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VII Cebu City
JEOMON SANCHEZ, Complainant
NLRC RAB-VII CASE NO. 06-0889-12 FOR: Illegal Dismissal, Money Claims, Back Wages, Damages, and Attorney’s Fees.
-versusRMG MANAGEMENT CORPORATION (JULIE’S BAKESHOP) Respondent x---------------------------------x POSITION PAPER FOR THE COMPLAINANT
Complainant JEOMON SANCHEZ, through the undersigned counsel, unto this Honorable Labor Arbiter, most respectfully submits his position paper and further alleges:
PREFATORY STATEMENT This is a case of illegal dismissal and non-payment of salary differential, overtime pay differential, night shift differential, holiday pay differential, service incentive leave, backwages, damages and Attorney’s Fees filed by JOEMON SANCHEZ against RMG CORPORATION (JULIE’S BAKESHOP). The case had undergone the two mandatory mediation and conciliation conference but both parties did not agree on an amicable settlement. In view of such failed mediation and conciliation, the Honorable Labor Arbiter ordered both parties to submit their respective position papers. Hence, this position paper for the Complainant JEOMON SANCHEZ.
1. Complainant JEOMON SANCHEZ (SANCHEZ for brevity) is a Filipino, of legal age,
married, and a resident of Cabantan St., Brgy. Luz, Cebu City, Philippines. He may be served with notices and processes of the Honorable Office through the undersigned counsel at Mendoza Law Office, Suite 3E, JL Bldg., Don Jose Avila St., Capitol Site, Cebu City, Philippines.
2. Respondent RMG MANAGEMENT CORPORATION (RMG for brevity) is engaged in a
Bakeshop business that owns and/or manages a chain of JULIE’S BAKESHOPS in the Philippines and is a corporation organized and existing under the laws of the Philippines. Its
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main office is located at Ouano Road, North Reclamation Area, Mandaue City, Cebu, Philippines. STATEMENT OF FACTS
3. Complainant SANCHEZ was employed by respondent RMG as a Baker in one of its branches
of JULIE’S BAKESHOP located at Aznar Road, Urgello 1, Cebu City, Philippines on September 8, 2008. The machine copy of his Company Identification Card (ID) issued by RMG Corporation is attached herewith as ANNEX “A” and made an integral part hereof;
4. He was initially hired as Day Shift Baker until March 8, 2009;
5. Starting March 9, 2009 until his suspension day on May 10, 2012, he was suffered to work
perpetually as a Night Shift Baker with a shift schedule from Twelve (12) Midnight to Ten (10) o’clock in the morning or a Ten (10) hour work shift despite his numerous demands to be transferred to Day Shift;
6. From the time he was hired until his suspension, complainant was assigned to different branches, namely: South Bus Terminal Branch, Urgellio 1 Branch, and eventually in Aznar Branch where he was terminated;
7. Further, from the day he was hired on September 8, 2008 until his suspension on May 10,
2012, Sanchez suffered to work for seven days a week without any rest day because the Company did not allow him to take a day-off;
8. Furthermore, in his entire work shift, he had only maximum of Ten (10) minutes to take his
meal because of the demands of his work.
9. Moreover, all throughout his employment, he only enjoyed the following holidays: New Year’s
Day, All Saint’s Day, Labor Day, Independence Day, National Heroes Day, Eidul Fit’r and Christmas Day and nothing else;
10. From September 8, 2008 until April 8, 2009, SANCHEZ faithfully attended his work as a
baker but was paid only One Hundred Thirty Pesos (P130.00) per day of work for seven days a week when the minimum wage at that time was Two Hundred Sixty Seven Pesos (P267.00) 1 per eight (8) hours of work;
WAGE ORDER NO. ROVII-14. Effective June 16, 2008
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2009. only the night shift had the opportunity to steal money for the sole reason (non-sequitor) that they worked at night time. Complainant once again got an increased wage from October 9. from April 9. Still this was below the minimum wage because at this time the minimum was Three Hundred Five Pesos (P305. Complainant enjoyed his last increase from October 9. that was still below the minimum wage law as the minimum wage at that time was at Two Hundred Sixty Seven Pesos (P267.00) per day but still the same was below the minimum wage because the minimum at that time was set already at Two Hundred Eighty Five Pesos (P285. 2011 until his suspension on May 10. WAGE ORDER NO. 2011 and was paid One Hundred Seventy Pesos (P170. 2012 and attached herewith as ANNEXES “C” and “D” respectively.11. to also prove the allegations in paragraph twelve (12). according to the management and day shift personnel. 15. Nevertheless. he got an increase and was paid One Hundred Fifty Pesos (P150. he was able to secure a photocopy of his payslip and daily time record from April 29 to May 9. 17. 2012. 12.00) per day.00)4. 2012 as his wage was Two Hundred Pesos (P200. are attached herewith as ANNEXES “B” and “B-1” because he was not given any copies of his payslips and daily time record and the same payslips and daily time record were written in pencils. 2011. 13. ROVII-16 a/ Effective: September 22. ROVII-15/a Effective: September 1. Wage Order No. specifically paragraphs five (5) to twelve (12). The management always reprimanded the night shift schedule personnel wherein complainant SANCHEZ belonged because. through his own efforts and pity from the cashier in his plight. the bakeshop always suffered shortage of cash despite its sale.00) per day of work. 14. 2010. Original Copies of SANCHEZ’S former co-employees’ AFFIDAVITS to attest the truth of the aforementioned circumstances.00)2 per eight (8) hours of work. 2 Ibid. PERTINENT FACTS THAT LEAD TO COMPLAINANT’S ILLEGAL TERMINATION 16. complainant. It all started when prior to his suspension on May 10. 2009 until October 8. Nevertheless. 3 4 Page 3 of 22 . However.00)3 per day. 2009 to October 8.
I believed that there were some people who took the money from the cash box with the connivance of the cashier without the management knowledge. Contrary to the date stated in the Memorandum which was March 14. Complainant SANCHEZ duly abided with the said Memorandum and submitted his handwritten explanation thereof on May 10. To do it. The said Memorandum is attached herewith as ANNEX “E”. that the two complained acts did not happen in the same day as wrongly stated in the Memorandum. On March 09. would be blamed on the shortage of cash. It must be noted. He asked the same cashier to loan him Fifty pesos (P50) for his fare. Such letter explanation is attached herewith as Annex “F”. I tried my own little way on how to expose them but I was (sic) failed. Part of the 2nd paragraph of Complainant’s Letter explanation addressed to the management in accordance to the Memorandum issued on May 9. 22. he took One Hundred Pesos (P100. as he was suspicious of her. the cashier instead told him to open the cash box and take money from there. The portion of his letter explanation addressed to the management as to this matter is quoted as follows: xxx. 20. a Memorandum was issued addressed to the Complainant SANCHEZ from the management dated May 9. in full good faith. SANCHEZ badly needed money for his fare. 2012. And because of it.8 21. Page 4 of 22 . I did it because I felt something with a day shift staff that resulted in cash shortage and it was blamed on the night shift staff. He did not take money from the cash box. 2012. Because many times I caught one of the staff who was (sic) lot (sic) of money on his or her locker. The fact was: the two complained acts did not happen in the same day. however. wanted to solve the existing problem.00) for his fare. 2012. 2012.00) as he needed only Fifty Pesos (P50. 2012 with a subject POSSIBLE MISCONDUCT. The letter explanation is attached herewith as ANNEX “F”. He pretended to entice the cashier to get money from the cashbox. On March 14. However. instead. he came up of the idea of testing the cashier named Glenda Fortiza6. A “dayshift scaler” but assigned as night shift cashier at that time because the night shift cahier (Sanchez’s partner) was on leave.18. devised his own little way to know the real culprit because he did not want that innocent night shift staff like him. explaining his good faith and necessity that respectively caused the two abovementioned incidents. 8 7 6 5 Please read the 3rd paragraph of the complainant’s letter explanation which is attached herewith as Annex “D”.5 SANCHEZ. 2012. I was trying to test if the cashier will take money from the cash register if someone asked her to do so.7 19. Due to the two incidents mentioned above.00) which was placed on top of the cash register and gave back to the cashier Fifty Pesos (P50.
the management. called up complainant’s presence in the HR Office and the latter asked the former to sign a blank paper. 3. What frustrated SANCHEZ was that the Cashier whom he pretended to entice to get money from the cashbox and the same cashier whom he asked for a loan of FIFTY PESOS (P50. He was not even given a copy of a letter of termination if indeed there was such letter.0 Complainant SANCHEZ was illegally dismissed by the respondent. Truly aggrieved by the injustice he suffered from the conduct of his employer. SANCHEZ was interviewed by the HR officer pertaining to the aforesaid memorandum and the former reiterated his explanation as written in his letter. ARGUMENTS 1. and attorney’s fees against the respondent on June 13. despite SANCHEZ’S letter explanation.23. this present case. the HR Officer just told the complainant that it was merely for “PREVENTIVE INVESTIGATION”. damages. There was even no hint or a shadow of information given by the management that he has the right to counsel for purposes of such investigation. 9 Attached herewith as ANNEX “G”. he was not given the opportunity to confront the cashier face to face and so to attest the truth about the incident of him asking FIFTY PESOS (P50.00) for a loan from the cashier. 26. 2012. In fact. However . through Mr. complainant immediately consulted the undersigned lawyer and so eventually filed a Complaint9 for monetary claims. WHETHER OR NOT COMPLAINANT SANCHEZ IS ENTITLED TO DAMAGES AND ATTORNEYS FEES. In short. 2012. Reynaldo Argel. Complainant SANCHEZ was informed of his termination. illegal dismissal. On June 10. 25. 27. SANCHEZ was not even informed of his right to know that the investigation had a purview of possible dismissal. 2. WETHER OR NOT COMPLAINANT SANCHEZ WAS ILLEGALLY DISMISSED BY THE RESPONDENT. ISSUES 1. when he reported back to the HR Office to follow-up his status after the 30 day suspension (without pay) imposed on him. 24.00) was not presented to him. Page 5 of 22 . Hence. WHETHER OR NOT COMPLAINANT SANCHEZ IS ENTITLED TO HIS MONETARY CLAIMS AGAINST THE RESPONDENT. SANCHEZ signed the same. Believing that it was merely for attendance purposes.
two requirements are to be met. (emphasis and underscore provided) Hence. In cases of regular employment. The substantial requirement is provided under Article 282 of the Labor Code. Article 279 of the said law says: Art. (emphasis ours) As provided by the above-quoted provision of law. inclusive of allowances. He worked for more than Three (3) years as a Baker which is truly and usually necessary and desirable in the usual business or trade of his employer being a bakery shop. 280. an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. 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. Second. and. complainant SANCHEZ is a regular employee despite provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties. the answer is in AFFIRMATIVE. to wit: Art. since Complainant SANCHEZ is a regular employee. for a legal termination by the employer by reason of just cause to operate. Regular and casual employment. Termination by employer. Security of tenure. except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided.On the issue of whether or not complainant SANCHEZ was illegally terminated by the respondent. it must be noted that Complainant is no doubt a REGULAR EMPLOYEE. to wit: Article 282. shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. That any employee who has rendered at least one year of service. An employer may terminate an employment for any of the following causes: Page 6 of 22 . Article 280 of the Labor Code provides. whether such service is continuous or broken. 279. First. he is under the protective mantle of the security of tenure clause provided by no less than the Labor Code of the Philippines. the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. b) procedural. namely: a) substantial. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties. 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.
The law is clear that for misconduct to be a ground for termination.a. Clearly. this ground is not one of those provided for by law as a just cause for termination. and the second notice which informs the employee of the fact of his termination and the grounds relied upon by the employer. thereby making the dismissal illegal. were not met by the respondent in terminating the complainant. The complainant had not received any handbook or manual of company rules and regulations. c. 1. 2012 issued by the management to SANCHEZ. 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. The first notice which must indicate specifically the infractions committed by the employee and the latter is given the opportunity to explain why he should not be terminated. substantial and procedural. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work. on the other hand. (Emphasis ours) The procedural requirement. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative. the employer did not even inform the employee about company rules and regulations that may constitute SERIOUS MISCONDUCT or WILLFUL DISOBEDIENCE as a valid ground for termination. was not even certain that the acts of SANCHEZ complained of constituted SERIOUS or merely a POSSIBLE MISCONDUCT. Other causes analogous to the foregoing. As can be gleaned from the memorandum10 dated May 9. ARGEL. b. It is humbly submitted that both requirements. through its HR Officer MR. The Memorandum itself says: “This action MAYBE considered similar to an act of encouraging others to steal or to violate company rules. the management was not even sure that the first complained act which was “enticing the cashier to get money from the cashier’s box without proper authorization”11 is considered as SERIOUS MISCONDUCT. Indeed. 11 12 Page 7 of 22 .”12 No stretch of imagination can accommodate the 10 Attached herewith as ANNEX “E”. and e. regulations and policies.1 The substantial requirement for valid termination was not met by the respondent. it must be SERIOUS MISCONDUCT or WILLFUL DISOBEDIENCE by the employee of the lawful orders of his employer or representative in connection with his work. Part of the Memorandum. necessitates the Twin Notice Rule to be followed by the employer before terminating an employee. the subject is only: POSSIBLE MISCONDUCT. Further. the employer violated this requirement as he himself. Furthermore. Ibid. Gross and habitual neglect by the employee of his duties.
It is precisely because there was no stealing that happened.00) from the cashier’s box without proper authorization from management”13 was aptly explained by SANCHEZ in his “letter explanation”14 in this wise: On this occasion. It is the transgression of some established and definite rule of action. G. mere error in judgment cannot qualify as misconduct (much less a serious one) because of lack wrongful intent.16 Misconduct is a transgression of some established and definite rule of action. How can there be stealing if the one in charge in the cashier’s box was present and was even the one who suggested to the complainant to get money from it as clearly explained by the complainant? Further. Salgarino18 . Villas. and implies wrongful intent and not mere error in judgment. The cashier told me to open the cashbox and take money. 137795). a forbidden act.R. a dereliction of duty.R. Rather. regulations and policies” constitute SERIOUS MISCONDUCT. Moreover. But I did not do it and instead I took a P100 bill that was on top of the cash register and I gave back to the cashier P50 because I only needed enough for my fare. how come only the complainant was under suspension and eventually terminated while the said cashier was not? What bothered the complainant is that the said cashier was not presented in front of the complainant to clarify and to speak the truth about the incident despite the latter’s request during the investigation. As held in NLRC vs. it is not sufficient that the act or 13 Number 2 in the Memorandum attached herewith as ANNEX “E”. For misconduct to be considered serious it must be of such grave and aggravated character and not merely trivial or unimportant. Pertinent jurisprudence defines SERIOUS MISCONDUCT as follows: Misconduct has been defined as improper or wrong conduct. the second complained act: “you got money (P100. National Labor Relations Commission. Colegio de San Juan de Letran-Calamba vs. The management itself was not certain if the act complained of is even misconduct. and implies wrongful intent and not mere error in judgment. Third paragraph of complainant’s letter explanation attached herewith as ANNEX “C”. 2006 17 18 Page 8 of 22 . a dereliction of duty. I asked the cashier to lend me some money from her own purse and not from the cashbox. No. 1999. 2003. No. a forbidden act. the report stated that complainant only got money from the cashier’s box. March 26. 14 Attached herewith as ANNEX “D”. I admit I asked the cashier to lend me some money because I did not have enough to pay for may (sic) fare. willful in character. (G. The report did not say that complainant stole money. No. July 31. thus dubbed it only as POSSIBLE MISCONDUCT.17 Moreover. 16 15 Austria vs. the act complained of was not stealing that may constitute SERIOUS MISCONDUCT. 124382). 164376. as pointed out above.15 As can be read in the memorandum. (G.thinking that “encouraging others to steal or to violate company rules. willful in character. August 16. they were summoned to the HR Office individually.R. granting without admitting that there was indeed stealing that took place. In short.
No. Paragraph (e) of the Labor Code. Page 9 of 22 . to wit: (a) a written notice served on the employee specifying the ground or grounds for termination. Noncompliance therewith is fatal because these requirements are conditions sine qua non before dismissal may be validly effected. as held by the Supreme Court.20 (Emphasis supplied) 19 G. which may be considered as the proper charge. the respondent sent a notice called memorandum addressed to the complainant. It was. The first notice. at the most. These two notices requirement were not properly issued by the respondent thereby violating complainant’s right to procedural due process. This decision. Granting. he pretended to entice the cashier to get money from the cashbox because he wanted to solve the existing problem of cash shortage. This is in consonance with the express provision of the law on the protection to labor and the broader dictates of procedural due process. however. to wit: “e. The second notice on the other hand seeks to inform the employee of the employer's decision to dismiss him.”. for such notice to qualify in the standards set by law. However. 148205. that respondent relied on Article 282. if he so desires. and giving to said employee reasonable opportunity within which to explain his side.conduct complained of has violated some established rules or policies. Other causes analogous to the foregoing. still the complainant’s complained acts could not be considered as analogous to any of the grounds provided for by law.19 The act complained of against the complainant was in no way connected with or related to the latter’s duties as a baker. grounds have been established to justify his termination. The other requirement for valid termination due to just cause is the procedural requirement which is also known as the TWIN NOTICE RULE. True. a mere error of judgment which. 2005. and. the Supreme Court held: Article 277 (b) of the Labor Code and Section 2. the misconduct must not only be serious but it must also be in connection with or be related to the performance of the employee’s duties and must show that he has become unfit to continue working for the employer. must come only after the employee is given a reasonable period from receipt of the first notice within which to answer the charge and ample opportunity to be heard and defend himself with the assistance of a representative. Moreover.R. It is equally important and required that the act or conduct must have been performed with wrongful intent. Rule XXIII. (b) a written notice of termination served on the employee indicating that upon due consideration of all the circumstances. February 28. Book V of the Rules Implementing the Labor Code further require the employer to furnish the employee with two (2) written notices. does not constitute serious misconduct. As clearly explained by the complainant. serves to apprise the employee of the particular acts or omissions for which his dismissal is sought. The procedural requirement for valid termination was not met by the respondent. for argument’s sake.
you are hereby directed to explain in writing within forty eight (48) hours upon receipt of this memorandum why no disciplinary action will be imposed on for (the) above-mentioned acts. 1999. In a case where reinstatement is no longer desirable by both parties. an 20 21 Austria vs. 279. Page 10 of 22 . In effect. to wit: [T]he award of separation pay is inconsistent with a finding that there was no illegal dismissal. an employee who is dismissed without just cause and without due process is entitled to backwages and reinstatement or payment of separation pay in lieu thereof: Thus. Rather. the Supreme Court ruled. In short. such notice did not qualify as the notice required by law. Part of the memorandum which is attached herewith as ANNEX “D”. This was patently violated by the notice sent to the complainant. separation pay is granted.It is very clear that the notice must contain specifically the acts complained of and to explain why the employee concerned should not be terminated. Since. an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. the respondent violated the complainant’s right to be properly informed of the charges against him. it only wanted for a disciplinary action. as duly established above that complainant’s dismissal was illegal. 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. The law clearly provides: Art. the memorandum only stated: In this connection. the complainant is entitled to his reinstatement and full backwages.21 (emphasis supplied) Clearly.R. Thus. Thus. He was given no notice whatsoever that contain the fact of his termination and the grounds relied upon for his termination. the complainant was only orally informed that he was already terminated and nothing else. reinstatement is no longer a practical solution. 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. the notice must specify that penalty of termination is being sought by the employer. Complainant must be granted separation pay in lieu of reinstatement and full backwages. (G. 2. Security of tenure. inclusive of allowances. in the present case. No. for under Article 279 of the Labor Code and as held in a catena of cases. xxx. August 16. a strained relationship between the complainant and respondent had developed. the memorandum sent to the complainant did not specifically seek for the termination of the latter. The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer. Note that the notice merely cited the infraction as POSSIBLE MISCONDUCT. National Labor Relations Commission. As to the second notice. 124382). In effect. Moreover.6.
the answer is again in AFFIRMATIVE. undoubtedly. he rendered service for seven days a week. the payment of separation pay is considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable.24 2. Coca Cola v. On one hand. (G. Talde. When complainant SANCHEZ worked for the respondent’s bakeshop from September 8. The respondent is liable to pay the complainant wage differentials. 2009. Golden Ace Builders v. separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. January 30. complainant got an increase of wage on some occasions but the same were still below 22 Macasero v. 2. The Supreme Court in Velasco v. Separation pay in lieu of reinstatement may likewise be awarded if the employee decides not to be reinstated. Where reinstatement is no longer viable as an option.1. Daniel. On the SECOND ISSUE: whether or not the complainant is entitled to his monetary claims. June 21. May 5. 178524).R. what is more painful is that the complainant’s wage was way below the minimum set by law. 2008 until his illegal termination on June 10. it releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust. italics supplied) Moreover. 2012. italics and underscoring supplied) Furthermore. On the other hand. and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement. and backwages.0. Page 11 of 22 . (G.R.illegally dismissed employee is entitled to either reinstatement. complainant is clearly entitled to his money claims against the respondent.23 (emphasis in the original. or separation pay if reinstatement is no longer viable. The normal consequences of respondents’ illegal dismissal. Although. National Labor Relations Commission emphasizes: The accepted doctrine is that separation pay may avail in lieu of reinstatement if reinstatement is no longer practical or in the best interest of the parties. such payment liberates the employee from what could be a highly oppressive work environment. 24 23 Ibid. No. are reinstatement without loss of seniority rights. The respondent is not exempt from complying the minimum wage law because it employs more than Ten (10) workers as it owns a chain of JULIE’S BAKESHOP around the country. However. Under labor standards law. 2010. 156893).22 (emphasis. then. if viable. the Supreme Court further discusses: Under the doctrine of strained relations. Complainant SANCHEZ is clearly entitled to his monetary claims against the respondent. No. No. Southern Industrial Gases Philippines. (G. The payment of separation pay is in addition to payment of backwages. 2005. 187200).R.
00) a day or a total of Thirty One Thousand Forty Pesos (P31. 2010 to October 30. he was still underpaid because the minimum wage rate from September 1.00)25 per eight (8) hours of work. ROVII-15/a Effective : September 1.00) a day. ROVII-14. From Sept. the minimum wage rate from September 1. 9. 2010. However.00).00) a day. 2011 was increase to Two Hundred Eighty Five Pesos (P285)26 per day. 2008 WAGE ORDER NO. 8. 2009. 9. 1. Effective June 16. 2010 for Ninety Seven Pesos (P97.00) a day or the amount of Twenty Two Thousand Fifty Pesos (P22. he was paid only with One Hundred Seventy Pesos (P170) a day. 2010 to Oct. 8. his working days from October 9. Thus. 2009 or a total of Seventeen Thousand Five Hundred Fifty Pesos (P17. he got an increase of Twenty Pesos (P20. 2009 to Oct. 2010.00) a day or a total of Twenty Seven Thousand Two Hundred Pesos (P27. From Oct. from October 8. 2011 is Two Hundred Eighty Five Pesos (P285. he got an increase of P30 a day and so was paid a rate of Two Hundred Pesos (P200.550. he was underpaid of One Hundred Fifteen Pesos (P115) per day for 7 days or a total of Eight Hundred Five Pesos (P805. 2010 to August 30. he was entitled to wage differential in the amount of One hundred Seventeen Pesos (P117. 2008 to September 1. he was still underpaid from Oct. The wage differentials are set below as follows: From May 10.00).00) a day hence he was paid a rate of One Hundred Seventy (P170) per day. 2012. Hence. However. However. 2010 to August 30.the minimum wage law. the period of employment covered is from May 10. From September 1. 8. the minimum wage rate is Three Hundred Five Pesos (P305. But. 2009 to October 8. 1. he was underpaid of One Hundred Five Pesos (P105.200. So. So. 25 WAGE ORDER NO. 2009 to May 10.00) a day.00).050. the minimum wage from June 16. So.00).00) a day.040). Abiding the prescriptive period of three (3) years. 2011 were underpaid of Eighty Five Pesos (P85. 2012 (date of suspension). From October 9. 2010 was Two Hundred Sixty Seven (P267. 2010 to May 10. 2009 to Oct. 2011 to May 10. he was paid only with Two Hundred Pesos (P200. 2009 to Sept. 2011 to the present. he was paid only with One hundred fifty pesos (P150) while the minimum wage was wage at that time was Two Hundred Sixty Seven Pesos (P267.00) a day starting May 10.00) per day. 2012 (date of suspension). 2010 26 Page 12 of 22 .
2010 to August 30. 2010. 2008 Page 13 of 22 . shall be paid with an additional compensation as premium pay of not less than thirty percent (30%) of his regular wage. Effective June 16. the rest day premium is 30% of the regular wage which is Eighty Pesos (P80.645. Thus.00). 2009 to September 1. 91.Therefore. The Omnibus Rules Implementing the Labor Code provides. Since he worked for Seven (7) days a week. ROVII-14.00).1). 2. 2011. 2010. During that period. exclusive of other benefits under the labor law. he must have worked his rest day and so entitled to a rest day premium. to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days. an employee who is permitted or suffered to work on special holidays or on his designated rest days not falling on regular holidays. he is entitled to a rest day.485. However. From Sept. Premium and overtime pay for holiday and rest day work. the minimum wage was wage at that time was Two Hundred Sixty Seven Pesos (P267. Article 91 of the Labor Code is very clear on this matter. thus: From May 10. complainant is entitled to wage differential for not complying the correct minimum wage rate. Right to weekly rest day. 2012).1 Complainant is entitled to a rest day premium.00)27 per eight (8) hours of work. the complainant worked for seven days a week during his entire employment period. It shall be the duty of every employer. By law. 2009 to May 10. by law. — (a) Except employees referred to under Section 2 of this Rule. he was given none by the employer as he suffered to work for seven days a week. one day of which he worked on is considered as his rest day. there were Fourteen (14) months and there are 4 days in every month or a total of Fifty Six (56) days which were not paid or a total of Four Thousand Four Hundred Eighty Five (P4. amounting to Ninety Eight Thousand Six Hundred Forty Five Pesos (P98. the minimum wage was Two Hundred Eighty Five Pesos (P285) per day.50) which is his rightful rest day premium per rest day worked. As asserted above. to wit: SECTION 9. Hence. By law. whether operating for profit or not. from May 10. For work performed in excess of eight (8) hours on special holidays and rest days not falling on regular holidays. The Thirty percent (30%) of which is Eighty Five Pesos and Fifty Cents (P85. 2009 to September 1. an employee shall be paid an additional compensation for the overtime work equivalent to his rate for the first eight hours on a special holiday or rest day plus at least thirty percent (30%) thereof. a. 2. Still subject to the Three year prescriptive period (the covered period is from May 10. It says: Art. there were 27 WAGE ORDER NO.
00) rest day premium. As narrated in the facts of the case. 31. 2010. So.00) a day. he is entitled to the difference. subject to the Three year prescription. So.00) a day but he was paid only One Hundred Fifty Pesos (P150. 2012. for the other five regular holidays which he worked for but not paid.00) for the holidays he was paid for plus Five Hundred Thirty Four Pesos (P534. he is entitled to the difference of One Thousand Six Hundred Thirty Eight Pesos (P1. the complainant admits that he was paid Holiday premium but only as to the following holidays: New Year’s Day. from September 1. Thus. his pay was below the minimum wage. Admittedly. there were eight (8) regular holidays but he was paid only for seven (7) holidays and the minimum wage was Two Hundred Sixty Seven Pesos (P267. (P91. From January 1. the respondent is liable to the complainant to the unpaid regular holidays including the holiday differentials and special days.00) for the one (1) unpaid holiday. he is entitled to the difference of One Thousand Six Hundred Thirty Eight Pesos (P1.249. 2011 up to the present.2. 2. 2009.670. there were Eight (8) months or Thirty (30) days and his rest day premium is Ninety One Pesos and Fifty cents. Labor Day. complainant was paid seven (7) regular holidays. 2009 to May 10. 31. 2009. the minimum wage was Two Hundred Sixty Seven Pesos (P267.638. From September 1.104.00) for unpaid rest day premium. from May 10. 2009 to Dec. he is entitled to Twelve Thousand Two Hundred Forty Nine Pesos (P12. Page 14 of 22 . Thus. 2011 until his suspension on May 10. 2012.660. he is entitled to 200% of the minimum wage. 2009 to Dec. All in all.00) per day. All Saint’s Day.00). Independence Day.Twelve (12) months or a total of Forty eight (48) days. the minimum wage is Three Hundred Five Pesos (P305). 2010 to August 30. Still. Thus. However. the respondent is liable for Two Thousand Six Hundred Seventy Pesos (2. he is entitled to Four Thousand One Hundred Four Pesos (P4. Thus. From May 10.50). Again. he is entitled to Three Thousand Six Hundred Sixty Pesos (P3. Eidul Fit’r and Christmas Day or only for seven holidays in a year and nothing else.00) for the holidays in which he was paid for. the period covered is from May 10.638. The law provides for Twelve Regular Holidays and other special days.00) for those dates. Hence. Thus. The Complainant is entitled to his unpaid holiday premium. National Heroes Day.
Thus. From September 1.050. he is entitled to the difference of One Thousand Two Hundred Ten (P1. 2010. Thus.50). there were 3 special nonworking holidays and the minimum wage was P305. he is entitled to holiday premium and differential of Ten Thousand Four Hundred Thirteen Pesos and Fifty Cents (P10.00).068. He was paid for these regular holidays but below the minimum. 2010. 2012. 2012. there were two (2) special non-working holidays and the minimum wage was P267 (x 30%). there were 2 special non-working holidays and the minimum wage was P285 (x 30%). the law could not be any clearer that the complainant is entitled to such overtime pay and overtime pay differential. 2011 until suspension on May 10.00).00). there were 4 regular holidays which were not paid. From January 1. he is entitled to unpaid special days amounting to Two Hundred Seventy Four pesos and Fifty Cents (P274. 2010 to December 31. complainant is entitled to regular holiday pay of One Thousand Sixty Eight Pesos (P1. As to the issue of overtime pay. 2011.3. an additional compensation equivalent to his regular wage plus at least twenty-five percent Page 15 of 22 . Thus. Thus. Note that the minimum wage was at that time was Two Hundred Eighty Five Pesos (P285.00) per day. 1.210. 2011 to August 30. 2011 to August 30. 31.00) a day. there were two (2) special non-working holidays which were not paid. 2011 until his suspension May 10. Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work. there were nine (9) regular holidays and the minimum wage was Three Hundred Five Pesos (P305. From September 1.50). 2010 to August 30. complainant is entitled to One Hundred Sixty Pesos (P160. 87. complainant is entitled to the difference of One Thousand Fifty (P1. From January 1. he is entitled to One Hundred Seventy One Pesos (P171. Thus. Overtime work.00) for January 1. 2010. Thus.413. 2.00). From Jan. All in all.00). Out of these nine (9) regular holidays. 2011.From September 1. The Labor Code says: Art. he was paid only for five (5) holidays for Two Hundred Pesos (200.00).00). Thus. he is entitled to One Hundred Seventy One (P171. 2010 to Dec. 1. The Complainant is entitled to Unpaid Overtime and Overtime Differential. 2011 to August 30. From Sept. 2011 special days. there were 7 regular holidays and the minimum wage was Two Hundred Eighty Five Pesos (P285.
However. 2011. He was paid only for one hour as overtime pay. 2009 to October 8.559.28). 2012 or for 237 hours. From Oct. Thus. he is entitled to Two Thousand Six Hundred Sixty Four Pesos (P2. he must be paid with P44. As asserted above.53/hour overtime rate. he was paid for one hour overtime. So.78). However. He was paid with an overtime rate of P31. However.382. he was paid only with P31. Therefore. by law.65/hour overtime rate. Hence.72/hour (minimum wage x 25% / 8 hours). he is entitled to overtime pay differential. Although. 8.28/hour. His meal time which was only for maximum of 10 minutes was not paid for. his unpaid overtime differential is Three Thousand Eight Hundred Eighty Eight Pesos and Twenty Eight cents (P3.41/hour. he was paid only with P150/day. he is entitled to Six Thousand Five Hundred Fifty Nine Pesos and fifty Cents (P6. complainant is required to work for ten (10) hours (from 12:00 Midnight to 10 a. 2009. he was still underpaid because the minimum wage rate from Sept. the minimum wage rate is P305. Hence. 2009 to Oct.25 where he should be paid with P44. 2010 to August 30. But. So.664.493. the difference is P13.50). Therefore.56/hour. he got an increase of P20 a day hence he was paid a rate of P170 a day. Therefore. 2010 to his suspension on May. he is entitled to overtime differential of P17. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof. So. by law. From Oct.53/hour.00). 1.81). 2011 to suspension on May 10. 2010 to August 30. 9. 9. there were a total of 330 working hours. he is entitled to overtime differential of P18/hour. Thus.97/hour. There were 365 hours. his unpaid overtime differential is Seventeen Thousand Four Hundred Ninety Three and Seventy Eight Pesos (P17. From September 1. his overtime pay was only P26. he is entitled to a differential of P16. 2011 to the present.44/hour for 148 hours. such payment was based on his regular pay which was below the minimum wage set by law. he must be paid with P41. From Oct. Hence. his overtime pay was only P23. 2011 is P285/day. he is entitled to Four Thousand Three Hundred Eighty Two Pesos and Eighty One Cents (P4.). from the start of employment until his suspension. from October 8.888.(25%) thereof. Hence: From May 10. 2010. the minimum wage at those dates was P285/day. All in all. he got an increase of P30 a day and so was paid a rate of P200 day.25/hour where he should be paid with P47. Unpaid Overtime Pay Page 16 of 22 . 2012. 9. 10.m. However.
591. 2010. not less than one (1) hour time-off for regular meals. From Oct. 1. Meal and Rest Periods.53/hour. All in all. By law. 2011 to suspension date on May 10. he must be paid with P44. regardless of sex. By law. he is entitled to unpaid overtime pay of Ten Thousand Three Hundred Forty Pesos and Five Cents (P10. there were a total of 330 working hours.694. Complainant is entitled to his 13th Month Pay Differential Complainant admits that he was paid with 13th Month Pay. Therefore. he must be paid with P44. His 13th month pay must be Page 17 of 22 . From Sept. he is entitled to unpaid overtime pay of Sixteen Thousand Two Hundred Fifty Three and Forty Five Cents (P16. 2. — Every employer shall give his employees.340. he rendered also One Hundred Fifty Eight (158) hours. 8.From the start of employment until suspension. 2010 to suspension on May 10.M. 2011. The law clearly states: SECTION 7.76). the minimum wage rate is P305 and so the overtime pay must be P47. From Oct.16). 1. 2009 to Oct. Hence. his unpaid overtime pay is Forty Seven Thousand Eight Hundred Eighty Pesos and Sixteen Cents (P47. 9. the minimum wage rate from Sept.53/hour. From Oct. he must be paid with P41. the minimum wage was P285/day. 8. 2012. 2010 to August 30. 9. So.880.65/hour. there were 217 hours worked. 2011 to the present. By law. his meal time which was only for maximum of Ten (10) minutes was not paid for. except in the following cases when a meal period of not less than twenty (20) minutes may be given by the employer provided that such shorter meal period is credited as compensable hours worked of the employee: xxx Rest periods or coffee breaks running from five (5) to twenty (20) minutes shall be considered as compensable working time.253. (Emphasis ours) Thus. Hence. complainant is entitled to his unpaid overtime pay. He was paid only for one hour as computed above.).72/hour (minimum wage x 25% / 8 hours). From Oct.05). he is entitled to Six Thousand Five Hundred Ninety One Pesos and Seventy Six Cents (P6. 2009. his 13th month pay is based from his basic wage which was way below the minimum wage. Hence: From May 10.45).4. complainant is required to work for ten (10) hours a day for seven days a week (from 12:00 Midnight to 10 A. his unpaid overtime pay is Fourteen Six Hundred Ninety Four and Ninety Cents (P14.90). However. 2010 to August 30. there were a total of 158 days. Thus. 2012. However. 2009 to Oct. 9. There were 365 hours. 8. 2011 was P285/day.
4. 2012. Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of work performed between ten o’clock in the evening and six o’clock in the morning.00). Night shift differential.930 as 13th month pay.460.214. 2010. Respondent is liable to pay the complainant Night Shift Differential. his 13th month pay from May to December 2009 should be P5. For January 2011 to December 2011. he should have received P9.00). The 13th month pay paid to him was only P3.00) From January 2010 to Dec. the most painful thing in his employment is to be perpetually assigned in the night shift schedule. For January 2012 to May 2012.based from the minimum wage set by law. he worked from Twelve (12) Midnight to Ten (10) o’clock in the morning.450 as 13th month pay. By law. for the complainant. complainant is no doubt entitled to the 13th month pay differential. to wit: Art. By law.43 overtime or monthly pay of P5. By law. 2.00).594. Thus he is entitled to the difference of Three Thousand Four Hundred Eighty Pesos (P3. Thus.202. he should have received P9.035. However.56 as 13th month pay. Hence: From May 10.56). Thus he is entitled to the difference of One Thousand Two Hundred Fourteen Pesos and Fifty Six Cents (P1. Despite his numerous demands to be assigned in the day shift for fear that this may toll on his health. Above all else. All in all. It says: Page 18 of 22 . Therefore. The Omnibus Rules Implementing the Labor Code provides for the exception of this law. he received P6. by law.526. he received P6.480.00 plus P23. he should have received P2.480. He was a night shift baker starting from March 2009 until he was suspended on May 10. 2009 to December 2009. The Labor Code provides. he should receive P3.450 as 13th month pay. The law is very clear on this matter. All those times. he is entitled to the difference of Two Thousand Four Hundred Twenty Pesos (P2.930 as 13th month pay. respondent is liable to the complainant to pay the 13 th month pay differential in the total amount of ten Thousand Five Hundred Ninety Four Pesos and Fifty Six Cents (P10.420. 86. his daily wage was only P150. he was still suffered to work in the night shift. Thus he is entitled to the difference of Three Thousand Four Hundred Eighty Pesos (P3.312 as 13th month pay.00.
Minimum wage was P305/day.69). or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof. (c) Domestic helpers and persons in the personal service of another. Thus. From September 1. 29 30 31 Page 19 of 22 . the entitled amount is Forty Five Thousand Two Hundred One Pesos (P45. 2009 to October 8. (e) Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis. there were 355 days worked in the same schedule. From Sept.00). respondent is liable to the complainant in the amount of Fifty Six Thousand Four Hundred Thirty Pesos (P56. 1.M. complainant is entitled to his unpaid night shift differential in the amount One Hundred Ninety Four Thousand Six Hundred Thirty One Pesos and Sixty Cents (P194. that the respondent is liable to pay the complainant night shift differential of six (6) hours a day because he worked from Twelve (12) Midnight to Ten (10) A. (b) Those of retail and service establishments regularly employing not more than five (5) workers.201. 201231 (suspension date) or a total of 247 days of work. 2011 to May 10.00). (d) Managerial employees as defined in Book Three of this Code.60). 2010 to August 30. 200928 or a total of 156 days. 201130 or 330 days of work in the same night shift schedule. P285/day minimum wage.Night Shift Differential SECTION 1. Minimum wage was P267/day. no doubt. All in all. 201029. including government-owned and/or controlled corporations.631. Labor Standards Law and pertinent jurisprudence dictate that respondent is liable to pay the complainant the following money claims and their corresponding amounts: 28 Minimum wage was P267/day. complainant is entitled to Thirty Six Thousand One Hundred Twenty Nine Pesos and Sixty Cents (P36.871.430. — This Rule shall apply to all employees except: (a) Those of the government and any of its political subdivisions. To summarize. Nothing. Thus.129. From October 9. still in the same nightshift schedule. in any of the aforementioned exceptions that respondent belongs.00). From May 10. Coverage. purely commission basis. 2009 to August 30. he is entitled to Fifty Six Thousand Eight Hundred Seventy One Pesos (P56. however.
631.32 Thus.P10. The act of the respondent in unjustly and illegally dismissing complainant SANCHEZ caused him serious anxiety. Moreover.56 Night Shift Differential ---------------------------------P194.645. Page 20 of 22 . he was literally confronted with the problem of where to get his next meal. that the complainant voluntarily agreed with his compensation.Wage differentials --------------------------------------. The cashier concerned was not even presented in front of the complainant.P17.P12. and a contract is agreed upon by which a laborer accepts a lower wage.69 Assuming.0.P98.69 P391. the act of the complainant in agreeing to receive a wage below the minimum set by law cannot be taken against him.00).P47. respondent must pay the latter moral damages in the amount of One Hundred Thousand Pesos (P100.00 Holiday Premium And Differential -----------------. Although respondent sent notice to the complainant.000.50 Unpaid Overtime Differential-------------------------.413. The issue of whether or not complainant SANCHEZ is entitled to damages and attorney’s fees must be answered in the AFFIRMATIVE. wounded feelings. 3. Complainant is clearly entitled to damages and attorney’s fees. He was not given the opportunity to confront the cashier face to face to clarify the truth of the incident. To compensate the moral damage suffered by the complainant.493.16 13th Month Pay Differential----------------------------. and sleepless nights as he was unduly branded in the workplace as a theft.594. besmirched reputation. the same was already intended to terminate the complainant and not really to discover the truth of the complaint against the complainant. It is expressly provided for by law that complainant shall be entitled to recover the deficiency from the respondent.00 Rest day premium --------------------------------------.880. Such act by the respondent indicated bad faith and wanton disregard of the rights and plight of the complainant. after the suspension and termination.907. Article 1419 of the New Civil Code of the Philippines states: When the law sets. the act of the respondent in perpetually assigning the complainant to night 32 Article 1419 of the New Civil Code.249. or authorizes the setting of minimum wage for laborers.78 Unpaid Overtime Pay-----------------------------------. for the sake of argument.P10. he shall be entitled to recover the deficiency. Further. the law mandates that he is entitled to recover the deficiency from the respondent.
in view of the foregoing premises.000.000.00) and exemplary damages amounting to One Hundred Thousand Pesos (P100. the Twin Notice Rule was not aptly met by the respondent. Considering the prevailing circumstances in the case at bar.shift schedule despite the latter’s numerous demands to be transferred or sometimes relieved in the said shift clearly constitute bad faith and undue indifference to the health and person of the complainant. We believe this form of damages would serve to deter employers from future violations of the statutory due process rights of employees. taking into account the relevant circumstances.00. Thus. b) Grant the complainant backwages starting from his undue suspension on May 10.000.00) as a deterrent and to prevent any repetition thereof. the Supreme Court ruled. e) Order the respondent to pay complainant nominal damages as enunciated in Agabon Doctrine in the amount of Thirty Thousand Pesos (P30. it provides a vindication or recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules. still the respondent must be made liable to pay damages for violating procedural due process.000. Hence. At the very least. PRAYER WHEREFORE. Granting without admitting that the dismissal was anchored on a just cause. Last.00).00). since the complainant was constrained to hire a lawyer because of his illegal dismissal. 2012 and separation pay in lieu of reinstatement equivalent to one month for every year of service. respondent must be held liable to pay the complainant exemplary damages in the amount of One Hundred Thousand Pesos (P100. The amount of such damages is addressed to the sound discretion of the court.000. Page 21 of 22 . f) Award attorney’s fees in favor of the complainant. d) Award the complainant moral damages in the amount of One Hundred Thousand Pesos (P100. As established above. as enunciated in Agabon Doctrine. it is most respectfully prayed of this Honorable Office to: a) Declare the dismissal of the complainant as illegal. All other reliefs just and equitable under the foregoing premises are likewise prayed for. the respondent must pay attorney’s fees. we deem it proper to fix it at P30. c) Grant the monetary claims of complainant against the respondent. to wit: The violation of the petitioners’ right to statutory due process by the private respondent warrants the payment of indemnity in the form of nominal damages.
2611041/May 7. Capitol Site. 2012. REFUGIO Counsel for the Complainant Mendoza Law Office Suite 3E. 60311/ March 23. /March 19. JL Bldg. July. 2012/Manila MCLE EXEMPT Copy Furnished: RMG MANAGEMENT CORPORATION (JULIE’S BAKESHOP) Page 22 of 22 . 14. Cebu City Roll No.Cebu City. 2012/ Cebu City IBP No.. Don Jose Avila St.. 89383. Philippines. GREGORIO R. 2012 PTR No. ATTY.
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