You are on page 1of 6

Republic of the Philippines Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION


Regional Arbitration Branch No. V
Antipolo City

MELVIN GORILLA,
Complainant,

NLRC Case No. RAB-11-06-0068-2016

-versusFAIRFARREN MINIMART INC.,


Respondent.
x- - - - -- - - - - -- - - - - -- - - - -- - - - - x
POSITION PAPER
Complainant, through undersigned counsel, unto this Honorable
Office, most respectfully submit this Position Paper, and state that:
I
PREFARATORY STATEMENT
The Complainant in this case is MELVIN GORILLA, of legal
age, married, with post office address at No.6 Ferreiville Subdivision,
Brgy. Dalig, Antipolo City where he could be served with summons
and other legal processes of this Honorable Office.
The Respondent is FAIRFARREN MINIMART, a business
establishment owned by Carol Del Mundo and managed by Rory
1

Mendoza, with business address at San Ruis Ave. Antipolo City,


where the said establishment and representative could be served
with summons and other legal processes of this Honorable Office.
II
ANTECEDENT FACTS
The Complainant in this case is a member of the Centurion
Security Agency. He was employed by the respondent herein on
March 11, 2015 and has worked with them until February 29, 2016.
On February 28, 2016, complainant herein was on duty at 1pm
that day when he fell asleep at his post. He was woken by Fairfarren
Bakeshop's supervisor, Rory Mendoza, who shouted, putang ina mo,
di ka namin binabayaran para matulog, umuwi ka na. Despite his
apologies and insistence to stay and finish his duty, complainant was
forced to go home that day.
On February 29, 2016, complainant returned to the
establishment to start working again, but he was told by Rory
Mendoza to go back to his agency. Complainant then went to
Centurion Security Agency where he was instructed to float for the
mean time and wait for their call once they find a job for him. Since
then, Complainant was not able to receive his salary due to him for
the period of February 15-28, 2016. He was likewise not given his
separation pay.
As a result of the unjust termination of employment of the
Complainants by the Respondent, the former suffered mental
anguish, sleepless nights, wounded feelings, serious anxiety, and
social humiliation, especially concerning the daily sustenance of his
family.
In support of the foregoing allegations is the Affidavit of the
herein Complainant dated March 1, 2016 which is attached and made
integral part of this Position Paper as Annex B, as well as his
2

verified Complaint dated March 2, 2016 which is on the records of this


case.
III
ISSUES
1. WHETHER OR NOT THE COMPLAINANT WAS ILLEGALLY
DISMISSED AND WHETHER OR NOT THE
COMPLAINANT WAS AFFORDED THE PROCEDURAL
DUE PROCESS.
2. WHETHER OR NOT, THE RESPONDENT IS LIABLE TO
THE COMPLAINANT FOR NOMINAL DAMAGES AND
MORAL DAMAGES.
IV
DISCUSSION OF ISSUES
FIRST ISSUE: (Illegal Dismissal and Absence of Procedural Due
Process)
From the foregoing facts, it is clear that the dismissal of the
complainant was illegal thus, he should have been given his
separation pay as provided by law. Also, no procedural process was
accorded to him prior to his termination from service as he was given
no opportunity to explain his side.
Insofar as the procedural due process is concerned, Article 277 (b) of
the Labor Code specifically requires the employer to furnish the
worker or employee sought to be dismissed with two written notice,
i.e., a notice which apprises the employee of the particular acts or
omission for which his dismissal is sought, and a subsequent notice
which informs the employee of the employers decision to dismiss
3

him (Kiamco vs. NLRC, G.R. No. 129449, June 29, 1999).
In this instant case, clearly the complainant was not afforded of the
procedural due process accorded by law because he was simply
instructed go home and then go back to the security agency without
being advised as to why he was terminated.
In addition, it must be borne in mind that the basic principle in
termination cases is that the burden of proof rests upon the employer
to show that the dismissal is for just and valid cause, and failure to do
so would necessarily mean that the dismissal was not justified and,
therefore, was illegal [Polymedic General Hospital v. NLRC, G.R. No.
64190, January 31, 1985, 134 SCRA 420; and also Article 277 of the
Labor Code].
SECOND ISSUE: (NOMINAL DAMAGES, EXEMPLARY DAMAGES
AND MORAL DAMAGES)
The Respondent has clearly violated the statutory right of the
herein complainant, i.e. his right to be furnished of the two written
notice prior to dismissal as specifically provided by Article 277 (b) of
the Labor Code of the Philippines. In a case like this, the proper
award is nominal damages under the Civil Code as it is aimed to
vindicate the right to procedural due process violated by the
employer. In the case of Jenny Agabon and Virgilio Agabon vs.
NLRC (G.R. No. 158693, November 17, 2004), for lack of statutory
due process, the employer was ordered to indemnify the employee
for the violation of his statutory right which warrants the indemnity in
the form of nominal damages.
Likewise the herein Complainant is entitled to moral damages
because the dismissal of the complainant was attended by bad faith
of constitutive of an act oppressive to labor. In the case of Lim vs.
National Labor Relations Commission [GR No. 79907 March 16,
1989], the Supreme Court upheld the award of moral as well as
exemplary damages in view of the bad faith attendant to the
4

treatment of the employee.


In the instant case, there is no other plausible explanation for
the acts of the Respondent of the manner wherein the Complainant
was deprived of his employment except bad faith.
V
PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of
this Honorable Labor Arbiter, that decision be rendered, to wit:
1. Declaring the termination of the herein Complainant as illegal
and further, ordering Respondent to pay unto the Complainant
the separation pay due to him.
2. Ordering the Respondent to pay the Complainant the salary
due to him for the period of February 15-28, 2016.
3. Furthermore, it is likewise prayed unto the Honorable Labor
Arbiter to order the Respondent to pay the herein Complainant
nominal damages in the amount of Php 15,000.00 for not
affording to the complainant the procedural due process, the
amount of Php 100,000.00 as moral damages and the amount
of Php 30,000.00 as exemplary damages.
Other reliefs just and equitable under the premises are also prayed
for.

RESPECTFULLY SUBMITTED.
Tacloban City, February 24, 2011.

ATTY. MICHAEL CAESAR


(Counsel for the Complainant)
Ceasar-Garcia Law Offices
3rd flr. Libra Bldg.
Interior Blvd., Antipolo City
Roll of Attorneys No. 09745
IBP No. 57612 (Lifetime)
MCLE Compliance No. III - 0017029
(October 5, 2014)
Copy furnished: (by Registered Mail)
Carol Del Mundo
Fairfarren Minimart
San Ruis Ave.
Antipolo City

Registry Receipt No._________


Date Mailed:_______________