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RYAN B. SUAREZ, Complainant, - versus -12 Dismissal NCR Case No. 08-88888 For : Illegal

ABC CORPORATION and Mr. Jose D Cruz in his capacity as President of ABC CORPORATION, Respondents. x --------------------------------------- x

Respondents by the under signed counsel and unto this Honorable Labor Arbiter Office most respectfully submits this position paper and avers the following to wit: THE PARTIES 1. Complainant RYAN B. SUAREZ is of legal age and resident of No. 22, San Jose Street, Pasig; 2. Respondent ABC CORPORATION is a corporation organized and existing under Philippine laws with office address at Makati Avenue, Makati City; 3. The other respondent is JOSE D. CRUZ, of legal age and President of respondent ABC CORPORATION and also has office address at Makati Avenue, Makati City;

STATEMENT OF FACTS AND THE CASE 1. Respondent ABC Corporation is a corporation organized and existing under Philippine laws. It is engaged in business of importing buying, selling and retailing consumer products. Its principal office is located at Makati Avenue in Makati City. 2. On 2007 the company hired Complainant as a probationary employee. At first the company wanted to dismiss Complainant due to poor performance and his failure to satisfy the standards for regular employment. However, because Complainant asked the company for another chance, it gave him regular status of employment. 3. On January 2012, due to lack of options Complainant was appointed to his current position as Manager. However not long after his appointment the company noticed that there were certain irregularities in some company transactions. Materials and products were bought and several payments to third parties were made through the instruction and approval of Complainant but without going through the approval of the Board. 4. On January 31 2013, complainant was issued a memo from the HR Department signed by its manager and noted by the company President, namely respondent Jose D. Cruz. The memo states that he is to be under preventive suspension for 30 days. Furthermore the memo stated that the company has received information that he is involved in certain irregularities affecting the funds and finances of the company and that he is being investigated and subjected to disciplinary process. 5. On February 15, 2013, the company gave Complainant a Notice to Explain asking him to submit a written explanation within 5 days regarding the allegations mentioned in the notice. the Company issued the Notice in order to give Complainant full opportunity to answer the charges and defend himself. 6. On February 28, 2013 the company issued a

memo to Complainant extending his preventive suspension for an additional 10 days. However the company still issued Complainant with corresponding salary for every day of the extended suspension period; 7. On March 5, 2013, Respondent issued the Notice of Termination to Complainant. Respondent found sufficient evidence showing that Complainant was involved in the irregularities. Complainant was guilty of serious misconduct, violation of company rules and policies and fraud against the company. The Notice of Termination was sent to Complainants home address by registered mail. 8. On March 10, 2013, Respondent company received summons from the National Labor Relations Commission. It found out that Complainant filled a case for illegal dismissal against the company and its President. 9. Complainant claims for reinstatement, payment of full back wages, moral and exemplary damages and attorney's fees all have no factual and legal bases and thus should be denied. ISSUES I. WHETHER OR NOT THERE IS JUSTIFIABLE CAUSE IN PLACING COMPLAINANT UNDER PREVENTIVE SUSPENSION WHETHER OR NOT THERE IS SUFFICIENT CAUSE FOR THE COMPLAINANT TO FILE A COMPLAINT FOR ILLEGAL DISMISSAL WHETHER OR NOT THERE IS VALID REASON TO INCLUDE THE COMPANY PRESIDENT IN THE COMPLAINT WHETHER OR NOT RESPONDENT ABC CORPORATION IS LIABLE TO REWARD REINSTATEMENT AND PAY COMPLAINANT FULL BACKWAGES, MORAL EXEMPLARY DAMAGES AND




ATTORNEYS FEES DISCUSSION THERE IS JUSTIFIABLE CAUSE FOR THE IMPOSITION OF PREVENTIVE SUSPENSION TO THE COMPLAINANT 1. The respondent has the reserved right to act and impose sanctions on its employees that are guilty or in suspicion of committing malicious or questionable conduct as to matters pertaining to the company; 2. Respondent ABC Corporation noticed that there were irregularities in some company transactions, Hence measures must be undertaken to protect the paramount interests of the company. One of which is to place individuals that are suspected guilty under preventive suspension during the pendency of the investigation; 3. The Complainant is allegedly responsible for the approval of procurement and payment of several materials and products to third parties without initially seeking consultation and approval of the Board ; 4. Moreover, the alleged irregularities in the company came not long after the Complainant assumed the position of Manager of the Accounting and Finance Department. Therefore an investigation into the alleged irregularities is in order and imposition of preventive suspension in the part of the Complainant is warranted given his apparent involvement to the matter; 5. Even under the Labor Code, Respondent's preventive suspension finds valid justification. As provided in Section 8, Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code: Sec. 8. Preventive Suspension. The employer may

place the worker concerned under preventive suspension if his continued employment poses a serious threat to the life or property of the employer or of his co-workers.; 6. Hence, it is clear and established that the Respondent ABC Corporation did not err and had justifiable cause in placing Complainant under preventive suspension. THERE IS NO SUFFICIENT CAUSE FOR THE COMPLAINANT TO FILE A CASE FOR ILLEGAL DISMISSAL TO THE RESPONDENT COMPANY 7. On January 31 2013, when the Notice of Preventive Suspension was given to the Complainant, he was advised and made aware of the circumstances surrounding the preventive suspension, that he is currently to be subjected to investigation and disciplinary process concerning the matter of alleged irregularities in the company; 8. Furthermore, on February 15, 2013, the Respondent gave Complainant a Notice to Explain asking him to submit a written explanation within five (5) days regarding the allegations mentioned in the notice. The Respondent issued the notice in order to give complainant full opportunity to answer the charges and defend himself. 9. Hence, it is apparent in the preceding statements that the Respondent observed all necessary and legal procedures to notify the Complainant of the allegations against him and give him sufficient time and full opportunity to answer the charges and defend himself. 10. On March 5, 2013, the Respondent found sufficient evidence that the Complainant was indeed involved in the irregularities. Complainant was guilty of serious misconduct, violation of company rules and policies

and fraud against the company. Thus, Termination was issued to the Complainant.



11. The observance and respect of the Respondent as to the rights of the Complainant is evident in numerous instances. It is hereby clear that since the start of the preventive suspension and up to the eventual conviction of the Complainant the Respondent did not err nor committed any mistake that would constitute or merit as a ground for illegal dismissal. The Complainant therefore has no sufficient cause or evidence to file a complaint for illegal dismissal because his dismissal was done and was in conformity to the due process of law. 12. Furthermore the grounds and valid justification for the dismissal of the Complainant is clearly present and in line with the provisions under Section 282, Title 1, Book VI of the Labor Code of the Philippines: Art. 282. Termination by Employer. An employer may terminate an employment for any of the following causes: 1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; 2. Gross and habitual neglect by the employee of his duties; 3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; 4. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and 5. Other causes analogous to the foregoing.




PRESIDENT MR. JOSE D. CRUZ IN THE COMPLAINT 13. ABC President Mr. Jose D. Cruz should not be included in the complaint as even though he could be solidarily liable with the company, there is no showing or proof that Mr. Cruz acted in bad faith with regards to the issue of the Complainant ; 14. In MAM Realty Development Corporation v. NLRC, the solidary liability of corporate officers in labor disputes was discussed in this wise: A corporation, being a juridical entity, may act only through its directors, officers and employees. Obligations incurred by them, acting as such corporate agents, are not theirs but the direct accountabilities of the corporation they represent. True, solidary liability may at times be incurred but only when exceptional circumstances warrant such as, generally, in the following cases: I. When directors and trustees or, in appropriate cases, the officers of a corporation (a) vote for or assent to patently unlawful acts of the corporation; (b) act in bad faith or with gross negligence in directing the corporate affair; 15. There is no evidence showing that Mr. Cruz acted in bad faith in his performance as President of Respondent ABC Corporation. Furthermore there is no evidence that Mr. Cruz (acting in bad faith) in any way influenced the decision concerning the issue regarding the Complainant. Therefore there is no reason for the Complainant to hold Mr. Cruz personally or solidarily liable as to the actions of the company. 16. Further clarification as to specifications concerning the Solidary Liability of company officials which is relevant in this case is discussed in the case of Fernandez vs. Newfield Staff Solutions,:

xxxx In labor cases, for instance, the Court has held corporate directors and officers solidarily liable with the corporation for the termination of employment of employees done with malice or in bad faith." (Italics, emphasis and underscoring in the original; citations omitted.) Bad faith does not connote bad judgment or negligence; It Imports dishonest purpose or some moral obliquity and conscious doing of wrong; it means breach of a known duty through some motive or interest or ill will; it partakes of the nature of fraud. 41 To sustain such a finding, there should be evidence on record that an officer or director acted maliciously or in bad faith in terminating the employee.42 But here, the Labor Arbiter and NLRC have not found Lopez, Jr. guilty of malice or bad faith. Thus, there is no basis to hold Lopez, Jr. solidarily liable with Newfield. Payment of the judgment award is the direct accountability of Newfield. xxx COMPLAINANT IS NOT ELIGIBLE TO SEEK REINSTATEMENT, PAYMENT OF FULL BACKWAGE, MORAL AND EXEMPLARY DAMAGES AND ATTORNEYS FEE'S FROM THE RESPONDENT 17. The complainant is not entitled to full payment of full back wages, moral and exemplary damages and attorneys fees as the Complainants allegations have no legal bases and is non meritorious. The Complainant failed to establish sufficient grounds and evidences to prove his claim of illegal dismissal

18. Furthermore, it has been duly established that the Respondent had observed due process and committed no error in dismissing Complainant therefore there is no basis for Complainant to demand and collect damages; 19. The grounds for denial of moral damages is further discussed in the case of Cocoland Development Corp. vs. NLRC, where the Court ruled; In Primero vs. Intermediate Appellate Court, this Court held that " an award (of moral damages) cannot be justified solely upon the premise (otherwise sufficient for redress under the Labor Code) that the employer fired his employee without just cause or due process. Additional facts must be pleaded and proven to warrant the grant of moral damages under the Civil Code, these being, to repeat, that the act of dismissal was attended by bad faith or fraud, or was oppressive to labor, or done in a manner contrary to morals, good customs, or public policy; and of course, that social humiliation, wounded feelings, grave anxiety, etc., resulted therefrom." This was reiterated in Garcia vs. NLRC, where the Court added that exemplary damages may be awarded only if the dismissal was shown to have been effected in a wanton, oppressive or malevolent manner. This the private respondent failed to do. Because no evidence was adduced to show that petitioner company acted in bad faith or in a wanton or fraudulent manner in dismissing the private respondent, the labor arbiter did not award any moral and exemplary damages in his decision. Respondent NLRC therefore had no factual or legal basis to award such damages in the exercise of its appellate jurisdiction.


WHEREFORE, it is most respectfully prayed of this Honorable Court to DISMISS the Complainants' complaint for illegal dismissal for utter and palpable lack of merit and to likewise DENY Complainants' claims for reinstatement, payment of full back wages, moral and exemplary damages and attorney's fees as they have no factual and legal bases Other just and equitable reliefs are likewise prayed for. Makati City for City of Manila, May 9, 2017.

SAN PEDRO & ASSOCIATES LAW OFFICE Counsel for the Respondents Trump Towers Kalayaan Ave, Makati City by: Juan Miguel P. San Pedro Counsel for Respondents MCLE Compliance No. III-8888888 Issued on September 12, 2016 at Quezon City IBP No. 88888 / 09-12-16 / Quezon City PTR No. 888888 / 09-12-16 / Quezon City

Copy furnished: RYAN B. SUAREZ No.22 San Jose St., Pasig City