Position Paper Labor Case

REPUBLIC OF THE PHILIPPINES NATIONAL LABOR RELATIONS COMMISSION SUB-REGIONAL ARBITRATION BRANCH 6, ILOILO CITY

PAULINE E. BARDENAS Complainant, -versus-

NLRC SRAB CASE NO.VI-07-50193-15 For: Illegal Dismissal / Money Claims and Damages

TELE-SKILLS CALL CENTER, Respondent. x-----------------------------------------------------------------------------------------x

POSITION PAPER Respondent by counsel, respectfully states: 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 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 employee1 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 employer2. 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 1 2

Referring to herein complainant. Referring to herein respondent.

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 deserved an outrightly dismissal THE PARTIES 1. Respondent, Tele-Skills Call Center is a sole proprietorship engages in business process outsourcing (BPO), owned by spouses, Mary Ann Alegada and Alberto Alegada Jr, being impleaded herein in their capacity as an Officer thereof, with an office address at 3rd Floor Arguelles Building, Arguelles Street, Jaro, Iloilo City. 2. Complainant, Pauline Barsenas is a former employee of respondent who intentionally abandoned her work. STATEMENT OF THE CASE 3. This is the case of Illegal Dismissal, Money Claims for Service Incentives Leave Pay, Thirteenth (13th) Month Pay and Separation Pay. 4. 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 THE RELEVANT FACTS 5. Complainant started her employment stint with the respondent as trainee on 05 February 2015. Considering the fact that she is well equipped with experienced, complainant was receiving an allowance of Four Hundred Pesos (Php.400.00) per day, which is doubled from the supposed amount she will received as trainee thereof. 6. Accordingly, when the twenty (20) days training period had lapsed, she was absorb as contractual employee, handling one of respondent’s prized client, i.e. Zurich Insurance. 7. However, during her stint as agent, glitches in complainant character had also started to occur, such as: a. Refusal to render very necessary overtime, despite respondent humble plea.

b. Defiance policy and order.

to

reasonable

company

c. Initiating trouble and fight within the work premises and with other employees. d. Casting respondents.

bad

views

against

8. Since the account she handled was very important, respondent 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. 9. To address the above discussed nervy defiance of the company ´s rules and regulation, memorandum and several incident report was given to complainant. Nonetheless, she merely ignored the same. In her vain attempt not to be bound by it, she refused to receive such memorandum or take necessary action to correct any of the incident reports, where she was involved. A copy of the said incidents reports is hereto attached as Annex 1, 1A, 1-B, respectively. Memorandum given to complainant as Annex 2, 2-A, 2-B and 2-C, respectively. A copy of complainant’s Facebook public conversation is attached as Annex 2. 10. On 05 June 2015, complainant approached respondent, requesting that she will be allowed to absent as she had to attend some personal events, which comes to her knowledge almost two (2) weeks earlier. Considering that the said request was done badly out of time, respondent refused to heed the same as it cannot abruptly pull out any other agents for her replacement. 11. Frustrated by the foregoing refusal, complainant with her sarcastic attitude, insulted respondent by using foul words that could provoke a fight. In order not to cause altercation or any form of oral tirade with complainant, respondents on the other hand, merely ignored the same. 12. Cannot be deterred with her fervent desired to absent, which was denied, complainant again bad mounted respondents when she was about to get her salary on the even date. With an intention merely to vindicate itself from intemperate remarks spill out from the very mount of complainant, respondent break its silence when it handed complainant’s full

and complete salary by uttering a words; “ari sweldo mo, sa lunes wala kana diri balikan” Incident Report is hereto attached as Annex 3 13. With her boundless enthusiasm to humiliate respondent, complainants answered back by saying “nga-a hindi mo ako pagbalikun haw, mabalik pa ako sa lunes para magkuha sang COE”and swiftly left the premises, and swiftly left the premises shouting loudly some malicious statement that can be heard throughout the building. 14. 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 one, who feed her mount and her family. 15. 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 whatever issues that transpired in untoward incident. Nonetheless, complainants never appeared, even the glimpse of her shadows never showed up on the next succeeding working days. 16. It is unfortunate that in order to save his neck from the ill effects of his clear and apparent arrogance, which apparently surprise respondent, complainant filed this present unfounded Complaints. 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.

17. 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. 18. As succinctly discussed above, respondent still waited for the complainant to report for work on the next working day. The very reason why it allowed complainant to leave the premises unsettled was to at least cool down the heated conflict cause by the verbal tirade between them. 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 with no recourse but to hire again a set of agents for her replacements. 19.

In Basay et.al v. Hacienda Consolacion3, 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 respondents4. 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?

3 4

G.R. No 175532 April 19, 2010 Ibid

(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 slain this present Complaint for being no basis under the attendant circumstances and applicable laws at hand. 20. If respondent made a statements that connotes termination of employment contract, the same was only made out of outburst, sudden and uncontrolled emotion, as a result of complainant’s arrogance. But at any rate, respondent had no intention to suspend, or terminate complainant’s employment contract, despite it has a valid grounds to do so. In Duterte v. Kingswood5 citing Veterans Phil. Scout Security Agency v. NLRC6, the Supreme Court made it clear that in order to consider an action or an utterance signifying a true “dismissal from employment”, the same should be coupled with intention to severe the employment contract. The said jurisprudence reads as follows: “Hence, the Court’s ruling in Veterans that the fact of dismissal must be evidenced by positive and overt acts indicating the intention to dismiss” Since the above complainant’s statement was uttered without any intention to truly dismiss complainant from her work, and only made out of uncontrolled emotion, there is no dismissal happened so to speak. Hence, to slain this case on sight must be done. 21. Actually, what is involve in this case is the so called “abandoned of work”, which can be decisively inferred from complainant’s subsequent overt act before and right after the altercation 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 5 6

G.R. No. 160325 October 4, 2007 June 28, 1989, 174 SCRA 347.

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 Commission7, 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 three (3) months from the moment she arrogantly left his post as agent of respondent. Worst, without telling respondent, she already fined a new job, in other company, without bothering to abide the existing contract she had with the respondent. In short, it was the respondent who breech her employment contract. 22. To be considered as “abandonment of work” the Supreme Court clearly ruled in Investigation Security Agency, Inc. v. Daquena8, which was also mentioned in the latest case of Protective Maximum Security v. Fuentes9 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 employeremployee 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.10the 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 7

351 Phil. 827, 835 (1998) G.R. No. 147473 March 30, 2004 9 G.R. No. 169303 February 11, 2015 10 G.R. No. 114695 July 23, 1998 8

overt acts. 23 Abandoning one's job means the deliberate, 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, banking on the last statement she made before the last time she had an altercation with the respondent. As to her clear intention to severe employee-employer relationship, which could be tantamount to abandonment, she made a statement before she left her workplace that she intended to secure a Certificate of Employment, which is an apparent portrayal of his intention to severe the standing employment contract. Further, the foregoing intention to abandon her work was strengthen by the fact that barely a week after the said untoward incident, she already find a new job from other company. 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. 23. As ruled by the Supreme Court in Mendoza v. HMS Credit11, 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.

11

G.R. No. 187232

April 17, 2013

It bears stressing that before complainant get wild due to refusal of her request to absent from work. She already made a statement that clearly entails intention to relinquish her employment contract with respondent i.e. “mabalik pa ako sa lunes para magkuha sang COE” 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, and such Certification can be utilized as a proof of his/her employment history that should be presented in his/her subsequent employer. 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. 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 Credit12, 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. Complainant is not entitled for Service Incentive Leave Pay as she does not rendered a required period to entitle such Monetary Claim.

24. To lend semblance that the monetary claim she sought as relief in the present Complaint is legitimate, complainant made it appears that she is entitled with the Service Incentive Leave Pay.

12

G.R. No. 187232

April 17, 2013

Complainant in the foregoing matter is wrong! As provided by Article 95 of Labor Code ART. 95. RIGHT TO SERVICE INCENTIVE LEAVE. – (a) Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay. Since Complainant rendered merely a service of less than (1) year, to be exact less than five (5) Months, even to include those training period, wherein she is not considered as yet an employee, she cannot in any way received such amount for wants of legal basis. 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. 26. 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 commit the same. Hence, the charge of illegal dismissal must fall for lack of factual basis. Service by Post Copies of this pleading cannot be personally served upon other parties because of distance and time constraints, which therefore render personal service and filing impractical and inefficient. RELIEF

WHEREFORE, it is most respectfully prayed that a Decision be rendered by this Honorable Office (i.) declaring that; a.) complainant was legally dismissed; b.) complainant is not entitled for separation pay, service 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 is likewise prayed. Iloilo City, 12 October 2015

MARIANIE C. TANATE PTR No. 3738164/ 1-14-2015/Iloilo City IBP Lifetime Mem. No. 0986661/6-24-2015/Iloilo Chapter Attorney’s Roll No. 63444 (Admitted to BAR in 2014; exempted until next compliance period)

MELCHOR C. VILLALOBOS PTR No. 0349017/01-05-15/Pasig City IBP No. LRN-0981340/01-05-2015/ Iloilo Chapter Attorney’s Roll No. 61783 (Admitted to BAR in 2013; exempted until next compliance period)