MEMORANDUM ON APPEAL

            The COMPLAINANT-APPELLANT x x x  (“xxx”), pro se, by way of APPEAL,

respectfully states:

I.                   INTRODUCTION. -  The subject matter of this Memorandum on Appeal is

the DECISION, dated December 29, 2016, of Labor Arbiter xxx, DISMISSING the
Complaint of the herein Complainant-Appellant xxx for alleged lack of merit,
the duplicate original copy of which is attached as Annex “A” hereof, for the record.

II.                MATERIAL DATES. – The herein appellant xxx received on January 30, 2017, a

copy via registered mail of the questioned Decision, dated December 29, 2016, hence,
his tenth day to file this Memorandum on Appeal shall expire on February 9, 2017, as
per Rule VI of the 2011 NLRC Rules of Procedure.

III.             ADOPTION CLAUSE. -

For the record and for convenience, the herein appellant XXX hereby adopts into this
Memorandum on Appeal,  by incorporation and reference, all the allegations and
arguments stated in --- as well as all the supporting documents annexed to --- (a) his
MAIN POSITION PAPER filed with the Arbiter a qu0 on November 29, 2016 and (b) his
REPLY POSITION PAPER filed with the same Arbiter on December 9, 2016. 

IV.              ISSUES. – The herein appellant respectfully submits that the Labor Arbiter a
quo abused her discretion and committed serious errors of fact and law which, if not
corrected, would cause grave or irreparable damage or injury to the appellant:

(a)              In finding that the appellant was:

·         NOT CONSTRUCTIVELY DISMISSED,

·         NOT ENTITLED TO BACKWAGES AND REINSTATEMENT,
·         NOT ENTITLED TO UNPAID WAGES, SERVICE INCENTIVE LEAVE PAY AND
13TH MONTH PAY, and
·         NOT ENTITLED TO MORAL AND EXEMPLARY DAMAGES AND ATTORNEY’S
FEES.

(b)              In neglecting to resolve the following additional prayers of the appellant in his position
paper and reply-position paper:

·         RECEIVABLES of the appellant representing salaries and other benefits due him in the
amount of P61,166.99 as discussed in the Position Paper and Reply Position Paper of
the appellant;

·         Unpaid salaries equivalent to the 15-minute daily staff briefings for two and one-
half years (January 7, 2013 to May 8, 2015) as discussed in the body of this
Memorandum on Appeal.
(c)               In ruling that the herein appellant was not entitled to a copy of his CERTIFICATE OF
EMPLOYMENT, as a matter of right for his personal record, whether or not he wins or
he loses in the case, because the such a refusal by management was a valid exercise
of “management prerogative”.
(d)              In finding:

·         That the handwritten and rush “resignation letter” of the appellant was freely,
voluntarily, and intelligently written and submitted by him without direct or indirect (or
gross and subtle) coercion, duress, intimidation, threat, or, at the least, abuse of moral
ascendancy as superiors representing top management.

·         That the appellant’s alleged act of “expressing his gratitude” to management in his
handwritten and rush letter was a sign of voluntariness, intelligence and freedom in
resigning.

·         That the letters/certifications of respondents’ belated two witnesses, namely, xxx and
xxx, were credible despite the fact that the said letters/certifications were not executed
by the said witnesses under oath, that the said two witnesses did not appear in person
before the Arbiter to affirm their unnotarized letters/certifications, and  that the appellant
was not provided by the Arbiter a fair opportunity to rebut and controvert the same by
way of a Rejoinder-Position Paper, as an act of good and sound quasi-judicial
discretion.

·         That Management was authorized to deduct the bonuses the appellant had received by
reason of his alleged “voluntary resignation”.

V.                 DISCUSSION.

On January 7, 2013, the appellant was hired by the respondents as Senior Pit
Supervisor.  He started with a Gross Annual Salary of  P937,107.69. He was paid a
Gross 13th Month Pay of P78,092.31 per annum. His salaries were paid to him  every
15th and 3oth day of the month  (with the “cut off” dates of 5th day and 2oth day
of each month). He started with a monthly P84,600.00. His latest monthly salary
amounted to P85,431.90/month (as of May 8, 2015). He was provided the following
benefits during his tenure:

a.      Rice Subsidy – one sack/month. Its value was converted to cash at P1,000/month.
b.      Service Charge – latest amount thereof as of May 2015  was P2,993.13/month.
c.       Paid leave credits of twenty five (25) days/annum.
d.      Free meals (once per duty day).
e.      Health insurance – for himself and one of his children (Xxx, 17 years old [2015],
student of xxx University, BS Psychology).
f.        Life insurance – with a face value of P280,000.00.

In a Letter, dated January 28, 2014, issued by Mr. xxx, Chief Operating Officer and
President, for his “valuable contributions” to the company, he was given a BONUS
based on his base pay as of September 30, 2013. It was released on installment basis.
It was subject to certain conditions stated in the said Letter.
The complainant was a regular employee of the respondent company when he
was terminated on May 8, 2015 having served it for more than one year as of that
date as required by the Labor Code.

TARDINESS.

The appellant was imposed the following penalties for TARDINESS: On March 15,
2014, a WARNING was annotated by the Pit Manager in the complainant’s record in the
TEAM TRACK, where the daily monitoring of deviations and commendations of
employees are encoded). 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).  Pursuant to the said Notice, he submitted to the office of the
respondent Xxx Xxx one original copy of his handwritten EXPLANATION (He did not
prepare an extra file copy for himself). On May 7-9, 2014 he was SUSPENDED FOR
THREE DAYS. He was not given a copy of the suspension notice.  On July 13-18, 2014
he was SUSPENDED FOR SIX DAYS. Again, he was not given a copy of the
suspension notice.  Some of his tardiness before such suspension were caused by the
street blockage due to the on-going construction and/or improvement of the road where
the Casino was located.  (In the early part of 2015 some of his tardiness were caused
by the heavy traffic due to the papal visit of Pope Francis).

TO REPEAT: On March 15, 2014, a WARNING was annotated by the Pit Manager in
the TEAM TRACK  (called by the respondents as the “STAFF DIARY”) of the
complainant. As per the Notice to Explain, dated 11 April 2014, the complainant was
compelled to EXPLAIN his allegedly twelve instances of tardiness for the period March
12, 2013 to February 19, 2014, citing Sec. VI, Article XX (Punctuality and Attendance
15A) of the TEAM MEMBER CODE OF GOOD BEHAVIOR (TMCGB).
He submitted his handwritten Explanation. On May 7-9, 2014 he was SUSPENDED
FOR THREE DAYS. On July 13-18, 2014 he was SUSPENDED FOR SIX DAYS.
(Some of his tardiness before this particular suspension were caused by the street
blockage due to the on-going construction and/or improvement of the road where
the Casino was located. Further, in the early part of 2015 some of his tardiness were
caused by the heavy traffic due to the papal visit of Pope Francis). After fulfilling his six-
day suspension, he was late three times. In re: the aforecited three-day suspension of
the complainant, he was wrongfully subjected to such three-day suspension even if he
was late only once prior to the imposition thereof. In re the aforecited six-day
suspension of the complainant, he was wrongfully subjected to such six -day
suspension even if he was late only twice prior to the imposition thereof. Please note
that the so-called TEAM TRACK or STAFF DIARY system of the respondents operated
like a dictatorial, totalitarian and secret computerized Gestapo Counter-
Intelligence System that recorded alleged violations of employees without affording
them due process of law to contest and controvert the same before, during or after the
recording thereof by supervisors on duty who acted like mercenary spies in a military
camp.

FURTHER, IT SHOULD BE NOTED: In the span of two years and four months when
the appellant worked with the respondent company, he had a total of eighteen counts of
tardiness.  As for the absences they referred to by the respondents, there were covered
by his sick leave benefits which are all documented. The respondents alleged in their
position paper that the appellant had excessive sick leaves. To the knowledge of the
appellant, his leaves were all fair, reasonable, not too many, and were validly
documented. As to the alleged poor performance of the appellant, if that were true,
why were no formal administrative cases were commenced against him? The
appellant was suspended two times because of tardiness. Those suspensions were
questionable because he was not aware that he was being suspended. No proper legal
or administrative procedures took place to justify such alleged or questionable
suspensions. He did not receive any formal notice regarding his alleged suspensions.
As to the first twelve counts of tardiness from March 12, 2013 to February 19, 2014, his
first suspension was imposed when he was late for one time.  His second suspension
was imposed after another three counts of tardiness. Both suspensions were not
acknowledged by the appellant in writing for the reason that no formal notices were
given to him. He learned about them only when one day he reported for work to find out
when he tapped his ID Card on the computer rostering machine (WEBSAM) that he had
already been suspended. The trouble with the staff diary system of the respondent
company, on which the suspensions were based,  was that the entries therein were
encoded without his knowledge and without affording him a fair chance to be heard and
rebut the same.

ILLEGAL DISMISSAL.

On May 8, 2015 at about 2:00 PM to 4:00 PM the complainant was ABRUPTLY AND

VERBALLY DISMISSED FROM EMPLOYMENT by the respondent xxx in the presence
of his  immediate superior xxx (Gaming Shift Manager) inside the room of xxx. He was
then on duty from 7:00 AM to 3:00 PM.  He was sequestered by xxx inside her room
(human resource department). He was threatened and forced by 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. No lawyer for company was present to explain the
situation from the point of view of Labor Law.  He was not given the chance to confer
with a lawyer of his choice. His constitutional right to counsel was violated.  He
was not allowed to confer with his wife who was also employed in respondent
company. For two hours he was forced to stay inside the room of the respondent
xxx and/or within its immediate premises inside the HR area near the room of xxx.
He was treated like a prisoner. He begged xxx for three days to think about the
former’s order for him to issue immediately on the spot a handwritten resignation
letter. She denied the request. She forced him to write on the spot a rush
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 formal notice of
decision dismissing him from employment. Only after two hours of forcible
sequestration inside the room of the respondent xxx was he allowed to go home.

TO STRESS: On May 8, 2015, respondent xxx verbally told the appellant that the
latter had “already been officially terminated by the company due to tardiness”.
Instead of arguing with xxx, the appellant latter begged the former not to terminate him
because he had numerous financial  obligations to support his family. Xxx gave the
appellant the “option to resign” allegedly for the good of the latter’s employment
historical records. The appellant begged Xxx to give him a chance. She said she would
stand firm in her decision to implement the earlier decision of management dismissing
the appellant IF HE WOULD NOT RESIGN. She gave the appellant two options at that
time, i.e., to resign or be terminated pursuant to the earlier decision of
management to dismiss him. Her reason was that two suspensions had already been
imposed on the appellant as of that time.  After almost an hour of verbal threats by
Xxx, the appellant was forced to obey Xxx’s order for him to resign.  Nonetheless,
hoping against hope, the appellant asked Xxx to give him three days to think about
her offer of resignation. Xxx refused. She told the appellant that he should resign 
right there and then before his checkout time. Xxx and Xxx  Xxx glanced at each
other, stood up, walked out of Xxx’s office, told him to follow them outside the office,
and referred him to an assistant of Xxx who would assist him in the resignation
process. The identity of the said assistant was NOT XXX, the witness whose
unnotarized and unverified letter/certification was attached to the reply-position
paper of the respondents. It was made to appear that Xxx was the one who
processed the resignation of the appellant when the truth is that he was not. The
appellant was not given a chance to controvert the unverified letter/certification
of Xxx which was presented belatedly by respondents in their reply-position
paper.

Further, Xxx Xxx was not the head of the Gaming Department as noted on page 10 of
the decision of the Arbiter. The head thereof at that time (May 7, 2014) was MS. Xxx.
The Notice to Explain was not served on the appellant then because neither xxx nor 
Xxx spoke to the appellant then. No dialogue took place between the appellant and Xxx
took place on May 7,2014 contrary to the allegations of the respondents.

FORCED RESIGNATION LETTER. - The nature and physical character of the

resignation letter of the appellant show that he was forced to make it (handwritten) on
the spot or right there and then (May 8, 2015 before Xxx and Xxx and Xxx’s
assistant). The appellant was on duty at the pit when another supervisor took over the
appellant to see the latter’s shift manager who was standing nearby. The appellant
approached him. The appellant was told to go to Xxx’s office. When the appellant went
to Xxx’s office, he saw Xxx and Xxx already inside the office waiting for him. It was not
true that the appellant had submitted his voluntary resignation letter to Xxx at her
gaming office. The distance of the offices of Xxx and Xxx was about 300 meters. It was
not true that Xxx accompanied the appellant to Xxx’s office. Xxx was already inside the
office of Xxx before the appellant arrived there. Further, the alleged voluntary
resignation letter of the appellant was dated and was made effective May 8, 2015
(the very same date when he was called by Xxx to her office). The appellant was
then working on a 7:00 AM to 3:00 PM shift. He was in the middle of his duty when he
was forced by Xxx to make a rush handwritten resignation letter. The resignation letter
was handwritten with erasures. If the appellant was indeed voluntarily resigning, he
would have made it a point to make his resignation letter very formal and professional
in appearance, layout, content, and grammar (that is, computerized,
grammatically correct, and properly reviewed and edited). He would have
made many copies thereof for transmittal to and acknowledgment by the proper
offices which shall process the same for approval. It was illogical that his resignation
would be made effective on May 8, 2015 when he was still on duty.  Xxx did not let
the appellant go home unless he shall have finished and signed his forced and rush
handwritten resignation letter. His wife (who was also employed with the respondent
company) was then waiting for him for more than two hours outside the xxx premises.
She had just finished her own shift of 6:00am to 2:00pm. His wife had no idea of what
the appellant was going through then because the latter was not allowed to get his
mobile phone from the locker area so that he could call his wife.

Further, xxx’s statement that he assisted him thru the clearance process  and exit
interview was false and fabricated. He was NOT the person who was asked by Xxx to
go with and assist the appellant to write his forced and rush handwritten resignation
letter. He was NOT the person who was asked to assist the appellant during the
clearance process and during the alleged exit interview.  Despite the stress he was
undergoing then, the appellant was sure the assistant who processed his forced
resignation was not Xxx. The alleged exit interview form was falsified by Xxx with the
knowledge and consent of the respondents. The truth of the matter is that the appellant
was told to sign two blank forms. It was filled up by Xxx, not by the appellant. The
difference in their handwritings is obvious based on the case record. The part of the exit
interview form re: the “reason for leaving” was not filled up by the appellant but by Xxx
whose penmanship on the said form was obvious. The appellant did not go through
any formal exit interview and clearance process.

The appellant emphasizes that Xxx’s statement that the appellant submitted his
resignation letter to her was false and a lie. Xxx alleged that the appellant submitted his
resignation letter to her at her gaming office and that she accompanied him to Xxx’s
office. It is a lie. The truth of the matter was that the appellant went straight to
Xxx’s office from the Casino floor area. When he arrived at Xxx’s office, Xxx was
already there talking to Xxx while they were waiting for him. Xxx stayed there until
the appellant had finished the whole stressful process and until the appellant was given
permission to go home by Xxx.

As instructed by Xxx, after three days, the appellant returned to her office (i.e., May 11,
2015 or thereabout) to turn over to her staff a copy of his TMCGB (employees manual),
CASINO GAMING MANUAL, and his health insurance card.  (He was unable to turn
 over to the HR staff the health insurance card for his child Bill  Cameron Xxx because
the complainant had misplaced it at that time. Hence, he 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. He was told by the HR staff to call
from the said COMPENBEN staff after three or four months.

THE MISSING 201 FILE OF THE APPELLANT. - THE ARBITER IGNORED THE
MOTION OF THE APPELLANT TO COMPEL RESPONDENTS TO PRODUCE THE
SAME BY WAY OF DISCOVERY IN THE INTEREST OF TRANSPARECNY, TRUTH
AND JUSTICE. -  The appellant had previously 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 main position paper.  The HR
staff 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, the said staff did not state. Only the birth certificate
and transcripts of schools records were given to the complainant. The appellant
had expressly moved in this main position paper and in his reply-position paper before
the Arbiter a quo to compel the respondents to produce his 201 File but the Arbiter
ignored the two formal motions, thus,  contributing to the injurious and malicious
secrecy of the respondents. (Note: The respondents did not volunteer to produce
the 201 File of the appellant in their main and reply position papers).

RESPONDENTS VIOLATED THEIR OWN RULES OF PROCEDURE AS CONTAINED

IN ARTICLE X of the TMCGB WHICH CONTAINED 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 Business Partner (i.e., respondent Xxx Xxx).
(i)                The “HRA” (HR Business Partner) 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. It is
presumed that the foregoing proceedings are documented in the 201 File of the
employee.

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 (HR Business Partner, respondent
Xxx Xxx). It is presumed that the foregoing proceedings are documented in the
201 File of the employee.

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 Officer (COO).
(j)                The Panel decides by consensus.
(k)            The dissenting opinions within the Panel shall be in writing. It is presumed that
the foregoing proceedings are documented in the 201 File of the employee.

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 resorted 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 HR Business Partner (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.

TO STRESS: After a six days suspension, the complainant was abruptly and

illegal DISMISSED on May 8, 2015. On March 15, 2014, a WARNING was annotated
by the Pit Manager in the complainant’s record in the TEAM TRACK, where the daily
monitoring of deviations and commendations of employees are encoded). 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). Pursuant to the said Notice, he submitted to
the office of the respondent Xxx Xxx one original copy of his handwritten
EXPLANATION (He did not prepare an extra file copy for himself). On May 7-9, 2014
he was SUSPENDED FOR THREE DAYS. On July 13-18, 2014 he was SUSPENDED
FOR SIX DAYS. Some of his tardiness before such suspension were caused by the
street blockage due to the on-going construction and/or improvement of the road where
the Casino was located.  In the early part of 2015 some of his tardiness were caused by
the heavy traffic due to the papal visit of Pope Francis.  

RIGHT TO DUE PROCESS OF LAW, RIGHT TO COUNSEL, AND RIGHT TO

SECURITY OF TENURE.--- As discussed above, on May 8, 2015 at about 2:00 PM to
4:00 PM the complainant was told by Xxx that the appellant had been dismissed by
management for tardiness. To make it appear that Xxx was doing the appellant some
good (i.e., in order not to blemish the employment record of the appellant), the former
pressured the appellant to submit to her on the spot a rush handwritten resignation
letter. Otherwise, Xxx would enforce the bygone decision of management to dismiss
 him. The appellant’s immediate superior Xxx (Gaming Shift Manager) was present
inside the room of Xxx (HRD). The appellant was then on duty from 7:00 AM to 3:00
PM. 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 rights to
due process of law and to counsel were violated.

Article 277 of the Labor Code provides for the DUE PROCESS OF LAW:

“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).”

FURTHER, Article 279 of the Code provides for the SECURITY OF TENURE of a
worker:

“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).”

FURTHERMORE, 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; and xx x.”

TO EMPHASIZE: The complainant is guilty merely of the MINOR OFFENSE OF

TARDINESS. He is NOT GUILTY 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).

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 2015  - P1,210.32;
·         Service charge - May 2015 - P2,993.13;
·         Refundable income tax - P25,189.07.

The total of the foregoing items was P53,357.60.

After illegally dismissing the appellant, the respondent company unjustly and without
legal basis DEDUCTED the amount of P88,417.11 from his receivables, broken down
as follows:
 ·         Phase 1A bonus - P30,889.11; and
·         Loyalty bonus = P57,528.00.

UNPAID OFFICIAL TIME (15 MINUTES DAILY BRIEFINGS BEFORE COMMENCING

WORK). –  Further, the appellant asks: Why did the Arbiter a quo fail to discuss and
resolve his prayer to be paid his salaries for the time spend for the daily fifteen minutes
early check-in time (for briefing purposes, etc.). They ought to be considered as
overtime worked or regular time worked. As discussed in his position papers filed below,
a miscellaneous cause of action that the appellant had presented for resolution was
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.

CERTIFICATE OF EMPLOYMENT. -  Nothing in the Labor Code and in existing

jurisprudence states that if a worker loses his labor case, he is not entitled at all to be
issued a certificate of employment showing his employment history for his record and
reference. Nothing in the law and existing jurisprudence commands that if a worker
loses his labor case, the management has the absolute power to withhold his
certificate of employment showing his employment history for his record and
reference. The Arbiter a quo gravely erred in concluding that the issuance of such a
certificate of employment, whether or not a complaining worker wins or loses, is a
matter of management prerogative. No Labor Code provision and no jurisprudence
were cited to prove such an unjust and anti-labor conclusion. It is the submission of
the appellant that he is entitled to a certificate of employment showing is
employment history for his record and reference whether or not he wins or loses
his labor case.

VI.              PRAYER.

WHEREFORE, premises considered, it is respectfully prayed:

1.       That the appealed DECISION, dated December 29, 2016, be REVERSED AND SET
ASIDE;

2.      That the appellant be declared as having been ILLEGALLY DISMISSED by the

appellees.

3.      That the appellees be ordered to pay or issue to the appellant, as the case may be the
following amounts:
(a)              BACKWAGES from the date of his illegal dismissal on May 8, 2015 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)              RECEIVABLES of the appellant XXX representing salaries and other benefits due him
in the amount of P61,166.99 as discussed in the Position Paper and Reply Position
Paper of the appellant;

(e)              Attorney’s Fees equivalent to Ten Percent (10%) of the damages awarded.

(f)                Unpaid salaries equivalent to the 15-minute daily staff briefings for two and one-
half years (January 7, 2013 to May 8, 2015) as discussed in the body of this
Memorandum on Appeal.

4.      That the CERTIFICATE OF EMPLOYMENT of the appellant XXX be issued to him, as

a matter of right and for his personal record, whether or not he is reinstated or
whether or not this appeal is granted.

FINALLY, the appellant respectfully pays for such and other reliefs as may be deemed
just and equitable in the premises.

Las Pinas City, February 1, 2017.

XXX
Complainant-Appellant
Xxxx

VERIFICATION
AND
ANTI-FORUM SHOPPING CERTIFICATION

            I,  XXX, of legal age, married, Filipino, and with postal address at x x x x, under
oath, depose: 

That I am the complainant-appellant in the foregoing Memorandum of Appeal;

that I caused the preparation thereof; that I have read its contents; and that the same
are true and correct of my own direct/personal knowledge and based on authentic
records.

            Further, pursuant to Rule 7 of the 1997 Rules of Civil Procedure in relation to the
2011 NLRC Rules of Procedure, I hereby certify that I have not heretofore commenced
any other action or proceeding involving the same issues in the Supreme Court, the
Court of Appeals, or any other tribunal or agency; 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; and that if I should hereafter learn that other
similar or related actions or proceedings has been filed or is pending before the
Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to
report that fact within five (5) days therefrom to this Commission.
            Las Pinas City, February 7, 2017.

XXXX
Affiant/Appellant

            SUBSCRIBED AND SWORN TO BEFORE ME in ___________ on

_____________________, affiant showing his competent proof of identity as
follows: LTO Driver’s License No.  x x x expiring on x x x x.

                                                                                    Notary Public

Doc. No.
Page No.
Book No.
Series of 2017.

Copy Furnished:

Atty. xxx
Atty. xxx
Counsel for Respondents-Appellees
Xxxxx

            Reg. Rec. No.

            Date                                        PO

                                                            EXPLANATION

            A copy of this pledging is served on the adverse counsel via registered

mail instead of via personal service due to the urgency of filing the same and due to the
distance of the law office address of the adverse counsel.

                                                                                    X X X X

AFFIDAVIT OF SERVICE
            I, x x x XXX, of legal age, married, Filipino, and with postal address at x x x x,
under oath, depose: 

That I am the complainant-appellant in the foregoing Memorandum of Appeal;

That on _______________ I served a copy of the foregoing Memorandum on

Appeal on the adverse counsel in the instant case via registered mail with return
card, to wit:

Atty. xxx
Atty. xxx
Counsel for Respondents
Xxxxxx
                        Reg. Rec. No. ______________________
                        Date____________          PO ____________
           
            That the original of the aforementioned registry receipt is attached
above, opposite the names of the adverse counsel to prove the foregoing statement.
            That I am executing this affidavit of service as per Rule VI (Appeals) of the
NLRC Rules of Procedure to prove the fact of service of a copy of the foregoing
Memorandum on Appeal on the aforementioned adverse counsel.
            Las Pinas City, February ____, 2017.

XXXX
Complainant-Appellant
X x x xx

            SUBSCRIBED AND SWORN TO BEFORE ME in ___________ on

_____________________, affiant showing his competent proof of identity as
follows: LTO Driver’s License No. x x xx expiring on x x xx.

                                                                                                            Notary Public

Doc. No.
Page No.
Book No.

Series of 2017