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Republic of the Philippines


Regional Arbitration Branch No. VI
Iloilo City





COMPLAINANT through the undersigned counsel and unto this

Honorable Labor Arbitration Office, most respectfully states:

1. Before digging into the arguments, the complainant first of all vehemently
opposes the admission of certain documentary evidence submitted by the
respondents together with their Position Paper. First its ANNEX 7 for
being unfairly altered to make it appear that it was signed by the parties.
Fortunately for the complainant, it was manifested and placed on record
during the December 24, 2016 NLRC hearing that the above-mentioned
document is undated and unsigned. (Please see the hereto attached copy of
the minutes of the December 24, 2016 NLRC hearing as Annex A);

2. During the pre-marking of exhibits before the NLRC, respondents through

counsel pre-marked as their Exhibit 4 the Clarificatory Conference Minutes
of Meeting which they now attached as ANNEX 7 of their Position Paper.
It is identical to the Annex G of the complainant which was pre-marked as
Exhibit G. It was undated and unsigned. But to the complainants
surprise, the very same document now purportedly bears the signatures of
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Dou Ann Martino, Bernardo Turno and the complainant. The complainant
fervently denies having signed the document as he never agreed to the
statements therein. The signature appearing in respondents ANNEX 6
purportedly of Christian Tayao is obviously different from his real signature.
(Please see Annex B to compare Christian Tayaos signature in his UMID
vis--vis that in the assailed document);

3. Complainant likewise opposes the admission of many other documents

submitted by the respondent which they did not present during the marking
of exhibits before the NLRC on the hearing for the purpose. PMFTC has the
greater advantage vis--vis the complainant in terms of securing documents
related to the case because it has control over all records and has the copies
of their own policies. But now the respondents produced new documents to
the complainants surprise, namely:

Policy Employee Conduct (Annex 1)

Enough is Enough (Annex 2)
Implementation of the Updated DSD Credit Standards SAS
(Annex 3)
Standard Operating Procedure and Service Level Agreement,
Credit Term Deviation (Annex 3-A)
Standard Operating Procedure and Service Level Agreement,
Overdue Deviation (Annex 3-B)
Notice of Conference (Annex 6)

4. Like the Pre-trial, the NLRC hearing on December 24, 2016 which was
attended by both counsels of the parties sought to avoid unfair surprises to
either sides through presentation of evidence that were not marked. The
complainant does not contest the admission of other documents obtained
after the mentioned hearing, but only those which, if actually existed, must
have already been at the possession of the respondents from the very onset
of the case. Thus they have no excuse why they were not offered for
marking during the hearing;

5. Nevertheless, the said documents will inevitably still be included in the

herein detailed responses of the complainant to the respondents Position

6. From their PREFATORY statements, up to their FACTS, and to their

ARGUMENTS AND DISCUSSIONS, the respondents placed so much and
repeated emphasis on their Campaign against counterfeit and illicit

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cigarette trade and on Risk of revenue loss due to illicit cigarette trade.
The respondents even talked about risk of significant revenue loss and
unrealized profits, lost tax revenue for the government and increased
health hazards to the public;

7. The complainant however submits that all these matters have nothing to do
with his case. He did not sell any counterfeit product. He was not into an
illegal trade of cigarettes. None of his acts cost even a single centavo loss to
the company, nor was there any showing that his acts could cause risk of loss
or damage to the company. More so, his acts have nothing to do with
government taxes because his transactions were accordingly covered by
receipts. And there was no health risk he added to the public to what the
companys products could already create;

8. The respondents also repeatedly quoted the case of Hormillosa vs Coca

Cola Bottlers in trying to justify the wrongful dismissal of the herein
complainant. It is submitted however that though the said case has some sort
of similarities with the instant case in that the complainants are both
salesmen, the essential facts in the two cases so differ from each other that
the ruling in Hormillosa cannot be made applicable to the instant case;

9. For one, Hormillosas main offense was the making of cash transactions
appear to be credit transactions, thus he received money from customers but
failed to remit the same to the company. He also lied to a buyer claiming that
the products he sold were part of market development program product
assistance. He also forged the signature of one customer;

10.But this is not so in the case of Christian Tayao. He did not keep to himself
any amount of money from the sales. Everything he got from the
transactions were timely and duly remitted to the company. He also did not
misrepresent anything to any customer. And he never forged anyones
signature. In some receipts, though it was not really the store owners who
personally signed, at least it was signed by their representatives (as
acknowledged by the respondents in their position paper, for Chasty Store
the receipt was signed by the owners helper, for Mamas Store the receipt
was signed by Peter who was a friend of the owner);

11.Not only that, in Hormillosas case, he was given several chances to be heard
but he did not attend the company hearings or respond to them, until after he
filed a ULP case against his company. He did not send a written explanation
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but a letter merely informing the company about the ULP case, thus he was
declared to have dealt with the company in bad faith;

12.Again, this is so different from Christian Tayaos case. Christian, right after
receiving the NTE from his manager responded to it by submitting his
personal handwritten explanation. This is despite the fact that the NTE was
sent to him only through an email. And even at that point when Christian
Tayao did not have any chance to orchestrate a story for his defense, nor was
he advised by a lawyer, his responses have always been consistent, true and
in good faith;

13.Opposite to the cited case, it was rather PMFTC or its manger who dealt
with Christian Tayao in bad faith. As discussed in his Position Paper,
Christian was not given a chance at all to seek assistance from his counsel
for the so called hearing of his case, as he was notified thereof a few hours
(at late night) before its schedule, merely through a text message. The
hearing was also conducted not for Christian to be heard, but to elicit
admissions from the poor employee who did not hesitate to make certain
admissions, having no idea that his compliance in good faith with their
supervisors instructions and their areas usual practice would be taken
harshly against him;

14.Respondents presented as their ANNEX 6 a Notice of Conference

purportedly made to notify the complainant of the inter-company hearing of
his case. The said document though shows that it was not received by
Christian Tayao, being unsigned in the received by portion thereof. It
merely shows that the letter was drafted in August 9, 2016 and the hearing
was on the following day. But even assuming without admitting that the
notice was received by the complainant, still the at most 24-hour notice
period was not enough for the latter to be able to secure assistance from a
counsel. Hence, he was indeed deprived of his right to do so;

15.The respondents likewise repeatedly stressed the argument that the herein
complainant held a position of trust and confidence because he was
charged with the care and custody of the employers money and property.
Assuming without admitting that he did, still it will not cure the illegality of
his dismissal. He was faithful in handling the money and the property that
was temporarily given to his care. In fact, he did not steal or use for his own
benefit either money or property of any amount or value belonging to the

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company. The respondents themselves admitted that no pecuniary loss was
incurred by PMFTC because of the complainant;

16. Nevertheless, it is submitted that the herein complainant was not holding a
position of trust and confidence. This is clearly shown by the fact that they
were assigned with immediate supervisors who regularly monitored their
transactions and to whom they reported everything. Moreover, the
respondents themselves stated that they have a department called Internal
Controls (IC) who regularly audited the sales and checks into the salesmens
transactions. These acts of the company negate the concept of trust and

17.Also, respondents Position Paper highlights complainants entering into

transactions with buyers who are not Company-authorized customers.
But it fails to establish who are the authorized customers and who are not,
and if this distinction was clearly made known to sales agents like the
complainant. Products of PMFTC (cigarettes) are intended for public
consumptiongenerally sellable to anyone and anywhere. There is nothing
in its face that makes one customer authorized or unauthorized, unless the
company makes a clear policy on the matter and the same was made known
to the employee;

18.Christian Tayao has a list of regular customers to whom he regularly

delivered stocks. But he was made to believe that it is acceptable to cater to
walk-in clients because such has been their usual practice in their area of
sales since he joined the company in 2013 and as per instructions of his
immediate supervisors (both the old and the new supervisors). Salesmen like
herein complainant are not directly given copy of company policies. They
rely mainly on their supervisors for instructions and guidance;

19.In fact, the respondents failed to show that the complainant has ever received
a copy or have at least read and understood those policies quoted in their
Position Paper, if such actually existed as they claimed. The Enough is
Enough Memorandum, Implementation of the Updated DSD Credit
Standards, Standard Operating Procedure and Service Level Agreement
Credit Term Deviation and the Standard Operating Procedure and Service
Level AgreementOverdue Deviation stated by the respondents in their
Position Paper were not even mentioned in the NTE and the Notice to
Dismiss or at any time prior to the Position Paper. Said policies were not
heard of by the complainant;

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20.Besides, perusal of the purported company policies would show that they
were never addressed to the salesmen. The repeatedly quoted Memorandum
entitled ENOUGH IS ENOUGH! for example was directed only to Sales
Office Managers, Area Sales Directors, Area Sales Managers, Area Sales
Finance Managers, Manager Finance Controlling, Manager Internal
Controls. The same is true with the other mentioned company Memos. And
so Christian Tayao who was not aware of certain rules cannot be said to have
violated the same, more so cannot be made to face a very harsh consequence
for his non-compliance thereto;

21.Christian Tayao only learned that it was prohibited to accept walk-in

customers after receiving the NTE. That is when he humbly explained that
Ang nilabag ko lang sa policy ng kompanya ay pagbenta ko sa walk-in
customer pero lahat cash transaction at wala naman akong masamang
hangarin as quoted by the respondents in Par. 17 of their Position Paper.
The complainants act of admitting a fault that he has just learned is rather
commendable. Considering that it was the very first time the matter was
pointed out to him, the company must have at most given him warning or
suspension, especially that he claimed good faith in doing the acts;

22.Parts of respondents Position Paper also reinforce the complainants claim

that the company did not really intend to hear him but to squeeze out
admissions from him;

23.In Par. 20.15. of the respondents Position Paper, they acknowledged the
complainants explanation as to why the signature in the invoice for Chasty
Store was not of its owner, Gemma. He explained that it was Gemmas
helper who signed it. But even this was taken against the poor employee,
saying Tellinglycomplainant again admitted that it was the helper who
purchased from him and not the owner. Then respondents started counting
it as violations, to wit: Three (3) counts of issuing an invoice in the name of
the customer who was not the actual party sold to and Three (3) counts of
falsifying, altering or tampering with Company records resulting to eight
(6) violations! (Par. 20.16.);

24.The preceding discussion would only show that the company was fault-
finding the complainant. It is so incredible to expect the store owners
themselves to be present at all times in their establishments during stock
deliveries. Besides, the helper can be considered as the agent of the store
owner in purchasing goods for the store. There is nothing evil or malicious
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to Christian Tayaos act of allowing the helper to sign the invoice for Chasty
Store in behalf of the owner Gemma;

25.The same was true in the next paragraphs of the respondents Position Paper
where they discussed about the Mama Store, wherein Peter, the friend of the
store owner purchased in the latters behalf. Since the transaction happened
four (4) times, this was again taken as Four (4) counts of issuing an invoice
in the name of the customer who was not the actual party sold to and
Four (4) counts of falsifying, altering or tampering with Company
records resulting to eight (8) violations! (Par.20.20.);

26.As to transactions made with Doodz and Babes Store and Big Bite Store
(Par.20.1. to 20.11.) Christian indeed admitted that he sold to walk-in
customers and named the invoice after Doodz and Babes Store with the
owners approval. Again, this is in consonance with the complainants claim
that he thought this was acceptable because it was allowed by their
supervisors. In fact, it was their supervisors who taught them what to do
with the invoice when they sell products to walk-ins. The reason why
Christian never hesitated to admit them is because he did it in good faith.
His belief might have been wrong but he does not deserve a very harsh
punishment of dismissal, especially considering the amounts involved in the
transactions were very minimal (P300.00, P390.00, P7,635.00 and
P3,705.00) and the entire amount was duly and timely remitted;

27. As to transactions with Gheian Store (Par. 20.21. to 20.27.), respondents

faulted the complainant for extending another credit to the store while its
former credit has not yet been paid. This matter was explained in the
complainants Position Position Paper by quoting the companys rule as

There will be no double and triple invoicing except for

those approved by HQ (i.e holidays). However, should
the VSM extended an unapproved double/triple
booking and goes overdue as well as customer fails to
settle, the VSM is 100% liable. (Last bullet point in
the PMFTC Important Reminders from Sales
Management and Sales Finance Visayas)

28.In other words, the extension of double credit, though considered prohibited,
does not carry with it a penalty other than shifting the risk to the sales person
in case the same results to a loss as when the customer fails to pay. The six
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(6) resulting infractions mentioned by the respondents due to the extension
of credits/double invoicing cannot be considered because as previously
stated, the updates on the company rules embodied by a so-called DSD 202,
DSD 204 and Enough is Enough Memorandum were not known to the
complainant, nor has he ever heard of them;

29.Regarding the ground of SERIOUS MISCONDUCT, complainant adopts the

quoted definition of serious misconduct in 36th paragraph of respondents
Position Paper. Misconduct must be serious in a sense that it must be of
such grave and aggravated character and not merely trivial or
unimportant. Complainant submits that this very definition would show
that any of his acts cannot be taken as serious misconduct because he has not
done anything grave or aggravated;

30.The case of NLRC vs. Salgarino1 gives a more profound and elaborated
definition of serious misconduct as ground for dismissal:

Misconduct is defined as improper or wrong conduct. It

is the transgression of some established and definite rule
of action, a forbidden act, a dereliction of duty, willful in
character and implies wrongful intent and not mere error
of judgment. The misconduct to be serious within the
meaning of the act must be of such a grave and
aggravated character and not merely trivial or

In order to constitute serious misconduct which will

warrant the dismissal of an employee under paragraph (a)
of Article 282 of the Labor Code, it is not sufficient that
the act or conduct complained of has violated some
established rules or policies. It is equally important and
required that the act or conduct must have been
performed with wrongful intent.
31.The Supreme Court in the quoted case declared the dismissal of Salgarino as
illegal for lack of ulterior motive or immoral consideration on her part to
perform the assailed acts.

32.The same is true in the instant case. It was never alleged or established that
Christian Tayao has wrongful intent in doing what he did, or that he had
ulterior motive or has received immoral considerations. In all his
1 G.R. No. 164376, July 31, 2006.

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transactions, the company has profited (at least pecuniarily) and nobody was
prejudiced or damaged. It was never shown nor alleged that Christian Tayao
did the acts to profit himself or to damage anyone;

33.The complainant also submits that the implication in Par.39 of the Position
Paper of the respondent that his service was patently inimical to his
employers business is totally baseless. There was not a single definite
evidence or even clear statement to show how Christian Tayaos service has
been inimical to PMFTC;

34.As to the ground of WILLFUL DISOBEDIENCE discussed in Par. 40 to 44

of the respondents Position Paper, complainant submits that his case does
not fall into the definition of willful disobedience quoted by the respondents,
to wit:

a) The employees assailed conduct must have been willful

or intentional, the willfulness being characterized by a
wrongful and perverse attitude.

b) The order violated must have beenmade known to the


35. As discussed in the foregoing and in the complainants Position Paper, and
even based on the respondents Position Paper, the complainants assailed
acts were not characterized by a wrongful and perverse attitude and the
allegedly violated rules were not clearly communicated to him;

36. Regarding the ground LOSS OF TRUST AND CONFIDENCE discussed in

Par. 45 to 47, the complainant reiterates his earlier statements that he has not
breached any trust and confidence reposed to him by the company, as he has
not stolen, misappropriated or benefited himself from the money or property
of the company that were on his hands. He has been transparent in all his
transactions, in that, his supervisors were aware of his sales conducts. His
honesty and innocence is also reflected when, even after being given an
NTE, he did not lie to his superiors about anything. In fact, the evidence that
was used against him was his own innocent admissions. He admitted to the
commission of certain assailed acts but with a humble explanation that he
was in good faith;

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37.Notwithstanding, complainant does not agree with the respondents
argument that he occupies a position of trust and confidence. Their claim is
contrary to the fact that they assigned an immediate supervisor over the
complainant and salesmen like him to whom they report the conduct of their
business. They also have to timely remit the money they collected from the
sales and submit invoices. Moreover, the respondents also created the
Internal Controls (IC) department to regularly audit the sales and to verify
the salesmens transactions;

38.The repeated ruling of the Supreme Court is worth mentioning in the instant
case, to wit:

More importantly, we have repeatedly held that loss of

confidence should not be simulated in order to justify
what would otherwise be, under the provisions of law, an
illegal dismissal. It should not be used as a subterfuge for
causes which are illegal, improper and unjustified. It
must be genuine, not a mere afterthought to justify an
earlier action taken in bad faith.2


paragraphs 48 to 54 of the Position Paper of the respondents, the
complainant submits that the purported compliance with procedural due
process was only a drama, intended to cover the illegality of the
complainants dismissal;

40.The respondents stated that they served a Notice to Explain to Christian

Tayao on July 17, 2016 and he submitted his personal handwritten
explanation on July 18, 2016 which is only a day after the service. That is
because the NTE which was dated July 13, 2016 was also sent ahead to
Christian Tayao through his email which he was not able to see right away
having uninformed about it. Counting five (5) days from July 13, the simple-
minded salesman felt compelled to submit his written explanation right away
on July 18, even though he only learned about the NTE on July 17,
otherwise his right to present evidence would be considered waived;

41.Not only was the service of NTE orchestrated in a way that complainant
would not have chance to seek proper advice and submit an intelligible
2 Mabeza v. National Labor Relations Commission, citing General Bank and
Trust Co. vs. Court of Appeals, 135 SCRA 569, 578 (1985).

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answer; his hearing was also set in such a short notice. His hearing was set
on August 10, 2016 but the notice was given through a late night text
message (10:29 PM) from his manager on August 9, 2016. The respondents
presented in their Position Paper a Notice of Conference which
complainant never received. Nonetheless, even the notice was dated August
9, 2016. Meaning it was drafted only one day ahead of the scheduled
hearing. The period is too short that Christian Tayao had no chance at all to
seek assistance from a counsel;

42.What was worse about the so-called Clarificatory Conference was that it
was conducted without the presence of an HR personnel. It was conducted
by the manager Bernardo Turno, Jr. who had grudges against Christian
Tayao (as detailed in his Position Paper) and the new sales supervisor
Jennifer Hope Ngo who was the very person who instructed them to accept
walk-ins. There was definitely great intimidation on the part of the humble
employee. Besides, he could not point to his supervisors face that she was
actually the one who taught them wrongfully;

43. The company failed to appreciate the idea that all instructions directed to
salesmen come through the supervisors and all reports go back to the
company through said supervisors. So if the company was fair in its dealings
with the complainant, the latters immediate supervisor must have also been
subjected to investigation being responsible over him. But instead, the
supervisor was even allowed to participate in the hearing as one of the
interrogators. This supervisor now shifts all the blame to his poor sales
agent in order to cover her fault;

44.The supposedly-clarificatory hearing turned out to be an interrogation used

by the company to squeeze out admissions from the complainant. After
successfully making him admit to certain factual information, the
interrogators then came up with the so-called Minutes of the Clarificatory
Conference, which according to Christian Tayao contained distorted facts
and exaggerated admissions. And that is why he refused to sign it;

45.Even until the Notice of Dismissal was already served to him, Christian
Tayao was still at a loss about why he was being dismissed. That is because
he had no clear idea what wrong he committed. The NTE mentioned so
many violated policies without stating which act of Christian constituted
which particular violation. The NTE even mentioned offenses like theft,
misappropriating or converting company funds, money or property for
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personal gain and benefit, tampering with company records, etc. etc.
Christian had no idea how or when he possibly committed them and which
of his actions were being assailed;

46.Christian asked for the re-investigation of his case several times as discussed
and proved in his Position Paper. But the company did not pay any amount
of attention to his plea. How then can respondents claim that PMFTC gave
the Complainant more than enough opportunity to be heard in compliance
with the requirements of due process? There was no real notice, no real
hearing, no real chance given to prepare his defense, everything was just a

47.Contrary to the claim of respondents, complainant is definitely entitled to all

the monetary claims he prays for in his Position Paper;

48.The respondents have no basis in stating that Christian has already enjoyed
vacation leaves of more than five (5) days a year. Complainant submits that
he has not because they were hardly allowed to leave from work due to their
busy schedules. PMFTC must have submitted proof of their claim about
Christians leave since the company is the keeper of records. In the absence
of proof to the contrary, the presumption is that Christian is entitled to the
benefits granted him by the Labor laws;

49.As discussed in his Position Paper and in the foregoing, complainant insists
on his right to claim FULL BACKWAGES, SEPARATION PAY,
DAMAGES and ATTORNEYS FEES his dismissal being arbitrary,
malicious oppressive and was not done in accordance with the procedural
requirements of law;

50.Regarding complainants compensation, respondents merely mentioned the

monthly basic salary of P9,210.00 received by the former. But what they did
not mention is that the complainant on top of the basic pay, receives a daily
allowance of P240, productivity bonuses averaging to P25,000.00 monthly
and occasional sales incentives. (Please see the attached copy of
complainants latest 5 months pay slip marked as Annexes C and adjuncts
wherein he received P9,312 bonus at the least and P14,549.20 at the highest
for every 15 months work period);

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51.As to the discussions on Par. 68 to 72 of the respondents Position Paper, the
complainant submits that the natural persons named as respondents are
indeed sued as representatives of PMFTC. The complainant does not intend
to make said individuals personally liable for his illegal dismissal, rather the
company which they represent, without prejudice to the Honorable Arbiters
findings to the contrary, especially with regards to the manager
BERNARDO TURNO JR. who was obviously in bad faith and has ill-
motive in orchestrating and carrying out the dismissal of the complainant.

WHEREFORE, premises considered, it is hereby respectfully prayed

that the foregoing Reply to Respondents Position Paper be given due
credence and consideration and the reliefs prayed for by the Complainant in
his Position Paper be accordingly granted.

Other reliefs just and equitable under the premises are also prayed for.


Kalibo, Aklan, Philippines, February 17, 2017.

Copy furnished: (by Registered Mail)

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