Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. VII
Cebu City

MARIA P. DELIMA
Complainant

NLRC Case No. RAB-13-02-12342010

-versusABC Company
Respondent
x---------------------------------------------------------x

POSITION PAPER

COMES NOW, the Plaintiffs, through the undersigned counsels, and unto
this Honorable Court, most respectfully avers:

I
PRELIMINARY STATEMENT
This is a case for alleged illegal dismissal after herein respondent terminated
complainant on the ground of loss of trust and confidence and incompetence of her
managerial function, which are unfounded and whimsical.

II
THE PARTIES
Complainant, Maria P. Delima was hired by respondent ABC Company on
January 02, 2010 as a General Manager. Her monthly compensation was FIFTY
THOUSAND PESOS (P50,000.00).
Respondent, ABC Company is a domestic corporation engaged in the
business of electronics with its principal business address at Ramon Cojuanco
Building, Makati City.

III
STATEMENT OF FACTS
The Complainant, Maria P. Delima was hired by ABC Company on
January 2,2010 as a General Manager. Her monthly compensation was FIFTY
THOUSAND PESOS (P50,000.00) . Under her department, she had 20 personnel
assisting her in managing the company.
During the period of her employment, Juan Magnanakaw, who was under
her supervision was caught in flagrante of taking in his possession a computer
belonging to the company. Charged of theft, Juan was found guilty by the
investigating committee formed by the company.
On the basis of the decision rendered by the committee, Maria was
dismissed from the service on the ground of loss of trust and confidence and
incompetence of her managerial function.
At the time of her dismissal, Maria was 5 months pregnant.
Thus the complainant filed this case against respondent ABC Corporation
for illegal dismissal, non-payment of overtime pay, 13th month pay, night shift
differential pay and regular holiday pay.
For failure to arrive at any amicable settlement during the conciliation
conferences, this Honorable Office required the herein Parties to submit their
respective Position Papers.
Hence, this Position Paper for the Complainant.

IV
ISSUES
A.) Whether or not the complainant was illegally dismissed.
B.) Whether or not the complainant was dismissed on discriminatory grounds
enshrined under the Labor Code and Magna Carta of Women.
C.) Whether or not the complainant is entitled to the payment of the following
benefits:
1. overtime pay.
2. 13th month pay.
3. night shift differential.
4. regular holiday pay.

V
DISCUSSION/ ARGUMENTS

A.) Complainant was illegally dismissed .

The minimum standards of due process in all cases of termination of
employment are prescribed under Article 277(b) of the Labor Code, to wit:
Art. 277. Miscellaneous Provisions.
xxxx
(b) Subject to the constitutional right of workers to security of
tenure and their right to be protected against dismissal except for
a just and authorized cause and without prejudice to the
requirement of notice under Article 283 of this Code, the employer
shall furnish the worker whose employment is sought to be
terminated a written notice containing a statement of the cause for
termination and shall afford the latter ample opportunity to be
heard and to defend himself with the assistance of his
representative, if he so desires, in accordance with company rules
and regulations promulgated pursuant to guidelines set by the
Department of Labor and Employment.
It is implemented by Rule XXIII of the Implementing Rules of Book V of
the Labor Code, which provides:
Section 2. Standards of due process; requirements of notice. - x x
x.
I. For termination of employment based on just causes as defined
in Article 282 of the Code:
(a) A written notice served on the employee specifying the ground
or grounds for termination, and giving to said employee
reasonable opportunity within which to explain his side;
(b) A hearing or conference during which the employee concerned,
with the assistance of counsel if the employee so desires, is given
opportunity to respond to the charge, present his evidence or rebut
the evidence presented against him; and
(c) A written notice of termination served on the employee
indicating that upon due consideration of all the circumstances,
grounds have been established to justify his termination. x x x.
Respondent ABC did not afford complainant nor complied with the twonotice rule under the Labor Code. She was not served with two (2) written notices.
She was not informed of the violation, if any, she committed, which would entitle
her to present her case and refute the allegations. Instead s simply an giving her the
opportunity to be heard and explain ones side, which is the heart of procedural due
process in administrative proceeding, she was dismissed outright without any
investigation.

Complainant therefore was illegally dismissed by respondent for the latter

grossly failed to faithfully comply with all the procedural requirements.
Although Respondent ABC has every right under the Labor Code to dismiss
employees under authorized and just causes, this cannot be done without
compliance to the rules and regulations found in the Labor Code.

B.) Complainant was dismissed on discriminatory grounds enshrined under

the Labor Code and Republic Act 9710 also known as "Magna Carta of
Women."

The Labor Code provides that it shall be prohibited for any employer to
dismiss an employee on account of her pregnancy. Thus Art. 137 of the Labor
Code stipulates the following:
"Prohibited Acts:
1. To deny any woman employee the benefits provided for in this
Chapter or to discharge any woman employed by him for the
purpose of preventing her from enjoying any of the benefits
provided under this Code.
2. To discharge such woman on account of her pregnancy, or
while on leave or in confinement due to her pregnancy.
3. To discharge or refuse the admission of such woman upon
returning to her work for fear that she may again be
pregnant."

The Labor Code further provides under Art. 133 the Maternity leave
benefits, which states that:
"1. Every employer shall grant to any pregnant woman
employee who has rendered an aggregate service of at least
six (6) months for the last twelve (12) months, maternity leave
of at least two (2) weeks prior to the expected date of delivery
and another four (4) weeks after normal delivery or abortion
with full pay based on her regular or average weekly wages.
The employer may require from any woman employee
applying for maternity leave the production of a medical
certificate stating that delivery will probably take place
within two weeks.

2. The maternity leave shall be extended without pay on

account of illness medically certified to arise out of the
pregnancy, delivery, abortion or miscarriage, which renders
the woman unfit for work, unless she has earned unused leave
credits from which such extended leave may be charged.

3. The maternity leave provided in this Article shall be paid

by the employer only for the first four (4) deliveries by a
woman employee after the effectivity of this Code."

Further, Section 1 General Statement on Coverage under Rule XIII of Book

III of the Implementing Rules and Regulation of the Labor Code states that:
"This Rule shall apply to all employers whether operating for profit or not,
including educational, religious and charitable institutions, except to the
Government and to government-owned or -controlled corporations and to
employers of household helpers and persons in their personal service
insofar as such workers are concerned"

Further, RA 9710 known as The Magna Carta of Women defines

"Discrimination Against Women" as:
"Any gender-based distinction, exclusion, or restriction which has
the effect or purpose of impairing or nullifying the recognition,
enjoyment, or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social,
cultural, civil, or any other field. It includes any act or omission,
including by law; policy, administrative measure, or practice, that
directly or indirectly excludes or restricts women in the recognition
and promotion of their rights and their access to and enjoyment of
opportunities, benefits, or privileges."
Also provided under Section 10 of the same law is the following:
" Section 10. Women Affected by Disasters, Calamities, and
Other Crisis Situations. -Women have the right to protection and
security in times of disasters, calamities, and other crisis situations
especially in all phases of relief, recovery, rehabilitation, and
construction efforts. The State shall provide for immediate
humanitarian assistance, allocation of resources, and early
resettlement, if necessary.. Responses to disaster situations shall
include the provision of services, such as psychosocial support,
livelihood support, education, psychological health, and
comprehensive health services, including protection during
pregnancy."

When respondent dismissed complainant while she was five-months

pregnant, the former violated the Labor Code prohibiting discriminatory acts
against pregnant women and Magna Carta of Women specifically Section 10 that
affords protection for women under "Other Crisis Situations." Therefore, the
dismissal of the complainant, while she is expecting to have her first child is a
direct violation of an express prohibition of the laws above-mentioned.

C.) Complainant is entitled to her money claims: overtime pay; 13th month
pay; night shift differential; regular holiday pay.
The complainant is entitled to the payment of overtime pay,13th month pay,
night shift differential and regular holiday pay as stipulated in the employment
contract. The employment contract is attached herein as annexed A.
In Engineering Equipment, Inc. v Minister of Labor, the Supreme Court
ruled that the employer and employee may stipulate in the employment contract
that the compensation includes built-in overtime pay, as well as other benefits so
long as it does not amount to non-diminution of benefits, which is well applicable
in the case at hand, as although complainant is a managerial employee, who is not
covered under Article 82 of the Labor Code, her employment contract entitles her
to receive the benefits prayed for in this position paper.
Furthermore, the payment of such benefits is a voluntary act of the company
that has ripened into company practice. In fact, respondent corporation has
continuously paid complainant above-mentioned benefits since 2010 , as well as
other managerial employees.
In the case of Davao Fruits Corporation v. Associated Labor Unions et al,
as decided by the Supreme Court, the employer, from 1975 to 1981, freely and
continuously included in the computation of the 13th month pay those items that
were expressly excluded by the law. The Supreme Court have held that this act
which is favourable to the employees though not conforming to law, has ripened
into a practice and therefore can no longer be withdrawn, reduced, diminished,
discontinued or eliminated.
Applying the Davao Fruits Corporation case, Complainant is entitled to the
payment of benefits claimed for as it has ripened into a company practice, albeit her
position as a general manager under the employment contract.

PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of this
Honorable Office to grant Complainant:
1. Payment of overtime pay, 13th month pay, night shift differential and
regular holiday pay;
2. Separation pay in lieu of reinstatement including backwages and maternal
leave benefits;
3. Award of damages and Attorneys fees;

Other reliefs that are just and equitable are likewise prayed for.
Respectfully submitted. Cebu City, Philippines, September 3,2016.

CHARISSE URSAL
Counsel for Complainant
Attorneys Roll No. 67804
IBP No. 876490/2-11-12/Cebu
PTR No. 8966437/2-11-12/Cebu
MCLE Comp. Cert. No. III-0008897
Gov. M Roa St., Capitol Site, Cebu City
VERIFICATION

I,MARIA DELIMA, Filipino, of legal age, and with office address at

Philippine Long Distance Telephone Company Incorporated, Ramon Cojuangco
Building, Cebu City, after having been duly sworn to in accordance with law,
depose and state:
1. That I am the complainant in the instant case; and
2.That I have caused the preparation of the foregoing Position Paper,
have read the same and the contents thereof are true and correct to the best of my
personal knowledge and based on authentic records.
IN WITNESS WHEREOF, I have hereunto affixed my signature this
3 day of September 2016, in the City of Cebu, Philippines.
rd

MARIA DELIMA
Affiant
CTC No. 87690976
Cebu City/03/09/2016
SUBSCRIBED AND SWORN to before me this 3rd day of September
2016, in the City of Cebu, Philippines. Affiant exhibited to me his Community Tax
Certificate above-written.

MARICRIS COLINA
Notary Public
Until December 31, 2016
Notarial Commission No. 098-10
Roll No. 78998
IBP No. 67897564 : 1-11-11 : Cebu City
PTR No. 697578 : 1-11-11 : Cebu City
MCLE Exempt

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