay,

overtime / night shift differential pay, share capital contribution, back wages and

other benefits mandated by law, the Complainant believes that he is entitled to the

same just like all other regular employees and as guaranteed by the Labor Code of

the Philippines. The Complainant by reason of the illegal dismissal was deprived

of his 13th month pay, service incentive leave, holiday pay, overtime / night shift

differential pay, back wages and other benefits.

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 In the case of Wenphil Corporation vs. Almer Abing and Anabelle Tuazon

(G.R. No. 207983, April 7, 2014), the Supreme Court held that “an illegally

dismissed employee is entitled to payment of backwages, despite the award of

separation pay. The Court points out that reinstatement and backwages are two

separate reliefs available to an illegally dismissed employee. Payment of

backwages is a form of relief that restores the income that was lost by reason of

unlawful dismissal; separation pay, in contrast, is oriented towards the immediate

future, the transitional period the dismissed employee must undergo before

locating a replacement job. Separation pay is granted where reinstatement is no

longer advisable because of strained relations between the employee and the

employer. Backwages represents compensation that should have been earned but

were not collected because of the unjust dismissal. The basis for computing

separation pay is usually the length of the employee’s past service, while that for

back wages is the actual period when the employee was unlawfully prevented from

working.” Thus, pursuant to Article 283 of the Labor Code, the Complainant is to

her separation pay equivalent to one (1) month pay for every year of service.

As to the share capital contribution, the Complainant has contributed a total

of 135.5 monthly contributions for her more than 11 years of service. As a policy

of the respondent Mission Hospital, an employee may withdraw her share of

capital. A copy of the individual employee deposit and loan ledger is attached as

Annex “L”.

THIRD ISSUE: (EXEMPLARY DAMAGES AND MORAL DAMAGES).

The herein Complainant is entitled to moral damages because the dismissal

of the complainant was attended by bad faith of the respondents constitutive of an

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act oppressive to labor. Moral damages are awarded in termination cases where the

employee’s dismissal was attended by bad faith, malice or fraud, or where it

constitutes an act oppressive to labor, or where it was done in a manner contrary to

morals, good customs or public policy (Mayon Hotel and Restaurant vs. Adana,

497 Phil. 892, 922 (2005).

In the instant case, there is no other plausible explanation for the acts of the

Respondents of the manner wherein the Complainant was deprived of her

employment except bad faith. One glaring proof is the offer of the respondent Dr.

Marcial to the complainant to file an appeal for her case and continue to render her

duty as OPD Nurse despite the Termination Notice already served. In fact, the

Complainant was urged to continue to report to duty despite the termination

becomes final. Another was when in the course of the SENA Conciliation

conference and during the Mandatory Conciliation Conference before this

Honorable Office, the respondents through its representative offered the

Complainant a meager sum in order for her to finally quit her claims and be

considered separated from service. These are clearly abusive conduct of the

Respondents and an attempt to exploit the socio-economic standing of its

employees. This is oppressive thus warrants Exemplary Damages for the

Complainant by way of example or correction for the public good.

Furthermore, as the Complainant suffered mental anguish, serious anxiety,

besmirched reputation, and social humiliation by reason of the Respondents’

unreasonable acts and in particular because the former has to face financial

uncertainty caused by this Legal Action, a claim for Moral Damages therefore is in

order.

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FOURTH ISSUE: (RESPONDENTS ARE LIABLE FOR ATTORNEY’S FEES

Under Article 2208 of the New Civil Code, attorney’s fees can be recovered

in actions for the recovery of wages of laborers and actions for indemnity under

employer’s liability laws. Attorney’s fees are also recoverable when the

defendant’s act or omission has compelled the Plaintiff to incur expenses to protect

his interest.

In the case of Rutaquio vs. National Labor Relations Commission (375 Phil.

405, 418 (1999), the Supreme Court held that :

“It is settled that in actions for recovery of wages or

where an employee was forced to litigate and, thus, incur
expenses to protect his rights and interests, the award of
attorney’s fees is legally and morally justifiable.”

In the instant case, respondents’ capricious act of illegally dismissing the

Complainant has compelled the latter to hire the services of the counsels or

attorneys for a fee (from consultations, notarization, etc.) in order to protect her

right and interest.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Labor Arbiter, that decision be rendered, to wit:

1. Declaring the act of the herein Respondents as constituting illegal

dismissal.

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 2. Ordering Respondents to pay unto the Complainant separation pay of one

(1) Month salary for every year of service, 13 th month pay, service

incentive leave pay, holiday pay, overtime / night shift differential pay,

share capital contribution, backwages, and other benefits mandated by

law.

3. Ordering the Respondents to pay her salary for the month of September

2017 up to the disposition of this case representing BACKWAGES.

4. Furthermore, it is likewise prayed unto the Honorable Labor Arbiter to

order the Respondents to pay the herein Complainant the amount of Php

200,000 as moral damages and the amount of Php 100,000 as exemplary

damages.

5. Respondents pay the Attorney’s fees equivalent to 10% of the judgement

award.

6. Ordering the Respondents to issue to the Complainant her Certificate of

Employment.

FINALLY, the Complainant respectfully prays for such and other reliefs as

may be deemed just and equitable in the premises.

RESPECTFULLY SUBMITTED.

Quezon City, December 14, 2017.

Atty. asdfasdfsadf.
Counsel for the Complainant
asdfasdfasdfasdf, Quezon City
IBP Lifetime Mem. Noasdfasdfasf, asdfasdfasf
15
 PTR No. adsfasdf, Quezon City
Roll Noasdfasdf admitted on 17 asfdasdf
MCLE Compliance No. VI – 0001650

Republic of the Philippines )

Quezon City, Metro Manila ) s.s.

VERIFICATION & CERTIFICATION

I, asdfasdfasdf, of legal age, Filipino and resident of 23 E Bowling Lane St.,

NSFV Cainta Rizal, 1900, after having been sworn in accordance with law, depose
and state that:

I am the complainant in the above-entitled case; I have caused the

preparation of the foregoing position paper and I have read the same and the
contents of which are true and correct of my own knowledge and/or on the basis of
authentic documents.

Furthermore, in compliance with the Rules of Court, I hereby certify that I

have not commenced any other action or proceedings involving the same issues in
the Supreme Court, the Court of Appeals, or different divisions thereof, or any
other tribunal or agency; and that to the best of my knowledge, no such action or
proceeding is pending in the Supreme Court, the Court of Appeals, or any other
tribunal or agency. If I learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or any other tribunal or
agency, I shall notify this Honorable Office within five (5) days from notice.

IN WITNESS WHEREOF, I hereunto affix my signature this 14 th of

December 2017 in Quezon City.

asdfasdfasdf
Affiant

SUBSCRIBED AND SWORN to before me this 14 th of December 2017 in

Quezon City by affiant with PRC ID No. 0269350 issued at PRC Manila on 1
September 2016 and valid until 4 January 2019.

Doc. No. _____;

Page No. _____;
Book No._____;
Series of 2017.

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Copy Furnished:

Ms. asdfasdfasdf ROSARIO

Respondents Representative
(To be personally given during the hearing on December 14, 2017 at 10:00 AM)

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