Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VIII
Tacloban City

SERGIO B. REYES, RAB VIII Case No. 01- 00005 - 11

Complainant,

-versus-

BURAUEN QUALITY BREAD

BAKESHOP,
Respondent,
x---------------------x

POSITION PAPER

COMPLAINANT by the undersigned counsel and unto this Honorable Labor

Arbitration Office, most respectfully submits this position paper and avers the
following to wit:

PREFATORY STATEMENT

The Complainant in this case is SERGIO B. REYES, of legal age, married, with
post office address at District 1, San Ramon St., Burauen, Leyte where he could be
served with summons and other legal processes of this Honorable Office.

The Respondent is BURAUEN QUALITY BREAD BAKESHOP, a business

establishment owned by Dyna and managed by Nilda A. Roca, with business address
at San Luis St., Burauen, Leyte, where the said establishment and representative
could be served with summons and other legal processes of this Honorable Office.

STATEMENT OF FACTS

The Complainant was formerly a regular employee as baker of Respondent

Burauen Quality Bread Bakeshop since January 1, 2003. The business undertaking
of the said Respondent is to sell bread to the public which Complainant prepares in
the premises of the Respondent. A copy of the Identification Card issued by the
Respondent to the Complainant is hereto attached as Annex A as proof of the
latters employment.

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 The Complainant worked for seven (7) days a week with no rest day or day-
off. He worked for 9 hours per day with no overtime pay. He was also made to
work on holidays without holiday/premium pay, with the exception of the following
holidays for which there was no work, to wit: Christmas day, New Years day, Good
Friday and on December 8, which is the fiesta of Burauen, Leyte.

The starting salary of Complainant was Php 100.00 per day. In the year 2005,
this was increased to Php 110.00 per day. Then, in 2006, his daily wage was
increased to Php 115.00. In the year 2007 near the month of December, his daily
wage was increased to Php 120.00 and in the year 2008, his daily wage was again
increased to Php 135.00. In the year 2009, his daily wage was again increased to
Php 140.00 and on January 2010, Complainants daily wage was again increased to
Php 150.00 until he was illegally terminated on December 6, 2010. All of the
aforementioned daily wage rates are below the prevailing minimum wage mandated
by law and given effect by the various applicable Wage Orders issued by the
Regional Tripartite Wages and Productivity Board VIII.

However, during paydays on the 15 th and on the last day of the month, the
Complainant was made to sign in a blank payroll consisting of two sheets of paper
and then in a separate paper containing the actual amount received as salary.
Hence, it is possible that the Respondent can produce a payroll signed by the
Complainant containing entries of wage which is at par or more than the prevailing
minimum wage as it is easy to fill in the desired entries of the amount of wage on
the blank but pre-signed payroll.

Likewise, Complainant was not given the yearly service incentive leave of five
days with pay in accordance to Article 95 of the Labor Code.

On December 6, 2010, Complainant was verbally terminated without due

process from his work by Dyna, the owner of the Burauen Quality Bread Bakeshop.

The Complainant was not given his 13 th month pay for the year 2010,
although in the previous years, he was given such every December. Likewise, his
salary for the period of December 1-6, 2010 was not given to him.

That as a result of the unjust termination of employment of the Complainants

by the Respondent, the former suffered mental anguish, sleepless nights, wounded

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feelings, serious anxiety, moral shock, 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 February 17, 2011 which is attached and made integral part of
this Position Paper as Annex B, as well as his verified Complaint dated January 10,
2011 which is on the records of this case.

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 COMPLAINANT IS ENTITLED TO SERVICE INCENTIVE

LEAVE PAY, HOLIDAY PAY, REST DAY PAY AND OVERTIME PAY.

3. WHETHER OR NOT THE COMPLAINANT WAS UNDERPAID.

4. WHETHER OR NOT, THE RESPONDENT IS LIABLE TO THE COMPLAINANT

FOR NOMINAL DAMAGES AND MORAL DAMAGES.

FIRST ISSUE: (Illegal Dismissal and no Procedural Due Process)

From the foregoing facts, it is clear that the dismissal of the complainant was
illegal thus he should be paid of his separation pay as provided by law. Also, no
procedural process was accorded to him prior to his termination from service.

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
him (Kiamco vs. NLRC, G.R. No. 129449, June 29, 1999).

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 In this instant case, clearly the complainant was not afforded of the
procedural due process accorded by law because he was simply verbally fired from
his employment.

In addition, (I)t 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: (SERVICE INCENTIVE LEAVE PAY, HOLIDAY PAY, REST DAY PAY,
OVERTIME PAY)

As to the entitlement of service incentive leave pay, rest day pay and holiday
pay premiums, the Complainant believes that he is entitled to the same just like all
other regular employees and as guaranteed by the Labor Code of the Philippines.
The complainant was deprived of his service incentive leave pay, holiday and rest
day premium pay.

The Labor Code provides for an 8-hour normal hours of work pursuant to Art.
83 thereof and work rendered in excess of 8 hours should be paid the overtime pay
in accordance with Art. 87. Inasmuch as the Complainant rendered 9 hours per day
of work, he is entitled to overtime pay.

THIRD ISSUE (UNDERPAYMENT OF SALARY)

The Complainant was underpaid throughout his employment with the

Respondent. For instance, when he was receiving a daily wage of Php 100.00 in
2004 when Wage Order No. RB VIII-11 took effect, the minimum daily wage
mandated was already Php 195.00. The subsequent daily wage increases granted to
the Complainant over the years was not able to reach the amount prescribed in the
aforementioned wage order which has since been superseded by subsequent wage
orders.

The Complainant respectfully submit that he should have been receiving the
daily minimum wage so provided by the wage orders issued by the Regional

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Tripartite Wages and Productivity Board VIII and considering that he has not
received the legal wage mandated by law, he should be paid the salary differential.

FIFTH ISSUE: (NOMINAL DAMAGES, EXEMPLARY DAMAGES AND MORAL DAMAGES)

Cleary, the Respondent 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 uphold the award of moral as well
as exemplary damages in view of the bad faith attendant to the treatment of the
employee.

In the instant case, there is no other plausible explanation for the acts (or its
conspicuous absence) of the Respondent of the manner wherein the Complainant
was deprived of his employment except bad faith.

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 separation
pay, the 13th month pay for the year 2010 and his salary for December 1
to 6, 2010.

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 2. Ordering the Respondent to pay to the Complainant the salary
differential due to him.

3. Ordering the Respondent to pay to the Complainant his SERVICE

INCENTIVE LEAVE PAY, HOLIDAY PAY, REST DAY PREMIUM PAY AND
OVERTIME PAY that were all deprived from him during his entire
employment with the Respondent.

4. 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 10,000.00 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 50,000.00 as exemplary damages.

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

RESPECTFULLY SUBMITTED.

Tacloban City, February 24, 2011.

The PUBLIC ATTORNEYS OFFICE
(Counsel for the Complainant)
Tacloban District Office
Bulwagan ng Katarungan
Magsaysay Blvd., Tacloban City

By:

NEMITZ F. NEGADO
Public Attorney II
Roll of Attorneys No. 40747
IBP No. 05045 (Lifetime)
MCLE Compliance No. III - 0017029
(June 2, 2010)

Copy furnished: (by Registered Mail)

NILDA L. ROCA Registry Receipt No._________

Burauen Quality Bread Bakeshop Date Mailed:_______________
San Luis Street
Burauen, Leyte

(VERIFICATION ON THE NEXT PAGE)