SAMPLE REPLY TO RESPONDENTS' POSITION PAPER

Republic of the Philippines Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION National Capital Region Quezon City ARVIN A. PASCUAL, Complainant, -

VERSUS -

NLRC NCR Case No. NCR-05-05071-15 LABOR ARBITER MARCIAL GALAHAD T. MAKASIAR

SITEL PHILIPPINES and/or MICHAEL LEE, ASWIN SUKUMAR, PHOEBE MONICA ARGANA REMIL CANDA, and AMOR REYES, Respondents.

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

REPLY (To Respondents’ Position Paper) COMPLAINANT, by himself and unto this Honorable Office, most respectfully submits this Reply to Respondents’ Position Paper, thus avers that: 1. Respondents, in paragraph #3, page #2 of their position paper alleged that - “Mr. Aswin Sukumar never passed any derogatory or racist remark to Complainant.” Complainant denies the foregoing allegation. Nowhere in the email of Respondent Sukumar sent to Complainant on 26 November 2014 (Annex 6 of Respondents’ position paper) that he ever denied casting aspersions against the reputation of Complainant on 21 November 2014 when he, together with Respondents Reyes and Argana, served the 5-day suspension notice. All that he said in his email reply was – “we do feel that you are wrongly interpreting things.”

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Additionally, paragraph #3, page #2 of Respondents’ position paper, further alleged – “If at all, it was the Complainant who is being unfair to Mr. Aswin Sukumar by casting dirt on the image and reputation of the Sitel Officer. He even conveniently alleges that he is being singled out by Mr. Aswin Sukumar from among all the Respondent Sitel’s thousands of employees.” Complainant denies the foregoing allegation. It has no knowledge or information sufficient to form a belief as to the truth and correctness of the foregoing allegations.

2. Respondents, in paragraph #4, page #2 of their position paper alleged that “Complainant’s allegations that he suffered several illnesses such as cervical disc

prolapse,

peripheral

neuropathy,

cervical

stenosis,

cervical

radiculopathy, myofascial pain syndrome, migraine headache, and acute pharyngitis

deserve

scant

consideration.

Those

illnesses

are

mere

fabrications of Complainant’s very creative mind. It is also noteworthy to point out that if indeed Complainant suffered such illnesses, he could have easily submitted a medical certificate to the management but none was ever presented.” Complainant could only wonder how could Respondents alleged that Complainant fabricated several illnesses such as cervical disc prolapse, peripheral neuropathy, cervical stenosis, cervical radiculopathy, myofascial pain syndrome, migraine headache, and acute pharyngitis.

Where did

Respondents get all these medical terms if Complainant truly did not submit any medical certificate? Whereas,

the

truth

is

that

Complainant

has

never

verbally

communicated to any of the Respondents that he (Complainant) is in extreme pain and unable to report for work due to the foregoing illnesses which Respondents alleged are but mere fabrications of Complainant’s very creative mind. Neither did Complainant communicate in writing to any of the Respondents that he (Complainant) could not report for work and merely feigned the foregoing illnesses to

justify

absences which Respondents

alleged are but mere fabrications of Complainant’s very creative mind. 2|Page

The truth is that the Respondents are the one with a very creative mind. They suppressed the truth that Complainant in fact submitted medical certificates duly verified by Respondent Sitel’s Clinic Team 1

All of these

verified medical certificates were copy circulated via electronic mail correspondence to Respondents Canda, Reyes, and Argana by Ms. Laureen T. Cabungcal – Respondent Sitel’s

Company Nurse. The vile goals

of

Respondents in suppressing the truth about the submission of verified medical certificates by Complainant are as follows: [a] augment their theory that Complainant is an absentee coach; and [b] justify their illegal withholding of Complainant’s salary. Clearly, all of the above-named Respondents have absolute knowledge that Complainant is in fact suffering from cervical disc prolapse, peripheral neuropathy,

cervical

stenosis,

cervical

radiculopathy,

myofascial

pain

syndrome, migraine headache, and acute pharyngitis as diagnosed by Respondent Sitel’s accredited physician and not mere fabrications of Complainant’s very creative mind as alleged by Respondents in their position paper. Also, it is noteworthy that Respondent Reyes, in an email dated 2 December 20142, even replied to Ms. Laureen T. Cabungcal – Respondent Sitel’s Company Nurse thanking the latter for providing her (Respondent Reyes)

with

copies

of

Complainant’s

verified

medical

certificates.

Additionally, Respondent Reyes, in the same email, even requested for a copy of the Complainant’s third medical certificate. Therefore, Respondents act of withholding Complainant’s salary for absences with duly verified medical certificate and worst accusing Complainant

of

fabricating illnesses such as cervical disc prolapse, peripheral neuropathy, cervical stenosis, cervical radiculopathy, myofascial pain syndrome, migraine headache, and acute pharyngitis despite having full knowledge about the 1[] Attached hereto as Annex “A” up to “Annex “A-11” and made integral parts hereof are copies of Complainant’s verified medical certificates duly copy circulated to Respondents 2[] Attached hereto as Annex “B” and made integral part hereof is a copy of Respondent Amor Reyes 2 December 2014 email to Ms. Laureen T. Cabungcal – Respondent Sitel’s Company Nurse 3|Page

existence and their possession of Complainant’s verified medical certificate are plainly abusive of the Respondents and oppressive to the Complainant. This is an explicit manifestation of palpable bad faith on the part of Respondents. In The Philippine American Life and General Insurance Co. vs. Angelita Gramaje, G.R. No. 156963 [November 11, 2004], the Supreme Court explained – “Bad faith has been defined as a state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for an ulterior purpose. It implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity.” In SHS Perforated Materials, Inc. vs. Manuel F. Diaz, G.R. No. 185814 [October 13, 2010], the Supreme Court ruled: “Management prerogative refers "to the right of an employer to regulate all aspects of employment, such as the freedom to prescribe work assignments, working methods, processes to be followed, regulation regarding transfer of employees, supervision of their work, lay-off and discipline, and dismissal and recall of work." Although management prerogative refers to "the right to regulate all aspects of employment," it cannot be understood to include the right to temporarily withhold salary/wages without the consent of the employee. To sanction such an interpretation would be contrary to Article 116 of the Labor Code (underscoring supplied), which provides: ART. 116. Withholding of wages and kickbacks prohibited. – It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the worker’s consent. Any withholding of an employee’s wages by an employer may only be allowed in the form of wage deductions under the circumstances provided in Article 113 of the Labor Code, as set forth below: ART. 113. Wage Deduction. – No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: (a) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;

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(b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and (c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor.

As correctly pointed out by the LA, "absent a showing that the withholding of complainant’s wages falls under the exceptions provided in Article 113, the withholding thereof is thus unlawful." In the same case, the Supreme Court also held that: “What made it impossible, unreasonable or unlikely for respondent to continue working for SHS was the unlawful withholding of his salary. For said reason, he was forced to resign (underscoring supplied). XX

XX

XX

What is significant is that the respondent prepared and served his resignation letter right after he was informed that his salary was being withheld. It would be absurd to require respondent to tolerate the unlawful withholding of his salary for a longer period before his employment can be considered as so impossible, unreasonable or unlikely as to constitute constructive dismissal. Even granting that the withholding of respondent’s salary on November 30, 2005, would not constitute an unlawful act, the continued refusal to release his salary after the payroll period was clearly unlawful (underscoring supplied). The petitioners’ claim that they prepared the check ready for pick-up cannot undo the unlawful withholding. It is worthy to note that in his resignation letter, respondent cited petitioners’ "illegal and unfair labor practice" as his cause for resignation. As correctly noted by the CA, respondent lost no time in submitting his resignation letter and eventually filing a complaint for illegal dismissal just a few days after his salary was withheld. These circumstances are inconsistent with voluntary resignation and bolster the finding of constructive dismissal.” (underscoring supplied)

3. Respondents, in paragraph #5, page #4 of their position paper alleged that “During Complainant’s first month as a coach on July 2014, it was discovered that Diosdado Remion, an agent in his team had been reporting to work without doing anything; not taking in calls; not doing any tasks

xxxx

Though not doing anything, this agent is still being paid by Respondent Sitel.” 5|Page

Complainant denies the foregoing allegation having no basis in fact. The truth is that Respondents Canda and Reyes are well informed that Respondent Sitel had been incurring pecuniary losses ever since Diosdado Remion was placed on off-the-phone status effective 14 May 2014 because he continuously receive salary without productive output. The electronic mail correspondence of Zaldy Española dated 29 June 2014 addressed to Shiela Morales – HR Generalist and direct report of Respondent Argana copy circulated to Respondents Canda and Reyes is patently evident of this fact.3 4. Respondents, in the same paragraph #5, page #4 of their position paper further alleged that - “The Operations Manager for the Comcast account then instructed Complainant to coordinate with Respondent Sitel’s Quality Team to review the complaint and to consult with Human Resources Department on how to proceed with Mr. Remion’s case. Despite these very clear instructions, Complainant opted not to act on this.” Complainant denies the foregoing allegations having no basis in fact. The truth is that Complainant, on his own volition, coordinated with the Comcast Quality Team as evidenced by an electronic mail correspondence dated 21 July 2014.4 He requested for a transcription of the call between Remion and the customer who accused the latter of exhibiting rude behavior on 13 May 2014. But the Comcast Quality Team failed to provide him with the transcript of call. The more than sixty (60) days of inaction by Respondents rendered the retrieval of the call impossible. The transcript of call is a condition precedent in the issuance of CARE Form 1 (Notice to Explain).

Briefly stated, without the transcript of call, there is no case

against Remion.

5. Respondents, in paragraph #1, page #5 of their position paper, alleged that “For the second time, Complainant did not provide any explanation. Refusing again to answer any of the allegations presented to him, he submitted

3[] Attached hereto as Annex “C” and made an integral part hereof is a copy of the electronic mail correspondence of Zaldy Española, coach of Diosdado Remion, dated 29 June 2014 4[] Attached hereto as Annex “D” and made an integral hereof is a copy of the electronic mail correspondence of Complainant Pascual dated 21 July 2014 6|Page

another letter, continuing to demand for a written statement with sufficient definiteness or particularity.” Complainant admits that in fact he submitted another letter. Aforesaid letter has the subject:

Reply to Revision #2 Notice to Explain (NTE) Dated 4

November 2014 (Annex “H” up to Annex “H-5” of Complainant’s Position Paper). It was sent to Respondent Argana via electronic mail on 9 November 2014 at 8:21 A.M. Complainant, however, denies that he refused to answer and refused to provide any explanation. The contents of Annex “H” up to Annex “H-5” of Complainant’s position paper will lend support to a conclusion that this allegation of Respondents is baseless and devoid of truth.

6. Respondents, in paragraph #2, page #5 of their position paper, alleged that “On November 11, 2014, an administrative hearing was scheduled. Complainant did not attend.

He only sent the HR Manager an email

reiterating his demands in the letter he submitted. Again, Complainant was insistent that he be provided with a clearer discussion on his infractions.” Complainant

admits

that

in

fact

he

sent

an

electronic

mail

correspondence to Respondent Argana pertaining to the 10 November 2014 administrative hearing. Aforesaid correspondence has the subject: Reply to Admin Hearing (Annex “I” up to Annex “I-3” of Complainant’s Position Paper). It was sent to Respondent Argana seventeen (17) hours before the 11:30 administrative hearing. The contents of Annex “I” up to Annex “I-3” undeniably established the fact that it was the inaction of Respondent Argana that rendered Complainant unable to participate in the administrative hearing. Additionally, Complainant was on medical leave on 10 November 2014 supported by a verified medical certificate. For this reason, he cannot be compelled to be in the workplace.

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In Dr. Danilo T. Ting and Mrs. Elena Ting VS. Court of Appeals, G.R. No. 146174, July 12, 2006, the Supreme Court said – “Indeed, as keenly pointed out by the Executive Labor Arbiter, and seconded by the appellate court, sickness justifies an employee from being absent or leaving his work. To demand from private respondent to remain in “F/B Liza V” despite the excruciating physical pain that he was suffering on the day of 11 June 1998, would be to ignore that labor is a human capital subject to the frailties of the physical body (underscoring supplied).”

7. Respondents, in paragraph #3, page #5 of their position paper alleged that “On the contrary, though how complex Complainant would make it appear in his several emails to management of Sitel, the infraction of Complainant can be simply defined as gross negligence, i.e. his wilful failure to act on the instruction of the Operations Manager to refer the situation of Mr. Remion to the Human Resources Department for proper action.” Complainant denies the foregoing allegation. It has no knowledge or information sufficient to form a belief as to the truth and correctness of the foregoing allegations.

8.

Respondents, in paragraph #4, page #5 of their position paper

alleged that “Though the infraction of Complainant was a very serious offense that would warrant his termination, management recognized the fact that the root of the problem was not of Complainant’s doing but of another supervisor who had long resigned from Sitel. Nevertheless, management still found fault by way of omission on the part of Complainant warranting his suspension.” Complainant denies any omission on his part. Hence, his suspension has no basis in fact and in law. The real parties who are grossly negligent are the Respondents themselves. Their combined inaction is the proximate and immediate cause why Sitel sustained pecuniary losses occasioned by Remion’s continued employment. For had anyone among the Respondents been faithful in the performance of their obligations as required by Sitel Code of Conduct, as follows:

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I. FUNDAMENTAL RESPONSIBILITIES XX

XX

XX

2. The supervisors and Operation/Department Managers shall be principally responsible for initiating actions as well as reporting violation of Company Rules and Regulations within 72 hours from the time of discovery or knowledge of the offense. Serious offenses, which are those punishable by dismissal, must be acted upon within forty eight (48) hours (emphasis supplied). then even before 1 July 2014 the Remion case is already closed or settled. Unfortunately, all of them had been remiss in the performance of their duties causing the Remion case to drag on and remain unresolved until such time Complainant joined Comcast CSG account as Coach (Supervisor).

9. Respondents, in paragraph #1, page #6 of their position paper alleged that “At the time the Decision was handed down, Complainant was present with Sitel officer, Aswin Sukumar. Aswin joined to personally talk to Complainant and explained to him that if he has any concern about the due process and if he thought the decision was unfair, Complainant could talk to him so that further discussion could be had with him. Complainant refused to speak up and said that his lawyer instructed him to say anything at all.”

Complainant

admits

that

Respondent

Sukumar,

together

with

Respondents Reyes and Argana, served Complainant a Notice of 5-Day Suspension on 21 November 2014. However, Complainant denies the rest of the foregoing allegations of Respondents having no basis in fact.

10. Respondents, in paragraph #2, page #6 of their position paper alleged that “On November 22, 2014, after the issuance of the Notice of Decision for the 5-day suspension, Complainant’s Operations Manager (Respondent Reyes) sent him a text message asking if he was reporting for work on that day, then out of nowhere, Complainant accused Aswin Sukumar of being a racist,

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he even stated that as a Filipino, I am totally devastated emotionally and psychologically consequent to the kind of image I was made to appear by a non-Filipino right in our homeland.

Deeply sorry but I can’t muster the

emotional strength to be in the same workplace today where my reputation was injured.” Complainant admits that he was unable to report for work on 22 November 2014 because he was so depressed (a) his right to due process was trampled upon, and (b) aspersions were casted against his person (reputation) during the 21 November 2014 service of Notice of Suspension. Furthermore, Complainant admits that he sent an electronic mail correspondence to Respondent Reyes (Annex “O” of Complainant’s Position Paper) which reads as follows: “As a human being and most importantly being a Filipino, I am totally devastated (emotionally and psychologically) consequent to the kind of image I was to appear by a foreign national before fellow Filipinos right in our own homeland on the early morning of November 21, 2014. I am deeply sorry, but I cannot muster yet the emotional strength to be in the same workplace today where my reputation was injured.” 11. Respondents, in pages #6 and #7 of their position paper reproduced the contents of an electronic mail correspondence sent by Respondent Sukumar to Complainant on 26 November 2014. Complainant

admits

that

he

received

the

aforesaid

email

of

Respondent Sukumar which is actually a reply to Complainant’s email (Annex “P” up to Annex “P-1” of Complainant’s position paper) sent on 25 November 2014. Respondent Sukumar’s reply was obviously sugar coated to dampen the impact of the aspersions he verbally casted against Complainant on 21 November 2014.

It is most logical that Sukumar will never put in writing

anything that will cause him to be branded as truly “anti-Filipino” and will reinforced the contents of Complainant’s 25 November 2014 email. The events that transpired during the service of 5-day suspension at the 31st floor conference room of Respondent Sitel on the early morning of 21 10 | P a g e

November 2014 and the tenor of the words and phrases by which Respondent Sukumar couched his 25 November 2014 reply email are two separate but inter-locking events. The first being the real scenario (vividly described in Complainant’s email dated 25 November 2014 [Annex “P” up to Annex “P-1” of Complainant’s position paper] and 30 November 2014 [Annex “Q” up to Annex “Q-2” of Complainant’s position paper]) that transpired when three managers of Sitel in the persons of Respondents Sukumar, Reyes, and Argana bonded together solely for the purpose of serving the 5day Notice of Suspension to Complainant.

The second is the response of

Respondent Sukumar to Complainant’s email wherein he (Complainant) narrated the deplorable treatment he received from Respondent Sukumar.

12. Respondents, in paragraph #4, page #7 of their position paper alleged that “On December 12, 2014, Complainant asked his manager to receive a similar letter dated December 9, 2014 where Complainant expressed his intention to resign. His manager, however, did not receive it as it was already December 12, 2014 when the letter was tendered to her. Thus, Complainant was asked to update the date on the letter. Complainant said that he will make a phone call to his lawyer first but he never returned to have the letter received by his manager. On December 18, 2014, Complainant tendered a resignation letter to management effective that same date which was formally accepted by management on December 19, 2014. Complainant denies the foregoing allegations. The facts supported by documentary evidence are as follows: [a] Complainant tendered his resignation letter, albeit against his will, via electronic mail to Respondent Lee on 8 December 2014. [b]

Complainant personally met Respondent Reyes on 11 December

2014 at the Comcast CSG production floor and provided her with a copy of his

resignation

letter.

Respondent

Reyes

receive

the

notice

from

Complainant, opened the envelope containing the notice, and thereafter read it. 11 | P a g e

[c]

When Complainant requested Respondent Reyes to kindly

acknowledge in writing her copy of the notice by affixing her signature thereon, Respondent Reyes refused to do so without adducing any explanation. [d] Helpless as Respondent Reyes did not grant her signature despite Complainant’s pleadings exacerbated by a deep concern that Respondent Reyes will impute on him (Complainant) an offense of job abandonment, Complainant resorted to the following courses of action: [d.1] Sent another copy to Respondent Reyes via electronic mail correspondence on the following day, 12 December 2014 at

9:24

A.M.

(Annex

“U”

up

to

Annex

“U-3”

of

Complainant’s position paper); and [d.2]

Printed another copy of the same notice and sent it to Respondent Reyes via registered mail with return card on 15 December 2014 (Annex “V” up to Annex “V-3” of Complainant’s position paper).

13. Respondents, in pages #8 and #9 of their position paper, reproduced an alleged Complainant’s Team Performance vs. Goal result as well as Focus Group Discussion (FGD) result alleged to have been conducted on 13 November 2014. Complainant has no knowledge or information sufficient to form a belief as to the truth or correctness of these results (Team Performance vs. Goal and FGD). The truth is that there was never an occasion whereby Respondent Reyes divulge these alleged results (Team Performance vs. Goal and FGD) with Complainant. If these results have basis in fact and Respondent Reyes is truly fair to Complainant as what she asserts to be, then she should have discuss these results to Complainant. This is what effective supervision is all about.

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This introduction of alleged results (Team Performance vs. Goal and FGD) is but a desperate attempt by Respondents to prove that Complainant is so inept in the performance of his duties and responsibilities as coach. It is rather peculiar, though, that the alleged ineptness of Complainant did not prompt Respondents to discuss these results to Complainant considering that the solemnity of Complainant's alleged non-performance was so immense. It bears stressing that Complainant, prior to his illegal dismissal on 8 December 2014, has already rendered eight (8) long and loyal service with Respondent Sitel. He was promoted twice: from agent to trainer/certified coach and then to coach/supervisor assigned to the Comcast Customer Service Group. Shortly after Complainant’s transfer to Comcast CSG, his worst nightmare began. He (Complainant) was made a scapegoat by Respondent Sitel’s managers like Glenn Kuan including Respondents Argana, Reyes, and Canda. Respondents and Glenn Kuan, in cahoot with one another, framed-up Complainant for him to be blamed solely for the continued employment of Diosdado Jayson Remion (Agent - Comcast CSG) even after an alleged violation of Comcast Zero Tolerance Policy on or about 13 May 2014. The almost two months of agony suffered by Complainant resulting from sustained and concerted machinations by Respondents in order that Complainant could be blamed and held solely responsible for the continued employment of Remion induced in Complainant

an immense sense of

insecurity with his job – the threat of immediate termination from work, if not aggression. This is a heavy burden carried on Complainant’s shoulder which resulted to a resolution on his part to protect himself from uncertainty. Thus, Complainant felt compelled to give up his employment.

14. Respondents, in pages #9 of their position paper, alleged that “During the mediation, SENa Mediator Ma. Zenaida Nicolas consistently advised Complainant to speak up and air out his concerns to reach an amicable settlement between the parties.

However, Complainant neither

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spoke nor uttered even a single word as he just pointed to his adviser who was allegedly an HR practitioner who did all the talking.” Complainant denies the foregoing allegation. The truth is that during the 1st conciliation conference on 7 January 2015, Respondent’s legal counsel, who arrived one hour late, requested for a re-scheduling of the conciliation conference on 21 January 2015 adducing reason that she has not studied the documents provided her by Respondent Sitel.

On the 2nd conciliation conference last 21 January 2015, Complainant was immediately informed by Sitel’s legal counsel that his request for reinstatement/transfer to another account was denied.

Thus, effectively

shutting the door for any further conciliation meeting. Hence, the parties were ordered to simultaneously file their position papers.

15. Respondents, in paragraph #1, page #11 of their position paper for the nth time re-stated their fantastically imagined sheer fabrication-by-theComplainant theory.

Respondents, in their vain attempt to mislead the

Honorable Labor Arbiter stated that - “These alleged discrimination and singling out were neither substantiated nor proven by the Complainant in the mandatory conferences. Such are all sheer fabrications of the Complainant.” Complainant denies the foregoing allegation. The truth is that there has never been an instance during any of the mandatory conferences before the Honorable Labor Arbiter that issues of discrimination and singling out alleged to be alluded to by Complainant against the Respondents have ever been placed on the table.

But the irrefutable fact is that during the

mandatory conference before the Honorable Labor Arbiter on 9 June 2015, Respondents, thru counsel, were very emphatic in their reply to the query of the Honorable Labor Arbiter if there is still a way to amicably settle the controversy – “Wala na po!” Once again, Respondents shut the door. Thus, the parties in the instant case were ordered to submit their respective position papers on 3 August 2015. 16. Respondents, in paragraph #2, page #11 of their position paper, alleged that “If any, the only disciplinary action Complainant was ever

14 | P a g e

subjected to was the five-day suspension for his omission when it appeared that Complainant took no action about his unproductive agent’s situation since July 2014 and simply allowed the agent to report for work every day without taking calls. The penalty of suspension is clearly warranted under the circumstances.” Complainant denies any omission on his part. Hence, his suspension and withholding of salaries have no basis in fact and in law. The real parties who are grossly negligent are the Respondents themselves. Their inaction is the proximate and immediate cause why Sitel sustained pecuniary losses occasioned by Remion’s continued employment. For had anyone among the Respondents been faithful in the performance of their obligations as required by Sitel Code of Conduct, as follows: I. FUNDAMENTAL RESPONSIBILITIES XX

XX

XX

2. The supervisors and Operation/Department Managers shall be principally responsible for initiating actions as well as reporting violation of Company Rules and Regulations within 72 hours from the time of discovery or knowledge of the offense. Serious offenses, which are those punishable by dismissal, must be acted upon within forty eight (48) hours (emphasis supplied). then even before 1 July 2014 the Remion case is already closed or settled. Unfortunately,

all

of

them

(Respondents)

had

been

remiss

in

the

performance of their duties causing the Remion case to drag on and remain unresolved until such time Complainant joined Comcast CSG account as Coach (Supervisor).

17.

Respondents, in page #12 of their position paper, alleged that

Complainant “jump the gun” on Respondents. Complainant denies the foregoing allegation. The truth is that it was the high ranking officials of Sitel in the persons of Respondents Sukumar, Canda, Reyes, and Argana together with former Operations Manager Kuan who pounced on Complainant. These high ranking officials of

15 | P a g e

Sitel imposed misplaced "superiority" over the person of the Complainant. In cahoots with one another, Respondents framed-up Complainant in order to foreclose even the slightest opportunity of the Complainant to exculpate himself from liability and be held as the party solely liable for the Diosdado Remion fiasco.

18. Respondents, in paragraph #5 page #14 of their position paper, alleged that – “If he felt aggrieved by the decision of management, he could have appealed to management pursuant to the grievance procedure.” Complainant denies the foregoing allegation.

The truth is that

Complainant filed a grievance in relation to the five – day suspension imposed on him by Respondents. Complainant sent his grievance notice via an electronic mail correspondence first on 25 November 2014 (Annex “P” up to Annex “-1” of Complainant’s position paper) with a follow-up on 30 November 2014 (Annex “Q” up to Annex “Q-2” of Complainant’s position paper) to (but said grievance notice was treated with cold disdain by) Respondent Sukumar.

19.

Respondents, also in paragraph #5, page #14 of their position

paper, alleged that – “Instead, he did not air his concerns in the meeting with Aswin Sukumar and only kept quiet for the entire duration of the meeting insisting that he was advised by his lawyer not to speak at all.” Complainant admits the allegation above only with regards to the conduct of a meeting; provided, that such meeting was the one held at the 31st floor conference room of Respondent Sitel on 21 November 2014. bears

stressing

that

there

has

Complainant had an opportunity

never

been

any

occasion

It

whereby

to have a meeting with Respondent

Sukumar on one-on-one basis. This meeting, which was called by three senior officials of Respondent Sitel in the persons of Respondents Sukumar, Reyes, and Argana, is solely for the purpose of serving to Complainant the five-day suspension notice.

16 | P a g e

Below is an excerpt from Annex “Q” and Annex “Q-1” of Complainant’s position paper.

Its contents will succinctly reveal why Complainant was

constrained to seal his lips, as follows: “ Surprisingly, seven days after my above email or on the early morning of 21 November 2014, I was given verbal instruction by Ms. Amor Reyes – Operations Manager to leave the production floor and proceed forthwith at the 31st floor. I was dumbfounded with the instruction. I was given not a scant of information why I need to proceed at the 31st floor. I was fearful and terribly apprehensive of what may happen to me. My heart was pounding as I trailed Ms. Reyes from the production floor, into and out of the elevator, and finally into a conference room. Inside the conference room are two more management officials comfortably seated and obviously waiting for our arrival. The management officials are Ms. Phoebe Monica Argana and You. Being in a meeting, where I never expected that I will be under the searching look and close watch of three management officials, I was like a fish out of the water. I felt like a hare scampering for safety having been hotly pursued.” “During this 21 November 2014 meeting, and compounding the humiliation that I was made to suffer and vividly described in my 25 November 2014 email I sent you, my intelligence was insulted as well when I was criticized and faulted because I sought the assistance of counsel in order to safeguard my constitutional guarantee against deprivation of proprietary rights to livelihood and employment. The criticism casted on me cuts deep into my reputation.”

20. Respondents, in paragraph #3, page #15 of their position paper alleged that - “Losses in revenue at the rate of almost Php100,000.00 a month suffered by Sitel due to an inactive employee is not a joking matter. This notwithstanding, it is also undisputable fact that Complainant allowed Mr. Remion to just sit around and do nothing for four (4) months and for Sitel to pay the latter his salary totalling Php70,578.09.” Respondents believed that they are INFALLIBLE being managers and senior manager of Respondent Sitel. This belief of INFALLIBILITY is supported by Respondents’ own admission (page #3 of Sitel CARE Form 2 [Notice of Decision Imposing 5-Day Suspension against Complainant]) and re-stated in page #16 of Respondents’ Position Paper, quote: “Management, however, recognizes the fact that Diosdado Remion has been off-the-phones since May, and prior to your appointment as a coach. It is unfortunate that the employees who were initially responsible for insuring that proper action was taken on the agent’s case have left the company and that the responsibility was inevitably transferred to you.” 17 | P a g e

In other words, Respondents would like to deliver a message that managers and senior managers are shielded from any liability despite having absolute knowledge on the details and status of a customer complaint against an employee such as the alleged violation of Comcast Zero Tolerance Policy by Diosdado Remion. Only coaches/supervisors must be subjected to disciplinary actions. This is a patent case of discrimination. In The Philippine American Life and General Insurance Co. vs. Angelita Gramaje, G.R. No. 156963 [November 11, 2004], the Supreme Court explained that – “Discrimination is the unequal treatment of employees, which is proscribed as an unfair labor practice by Art. 248(e) of the Labor Code. It is the failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored.” Additionally, the clear import of the above-quoted contents of Sitel CARE Form 2 above is that the investigation of an infraction will inevitably be put to a halt the moment the supervisor/coach leave Respondent Sitel even though the company stands to incur financial losses and worst “stands to lose its business on account of any infraction made by its employees that could cause the clients to lose their trust and confidence” (phrase in quotation marks lifted from paragraph #3, page #4 of Respondents’ Position Paper). Be that as it may, Annex “C” and Annex “D” hereof clearly show that all electronic mail correspondences pertaining to Remion’s alleged violation of Comcast Zero Tolerance Policy commencing on 14 May 2014 were copy circulated to Respondents.

So that they could not claim innocence that

Remion has been receiving compensation effective 14 May 2014 despite on off-the-phone status.

Respondents,

most especially Respondent Canda,

could not claim innocence that his Quality Team was unable to prepare a transcript of call which is condition precedent by Human Resources Department in the preparation of Sitel CARE form 1.

Hence, a notice to

explain (NTE) could not be served to Remion.

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Therefore, the inescapable conclusion is that the real parties who are grossly negligent are the Respondents themselves who are occupying the ranks of either manager or senior manager in Respondent Sitel. It is not the hapless coach (Complainant Pascual) whom Respondents, in cahoots with one another, tried in futility to be held liable solely and ultimately.

Logic

dictates that if the combined efforts of Respondents failed to produce the desired result of getting rid of Remion, how could a lowly coach like Complainant, who is barely new in the Comcast account, could be able to accomplish what Respondents are unable to accomplish.

21. Respondents, in paragraph #4, page #15 of their position paper alleged that - “As can be culled from the facts and evidence on record, management had a valid cause to impose the penalty of suspension on account of Complainant’s failure to report his agent’s fraudulent acts.” Complainant denies the foregoing allegation. In the first place, there is nothing on record that will show Remion ever committed a fraudulent act. Hence, Respondents have no basis in fact and in law to impute an offense against Complainant

of failure to report an agent’s fraudulent act.

Such

being the case, Complainant’s suspension and withholding of salaries are tainted with illegality.

22.

Respondents, in the same paragraph #4, page #15 of their

position paper alleged that - “The severity of Complainant’s inaction warranted his dismissal.

Hence, the 5-day suspension is clearly just and

within the bounds of reasonableness.” Facts and evidence on hand support an incontrovertible conclusion that Respondents committed serious violation of Complainant’s statutory and constitutional right to due process through a string of nefarious acts discussed in Complainant’s position paper.

Ultimately rendering the

imposition of 5-day suspension against and

withholding the salary of

Complainant legally infirmed. 23. Respondents, in paragraph #6, page #17 of their position paper alleged that - “The fact thus remains is that Complainant was an absentee 19 | P a g e

coach as assessed by his agents. His repeated failure to report Mr. Remion’s inactive status to management is a clear indication that Complainant was not doing his job, or at the very least, he was not doing it properly.” Complainant denies the foregoing allegation.

The truth is that

Complainant is not an absentee coach. Respondent Sitel will never promote Complainant twice in his (Complainant) eight long and loyal years of service in the company if he is inept in the performance of his duties and obligations. It is worthy to note that prior to Complainant’s transfer to the Comcast CSG account on 1 July 2014, he (Complainant) was assigned in Respondent Sitel’s Virgin Media Account for six years, more or less. Records of Respondent Sitel will reveal that during the six-year period Complainant was assigned in the Virgin Media account, his (Complainant) sick leave benefit is intact and always converted into its cash equivalent.

It was only after

Complainant was transferred to the Comcast CSG account that his health drastically deteriorated due to the harsh, hostile, and unfavorable conditions set for him (Complainant) by Respondents. Also, after Complainant acquired knowledge from [former] Operations Manager Kuan about the ploy to oust him at the behest of Respondent Canda (Respondent Sitel Sr. Operations Manager – Comcast CST and Head of Comcast Quality Team). Consequently, Complainant was constrained to make use of his annual sick leave benefit credits. In Dr. Danilo T. Ting and Mrs. Elena Ting VS. Court of Appeals, G.R. No. 146174, July 12, 2006, the Supreme Court said – “Indeed, as keenly pointed out by the Executive Labor Arbiter, and seconded by the appellate court, sickness justifies an employee from being absent or leaving his work. To demand from private respondent to remain in “F/B Liza V” despite the excruciating physical pain that he was suffering on the day of 11 June 1998, would be to ignore that labor is a human capital subject to the frailties of the physical body.”

24.

Respondents, in

paragraph #7, pages #17 and #18 of their

position paper further alleged that - “Notwithstanding the above justification for dismissal, herein Respondents imposed only the penalty of a five-day suspension for Complainant’s infractions.

This goes to show that the

company’s policies which regulate their employees’ attendance are not only 20 | P a g e

reasonable and just; they also reflect the Respondents’ compassion and understanding for their employees’ plight.” There is no reason for Complainant to be grateful that the penalty of termination of employment was reconsidered and commuted to 5-day suspension only.

The "suspension" was not because of “Respondents’

compassion and understanding for their employees’ plight.” It was a mere after thought if not a clever subterfuge to mask Respondent’s ultimate goal to rid itself of Complainant which was obviously already decided upon. They (Respondents) realized in the end that they cannot implement with semblance of legality the instruction of Respondent Canda “to eliminate” Complainant by seeking cover under the pertinent provisions of The Labor Code of the Philippines on terminating employer-employee relationship by means of just cause. The recourse by Complainant to all means necessary within the limits of the law to safeguard his (Complainant) constitutional right to security of tenure prevented Respondents to do away with Complainant. The chronicle of events from 15 October 2015 (the day Complainant was first served a Notice to Explain [NTE] and bluntly advised by Kuan – “hearing yan for termination, unahan mo na” ) upto and until 16 December 2014 (the day Complainant pleaded in vain to Respondent Argana to release his (Complainant) withheld salaries betrays a sinister effort by Respondents to do away with Complainant.

25. Complainant cannot be faulted if he relentlessly protected his right against unjust deprivation of property right as well as trespass against his reputation by Respondents. It is not amiss to state that Complainant is but a “David facing not one, but a group of Goliaths.” Clearly, all of Complainant’s courses of actions, legitimately exercise, to parry the blows of the Goliaths is axiomatic that the instinct for self-preservation is universal throughout the animal kingdom. At the very onset of this case, specifically on 18 October 2014 when former Operations Manager Kuan suddenly withdrew CARE Form 1 (Notice to Explain[NTE]) that he first served to Complainant on 15 October 2014 and immediately after the withdrawal, Kuan served Complainant a revised CARE Form 1 (Notice to Explain [NTE]) antedated 9 October 2014 21 | P a g e

(referred to as Revised and Antedated NTE in Complainant’s position position) coupled with an illegal and blunt suggestion - “Hearing yan for termination. Unahan mo na.”; Complainant had been very transparent in his dealings with Respondents. Complainant tirelessly communicated with Respondents.

Upon the other hand, Respondents treated everything with

cold disdain.

They simply shrugged their shoulders down to all of

Complainant’s communication efforts. Quite relevantly, the case of The Philippine American Life and General Insurance Co. vs. Angelita Gramaje, G.R. No. 156963 [November 11, 2004] is instructive, to wit: “Fifth, as clearly pointed out by respondent, she formally rejected the offer of P250,000 for her to leave the company. The refutation was done in writing and duly received by the three highest offices of petitioner, namely: the Office of the President; the Office of the Executive Vice-President; and the Office of the Senior Vice-President and Head of Human Resources. Incongruously, taking into consideration the said contents of the formal letter of rejection, there was no response whatsoever from the aforesaid offices (underscoring supplied). It may be true, as stated by petitioner, that "the alleged memorandum pertaining to the meeting held on 18 November 1998 on the alleged P250,000 settlement offer was prepared by respondent alone without any participation from the company," but the fact remains that no formal response was ever made by any of the three offices which received the same. The contents thereof, if untrue, would have elicited a stark and strong reaction from any of the three offices (underscoring supplied).”

26. Respondents like a broken music record of the old days incessantly pressed on their allegation that former Operations Manager Glenn Kuan [who was hired by Respondent Sitel on 15 June 2014, but for unknown reason suddenly stopped to report for work commencing on 1 November 2014] allegedly instructed Complainant to refer the alleged violation of Comcast Zero Tolerance Policy by Diosdado Remion and seek assistance from the Human Resources Department and the Quality Team are nothing but hearsay, uncorroborated, and untrustworthy. It deserves scant consideration because Respondents are unable to proffer any evidentiary support of this alleged instruction of Kuan. Indeed, the production or suppression of the following documents by Respondents open the avenues for speculations and suspicions:

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[a] Result of Focus Group Discussion (FGD) alleged to have been conducted

on

13

November

2014.

The

alleged

respondents/interviewees are agents of Complainant himself who, without a tinge of doubt, will posture protectiveness of Respondents’ interest for fear of retaliation and backlash; [b] Team Performance vs. Goal result which, similar to the FGD result, was never discussed with or divulged to Complainant by Respondent Reyes; [c]

Formal acceptance of resignation letter of Complainant on 18

December

2014

by

Respondent

Reyes

[marked

Annex

“8”

in

Respondents’ position paper]. Obviously, it would be preposterous for Complainant to send his resignation letter to Respondent Reyes via two modes [please refer to paragraph #12 hereof] if Respondent Reyes truly and formally accepted the resignation letter

allegedly hand

carried by Complainant on 18 December 2014; [d] Suppression of Complainant’s verified medical certificates for the purpose of illegally withholding Complainant salaries; and [e]

Suppression of documents marked Annex “C” and “Annex “D”

hereof. It is here that the following, the teaching from De Leon vs. Juyco, [G.R. No. L46153, June 5, 1942], citing I Wigmore on Evidence, sec. 277, pp. 566-568, finds relevancy, viz: "A party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suspension of evidence by bribery or spoliation, and all similar conduct, is receivable against him as an indication of his consciousness that his case is weak or unfounded, and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit."

WHEREFORE, premises considered, it is hereby respectfully prayed that the foregoing Reply to Respondents’ Position Paper be given due credence and consideration and the reliefs prayed for in the Complaint and Complainant’s Reply be granted.

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Finally, Complainant respectfully prays for such and other reliefs as may be deemed just and equitable under the premises.

Quezon City, Metro Manila, August 17, 2015.

ARVIN A. PASCUAL Complainant Republic of the Philippines) : s.s Quezon City )

VERIFICATION I, Complainant in the instant case, under oath, depose and say: 1. That I have caused the preparation of the foregoing Reply to Respondents’ position paper ; 2. That I have read and understood the contents thereof; and 3. That the allegations therein are correct and true to the best of my own knowledge and belief and based on authentic records.

ARVIN A. PASCUAL Complainant/Affiant

SUBSCRIBED AND SWORN to before me, this 17th day of August 2015, in Quezon City, Metro Manila, Affiant exhibiting to me his Driver’s License No. 2-93-203385 (Expiration Date on July 20, 2016) issued by the Land Transportation Office.

____________________ Administering Officer

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Copy furnished:

ATTY. JOSE GERARDO F.C. VILLACARLOS INES & VILLACARLOS LAW OFFICES Madrigal Business Park, Alabang Muntinlupa City

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