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[LABOR] United Tourist Promotions (UTP), Ariel Jersey v.

Harland Kemplin
UTP
was formed in 1995
by Jersey, with help of 2 American Expatriates - Kemplin and Dunne

a sole proprietorship business entity engaged in the printing and distribution of
promotional brochures and maps for tourists,

employed Kemplin as President, for 5 yrs
from 2002-2007
renewable for same period, subject to new terms and conditions
Kemplin
even after expiration of fixed term employment contract
continued to render services
In May 2009,
as president, signed as President of UTP, advertisement agreements with Pizza Hut
and M.Lhuillier
UTP’s Legal Counsel, in Jul 2009
sent letter to Kemplin
informing him of expiration of Employment Contract since Mar 2007, and was not
renewed.
that is extended services was mere toleration and was just given monthly
commissions.
but due to his inhuman treatment of the rank and file employees, considering the
cases filed against him : grave oral threats, summary deportation, grave coercion…
no other recourse but to give him said letter/notice to cease and desist from entering
the premises of the main office[,] as well as the branch offices of [UTP] from receipt
for the protection and safety of the company[,] as well as to the employees and to

. Jersey. between UTP and Kemplin. and called them "brown monkeys”. the dismissal due to just cause should not be invalidated. NLRC.avoid further great damages Complaint before NLRC against UTP and officers. he began examining the company's finances. aTEADI UTP termination letter sent Based on expiration of fixed term contract Based on employer’s prerogative to terminate an employee who commits criminal and illegal acts prejudicial to business bad-mouthed. practical and viable. treated his co-workers as third class citizens. Lindo. he rendered his services as President and General Manager of UTP. Kemplin’s reinstatement is not adviseble. damages. non-payment of salaries. that as per doctrine of strained relationship. as per Wenphil Corp v. with the end in mind of collecting from delinquent accounts of UTP's distributors. AND noted some accounting discrepancies. and recovery of company car forcibly taken from him Kemplin’s Argument after the expiration. still. and Jersey Illegal dismissal. Kemplin is a fugitive from justice since warrants of arrest for grave oral defamation and grave coercion 23 had been issued against him His extension was by merely toleration and he was given allowances due to humanitarian considerations that even if it were to be assumed that procedural due process was not observed in terminating Kemplin. subsequently. he received a notice from UTP's counsel ordering him to cease and desist from entering the premises of UTP offices. in 2008. and benefits.

a) Discussed Art 280 classifies employees into three (3) categories. Lhuillier Phils. b) Having been allowed to continue performing work much beyond the expiration of his contract. various and serious offenses alluded thereto were not legally established before [Kemplin's] separation. Their letter are two notices in one. Kemplin was illegally dismissed UTP and Jersey are held liable to reinstate [Kemplin] to his former position without loss of seniority rights To pay backwages Grounds: a) [Kemplin] was able to show that he was still officially connected with [UTP] when he signed in his capacity as President of [UTP] an (sic) advertisement agreement[s] with Pizza Hut and M. 2009. and may only be dismissed for cause. and after affording him procedural requirement of notice and hearing c) While UTP and Jersey may have reason to terminate Kemplin "for loss of trust and confidence” [UTP and Jersey] failed to observe the procedural requirements of notice and hearing. NLRC Affirmed. Lindo and the other Jersey were excluded from liability. Further. namely: (1) regular employees or those whose work is necessary or desirable to the usual .LA Kemplin was a regular employee. Thus the fixed term contract = converted to regular one as per Art 280 Thus he now enjoys security of tenure. for lack of proof of their involvement in the illegal dismissal. But. as late as May 12.

c) Further. if not an admission. regardless of the nature thereof (2) project employees or those whose 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 services to be performed [are] seasonal in nature and the employment is for the duration of the season (3) casual employees or those who are neither regular nor project employees. [UTP and Jersey] failed to prove the existence of just cause for his termination. Their allegation of loss of trust and confidence was raised only in their position paper and was never posed before [Kemplin] in order that he may be able to answer to the charge. further classified into: (1) regular employees by nature of work. . [Kemplin's] employment after the expiration of his fixed term employment is already regular. -employees who have been performing the job. since he continued working as President for UTP for about one (1) year and five (5) months and since [his] employment is not covered by another fixed term employment contract. b) In CAB. b) The alleged Notice of Termination Letter sent by [UTP and Jersey] miserably failed to comply with the twin-notice requirement under the law. still in the employ of UTP albeit without a new or renewed contract of employment. . and -employees who perform a particular activity which is necessary or desirable in the usual business or trade of the employer (2) regular employees by years of service. that [Kemplin] was. . .business of the employer. indeed. CA Affirmed a) if indeed [Kemplin's] relationship with UTP after the expiration of the former's employment contract was based on [UTP and Jersey's] mere tolerance. why then did [they] have to "dismiss" [Kemplin] based on alleged loss of trust and confidence? already an indication.

prejudicial to business and all the persons concerned. Kemplin was illegally dismissed Award of 13th month benefit is Deleted In lieu of reinstatement. UTP and Ariel D. the petitioner is not entitled to 13th month pay. managerial employees are exempt from receiving such benefit without prejudice to the granting of other bonuses. the payment of separation pay is considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. Jersey are further ORDERED TO PAY Harland B. Kemplin legal . Separation pay. in lieu of the 13th month pay. for every year of service. Kemplin's reinstatement is not likely to create an efficient and productive work environment.” b) Award of 3th month is improper As per Torres v. to managerial employees upon the employer's discretion. " "Pursuant to Memorandum Order No. 2) While Kemplin was truly illegally dismissed. As per APO v. hence. and exception is strained relationship. 2002 until the finality of this Decision. Bank of San Juan "Being a managerial employee. Harland B. 28. did not cure the defects attending his dismissal from employment. Bides “General rule is reinstatement. through the Position Paper filed by UTP and Jersey before LA Jose. where reinstatement whould just promote atmosphere of antipathy and antagonism” "Under the doctrine of strained relations.SC Partially meritorious 1) Kemplin should have been promptly apprised of the issue of loss of trust and confidence in him before and not after he was already dismissed. computed at rate of 1mo. modification is necessary in the order of reinstatement and 3th month benefit a) There were already unsavory accusations hurled by the parties against each other. with a fraction of at least six (6) months considered as one whole year to be reckoned from the time of his employment on March 1. The fact that Kemplin was apprised of his supposed offenses.

.interest of six percent (6%) per annum of the total monetary awards computed from the finality of this Decision until full satisfaction thereof.