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Republic of the Philippines

National Labor Relations Commission


Regional Arbitration Branch No. VII
Cebu City
Hon. Maria Ada Aniceto-Veloso
Presiding Labor Arbiter
-oOoFULGENCIO A. IBON,
complainant,
- versus
2313-15

NLRC RAB VII CASE NO. 10-

ALESNA SECURITY &


DETECTIVE AGENCY, INC.,
JOSEPH AL L. ALESNA President, and
FRANCISCO L. ALESNA, JR. Vice-President
and General Manager
respondents.
x------------------------------------------------------------------------x

POSITION PAPER FOR THE COMPLAINANT


(based on the 3rd amended complaint)

Complainant, through the undersigned counsel and to this


Honorable Office, most respectfully avers:
NATURE OF THE CASE
This is a case for illegal dismissal with money claims for
underpayment of salary, overtime pay, holiday pay, premium pay for
rest day, holiday and night shift, service incentive leave pay,
separation pay, backwages, moral and exemplary damages, and
attorneys fees.
PARTIES

Complainant is a Filipino citizen, of legal age and may be


served with summons and other processes at his address at Babag II,
Lapu-lapu City, Cebu.
Corporate respondent ALESNA SECURITY & DETECTIVE
AGENCY, INC. is a security agency with principal office at 376-D
Visitacion Street, Sambag II, Cebu City.
Individual respondents Joseph Al L. Alesna and Francisco L.
Alesna are the president and the vice-president (also general
manager) of the corporate respondent, respectively, both Filipino
citizens, of legal age and may be served with summons and other
processes with the principal office address of herein corporate
respondent.
STATEMENT OF FACTS
1. The following are the latest personal and employment circumstances
of the complainant:
Employee

Position

Date of
Employment

Salary Rate
per Day

Fulgencio A.
Ibon

Security
Guard

February 1991

PHP420/12 hrs

Date of
Dismissal
from
Employment
February 16,
2015

2. For twenty-four (24) years, complainant has religiously been serving


as security guard under respondent agency. This despite the fact that
within those years, complainant had once confronted respondents for
the incomplete remittances to his Social Security System (SSS)
account, also of PAG-IBIG and Phil. Health Insurance contributions.
3.

Complainants assignment before he was dismissed from


employment was with Budget Builder Inc. located in Tagunol Street,
Mambaling, Cebu City. His assignment there started on July 10, 2014.

4. In this assignment, complainant reported to work all days of the


week for TWELVE (12) continuous hours with the rate of only
FOUR HUNDRED TWENTY PESOS (PHP420.00) per day.
5. To note, said assignment was very far from complainants residence
at Babag 2, Lapu-lapu City, Cebu. However, despite the distance, he
accepted the assignment, for one, there was no other vacancy and,
for another, he was promised to be transferred to assignment nearer
to his residence whenever there will be vacancy.
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6. On February 1, 2015 to February 15, 2015, he took a leave. However,


when he returned to work on February 16, 2015, after his leave, he
found out that he was replaced by certain security guard Bao.
7. Still on February 16, 2015, in the office of respondents, complainant
talked with Nestro Serdan, inspector of respondents, and asked for
assignment. He was told that there was no vacancy. However, he
learned that there was vacancy at Ina Micro Opto Corporation,
Mactan Export Zone 2 (MEZ2), Lapu-lapu City, Cebu, one of
respondents client, which was just a few kilometers away from his
residence, but he was not endorsed to take the slot for reasons only
known to respondents.
8. On February 23, 2015, complainant texted Mariolito C. Ombajin, Chief
Security Officer of respondents. More follow-ups for vacancy were
made, however, the responses were only promises that he will be
informed of any vacancy soon. The last time that complainant made
the follow-up was in August 15, 2015 through a text message to
Mariolito C. Ombajin, but he received no response.
9. Aggrieved, herein complainant filed his labor complaint last August
18, 2015. No settlement was reached and until now, no assignment
was given to complainant.
10.
WELL ESTABLISHED IS THE LABOR PRECEPT THAT WHEN
A SECURITY GUARD IS PLACED ON A FLOATING STATUS FOR
MORE THAN SIX (6) MONTHS HE IS DEEMED CONSTRUCTIVELY
DISMISSED.
11.
During his stay with his last assignment at Budget Builder Inc.,
herein complainant was deprived of his salary differential, overtime
pay, holiday pay, premium pay for rest day, holiday and night shift
differential, as well as service incentive leave pay.
12.
WELL ESTABLISHED IS ANOTHER LABOR PRECEPT THAT
IT IS ON THE EMPLOYER THAT THE BURDEN OF PROVING
PAYMENT OF BENEFITS RESTS AND NOT OF AN EMPLOYEE TO
PROVE NON-PAYMENT OF THESE CLAIMS.
ISSUES
I
WHETHER OR NOT COMPLAINANT WAS ILLEGALLY
DISMISSED.

II
WHETHER OR NOT COMPLAINANT IS ENTITLED TO PAYMENT
FOR SALARY DIFFERENTIAL, OVERTIME PAY, HOLIDAY PAY,
PREMIUM PAY FOR REST DAY, HOLIDAY AND NIGHT SHIFT,
SERVICE INCENTIVE LEAVE PAY, SEPARATION PAY,
BACKWAGES, MORAL AND EXEMPLARY DAMAGES, AND
ATTORNEYS FEES.

ARGUMENTS AND DISCUSSION


I
COMPLAINANT WAS ILLEGALLY DISMISSED.
It is undisputed that herein complainant was a former regular
employee of herein respondents. The appearances of herein
respondents through representatives during the SENA Conciliation
Conference and Mandatory Preliminary Conference before the Labor
Arbiter without assailing the employer-employee relationship of
herein parties could attest to this.
Now, to discuss the illegal dismissal with the following factual
and legal circumstances being established.
The following factual circumstances provided above would
show the constructive dismissal of complainant:
6. On February 1, 2015 to February 15, 2015, he
took a leave. However, when he returned to
work on February 16, 2015, after his leave, he
found out that he was replaced by certain
security guard Bao.
7. Still on February 16, 2015, in the office of
respondents, complainant talked with Nestro
Serdan, inspector of respondents, and asked for
assignment. He was told that there was no
vacancy. However, he learned that there was
vacancy at Ina Micro Opto Corporation, Mactan
Export Zone 2 (MEZ2), Lapu-lapu City, Cebu,
one of respondents client, which was just a few
kilometers away from his residence, but he was
not endorsed to take the slot for reasons only
known to respondents.
8. On February 23, 2015, complainant texted Mariolito
C. Ombajin, Chief Security Officer of respondents.
More follow-ups for vacancy were made; however,
the responses were only promises that he will be
informed of any vacancy soon. The last time that
complainant made the follow-up was in August 15,
2015 through a text message to Mariolito Ombajin,
but he received no response.

9. Aggrieved, herein complainant filed his labor


complaint last August 18, 2015. No settlement was
reached and until now, no assignment was given to
complainant.
In a number of cases like REYES, et al. vs. RP GUARDIANS
SECURITY AGENCY, INC., G.R. No. 193756, April 10, 2013,
citing Sentinel Security Agency, Inc. vs. National Labor
Relations Commission, 356 Phil. 434, 443 (1998), the honorable
high tribunal has pronounced that,
when the floating status lasts for more than six
(6) months, the employee may be considered to
have been constructively dismissed. No less than
the Constitution guarantees the right of workers to
security of tenure, thus, employees can only be
dismissed for just or authorized causes and after
they have been afforded the due process of law.
In the present case, complainant has been on floating status for
more than six (6) months, counting from February 16, 2015 and until
August 18, 2015, when he filed this case. Hence, his case squarely
involves constructive dismissal.
II
COMPLAINANT IS ENTITLED TO PAYMENT FOR SALARY
DIFFERENTIAL, OVERTIME PAY, HOLIDAY PAY, PREMIUM PAY
FOR HOLIDAY AND NIGHT SHIFT, SERVICE INCENTIVE LEAVE
PAY, SEPARATION PAY, BACKWAGES, MORAL AND EXEMPLARY
DAMAGES, AND ATTORNEYS FEES.
Complainant is entitled to his money claims.
FOR SALARY DIFFERENTIAL AND OVERTIME PAY
Let it be noted that in his last assignment, complainant
reported to work all days of the week for TWELVE (12)
continuous hours with the rate of only FOUR HUNDRED
TWENTY PESOS (PHP420.00) per day. His hours of service every
day were in excess of four (4) hours, the regular working hours per
day being only eight (8) hours. The mentioned rate does not
compensate the legal pay for minimum wage and overtime pay
combined.
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FOR OVERTIME PAY, HOLIDAY PAY, PREMIUM PAY FOR REST DAY
HOLIDAY AND NIGHT SHIFT AND SERVICE INCENTIVE LEAVE PAY
Complainant is entitled to all these because he worked for all
these. However, since July 10, 2014, when he was assigned at
Budget Builder Inc., he was deprived of these.
FOR SEPARATION PAY AND BACKWAGES
Complainant is likewise entitled to separation pay and
backwages. Since reinstatement is no longer advisable because of
strained relations between the parties, complainant shall be given
separation pay. Also, because of the unjust dismissal, complainant
shall be given backwages representing compensation that should
have been earned but were not collected.
FOR MORAL AND EXEMPLARY DAMAGES AND ATTORNEYS FEES
Complainant is entitled to moral and exemplary damages in the
amount of PHP50,000.00, respectively. As well, he is entitled to
attorneys fees in the amount of ten percent (10%) of his total
monetary award, having been forced to litigate in order to seek
redress of his grievances, pursuant to Article 111 of the Labor Code.
In cases like, SAN MIGUEL PROPERTIES PHILIPPINES, INC.,
vs GUCABAN, G.R. No. 153982, July 18, 2011; Mayon Hotel
and Restaurant v. Adana, 497 Phil. 892, 922 (2005); and
Litonjua Group of Companies v. Vigan, 412 Phil. 627, 643
(2001), the honorable high tribunal has enunciated, that:
moral damages are awarded in termination cases
where the employees dismissal was attended by
bad faith, malice or fraud, or where it constitutes
an act oppressive to labor, or where it was done in
a manner contrary to morals, good customs or
public policy.
In the present case, the complainants long wait for new
assignment is an oppression he having been unjustly deprived of
income to feed his family. The same is also against public policy for
the waiting exceeds the allowed six (6) months period.
To give example to all employers, that they may avoid paying
disrespect to labor laws to the oppression of the laborers, awarding
exemplary damages is just apt.

Considering the entitlement of exemplary damages in this case,


attorneys fees can likewise be awarded.
PRAYER
Wherefore, it is humbly prayed that complainant be declared
illegally dismissed and respondents be ordered to pay, solidarily,
herein complainant for the following:
A) SALARY DIFFERENTIAL;
B) OVERTIME PAY;
C) HOLIDAY PAY;
D) PREMIUM PAY FOR REST DAY, HOLIDAY AND NIGHT SHIFT;
E) SERVICE INCENTIVE LEAVE PAY;
all for the service assignment at Budget Builders, Inc.
F) SEPARATION PAY, one month for every year of service;
G) BACKWAGES;
H) MORAL AND EXEMPLARY DAMAGES, for PHP50,000.00
respectively;
I) ATTORNEYS FEES.
Other relief and remedies just and equitable under the
premises are likewise prayed for.
Respectfully submitted.
November 16, 2015, Cebu City, Philippines.

ATTY. ELSON ENGLIS


Roll No. 53299
PTR No. 5578854/10-09-15/Cebu City
IBP O.R. No. 0985286/01-09-15/Cebu City
MCLE Compliance No. IV-002567/06-04-13

Copy furnished:
ALESNA SECURITY & DETECTIVE AGENCY, INC.
_____________________
376-D Visitacion Street, Sambag II, Cebu City
______________________________

Received

by:

Date:

JOSEPH AL L. ALESNA
_____________________
376-D Visitacion Street, Sambag II, Cebu City
______________________________

Received

FRANCISCO L. ALESNA
_____________________
376-D Visitacion Street, Sambag II, Cebu City
______________________________

Received

by:

Date:
by:

Date:

VERIFICATION AND CERTIFICATION


OF NON-FORUM SHOPPING

I, Fulgencio A. Ibon, Filipino, of legal age, married, after


having been duly sworn in accordance with law, depose and state
that:
1. I am the complainant in the above-stated case and I caused the
preparation of the foregoing POSITION PAPER;
2. I have read the contents thereof and the facts stated therein are true
and correct of my personal knowledge and/or on the basis of copies
of documents and records in my possession;
3. I have not commenced any other action or proceeding involving the
same issues in the Supreme Court, the Court of Appeals, or any other
tribunal or agency;
4. To the best of my knowledge and belief, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals, or any other
tribunal or agency;
5. If I should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
Appeals, or any other tribunal or agency, I undertake to report that
fact within five (5) days therefrom to this Honorable Office.

FULGENCIO A. IBON
Affiant
SUBSCRIBED AND SWORN to before me this _______ day of
_________________ 2015 at __________________________, affiant
exhibiting to me his SSS Identification Card No. 06-1012372-0 issued
at Cebu City.

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Page No. ______________;
Book No. ______________;
Series of 2015.

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