Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. XI
Davao City

GIL P. FLORENSOS, JR. NLRC RAB-XI-10-01075-18

Complainant,

-versus-

DAVAO DEL NORTE FOR: ILLEGAL

ELECTRIC COOPERATIVE DISMISSALWITH MONEY
(DANECO) AND CLAIMS
ENGR. JEROLD M. OSORIO
-GENERAL MANAGER,
Respondents.

X ---------------------------------------- X

POSITION PAPER

COMES NOW, Complainant, unto this Honorable Office, most

respectfully submit this Position Paper for consideration, as follows:

THE PARTIES

1. Complainant, GIL P. FLORENSOS, JR., of legal age, Filipino,

may be served with notices, orders, writs and processes of this
Honorable Office at the Office of Councilor Pamela A. Librado-
Morata, 2/F, Room 203, Sangguniang Panlungsod Building, San
Pedro Street, Davao City, Philippines.

2. Respondent DAVAO DEL NORTE ELECTRIC COOPERATIVE

(DANECO), is a non-stock and non-profit cooperative located at
Tagum City, Davao del Norte.

3. Respondent, ENGR. JEROLD M. OSORIO is of legal age, the

general manager of Davao del Norte Electric Coop. and may be
served with notices, orders, writs and processes of this
Honorable Office at the office of the immediately mentioned
Respondent. He is impleaded as one of the Respondents for
being the general manager of Gil P. Florensos, Jr..

4. All parties may sue and be sued.

FACTS OF THE CASE

5. Complainant, GIL P. FLORENSOS, JR., was recruited by

Respondent DAVAO DEL NORTE ELECTRIC COOPERATIVE
 (DANECO) and admitted for employment to work since June 24,
1991. He was promoted to he position of Institutional Service
Department Manager on May 16, 2013. Hereto attached as
Annex “A” is the copy of Complainant’ employee identification
card and Annex “B” is the copy of Complainant’s Certificate of
Employment;

6. Complainant was a member of DANECO-CDA and was tasked

be part of the group to negotiate with DANECO-NEA to enter
into a compromise agreement for the benefit of DANECO-CDA,
however, the group failed to achieve their goal. One of the goal
of the negotiation is to prevent the displacement of the members
of DANECO-CDA.

7. Due to the failed negotiation, members of the DANECO-CDA

had a hard time performing their regular duties.

8. In 2019, Complainant did not regularly receive his salary nor

did he receive any of the benefits promised;

9. In the same year, due to the non-payment of salary despite

being industrious and devoted, Complainant suffered anxieties
and disheartenment thus, was forced to resign from his
treasured company due to its unbearable work environment;

10. The complainant wasted no time and filed appropriate action

to seek outright justice for himself. An illegal dismissal case
against Respondents was thereafter filed before the office of
NLRC-Davao after efforts to settle the parties proved futile.

ISSUE/S

WHETHER OR NOT RESPONDENTS ARE GUILTY OF

CONSTRUCTIVE DISMISSAL?

WHETHER OR NOT COMPLAINANT IS ENTITLED TO HER OTHER

MONETARY CLAIMS?

ARGUMENT AND DISCUSSIONS

Respondents are guilty of constructive dismissal.

In the case of MCMER CORPORATION, INC. VS NLRC, it

was defined that “constructive dismissal is a cessation of
work, because continued employment is rendered
impossible, unreasonable or unlikely; when there is a
demotion in rank or diminution in pay or both; or when a
clear discrimination, insensibility, or disdain by an
employer becomes unbearable to the employee.”

The test of constructive dismissal is whether a reasonable

person in the employee’s position would have felt compelled to
 give up his position under the circumstances. It is an act
amounting to dismissal but made to appear as if it were not,
constructive dismissal is, therefore, a dismissal in disguise. As
such, the law recognizes and resolves the situation in favor of
the employees in order to protect their rights and interests from
the coercive acts of the employer. In fact, the employee who is
constructively dismissed may be allowed to keep on coming to
work

After the foregoing facts, it’s clear that there was a constructive
dismissal because of the acts of the Respondent such as not paying
the Complainant in full but paid his other co-workers in full. These
are badges of constructive dismissal, since it is apparent that the
repeated power tripping and not paying the Complainant accordingly
as committed by the respondents to the complainant is an adverse
working environment rendering it impossible for the complainant to
continue working for his employer. The complainant could not have
given up a job that he has engaged for in twenty seven (27) years
unless it has become unbearable for him to stay therein. Indeed, the
complainant felt compelled to give up his employment.

Furthermore, in Siemens Philippines, Inc. vs. Domingo, the

court have declared that “an employee who is forced to surrender
his position through the employer’s unfair or unreasonable acts
is deemed to have been illegally terminated and such
termination is deemed to be involuntary. Constructive dismissal
does not always involve forthright dismissal or diminution in
rank, compensation, benefit and privileges. There may be
constructive dismissal if an act of clear discrimination,
insensibility, or disdain by an employer becomes so unbearable
on the part of the employee that it could foreclose any choice by
him except to forego his continued employment. (Emphasis
supplied)

Lastly, in the case of Gan vs. Galderma Philippines, the court

held that “There is involuntary resignation due to the harsh,
hostile, and unfavorable conditions set by the employer. The test
of constructive dismissal is whether a reasonable person in the
employee's position would have felt compelled to give up his
employment/position under the circumstances.”

Based on the foregoing, there was indeed, an illegal dismissal.

II. Complainant is Entitled to His Other Monetary Claims.

1. Backwages, in general, are granted on grounds of equity for

earnings which a worker or employee has lost due to his illegal
dismissal. (Torillo vs. Leogardo, G.R. No. 77205, May 27, 1991)

2. Since the Complainant in the case at bar was illegally

dismissed, he is entitled to payment of backwages based on his
salary;
3. As illegally dismissed employee, Complainant is therefore
entitled to reinstatement without loss of seniority rights and
other privileges and to full back wages, inclusive of allowances,
plus other benefits or their monetary equivalent computed from
the time their compensation was withheld from him up to the
time of their actual reinstatement. If reinstatement is no longer
feasible, as when the relationship between the employer and
employee has become strained, payment of separation pay in
lieu of reinstatement is in order. (PERPETUAL HELP CREDIT
COOPERATIVE, INC. vs BENEDICTO FABURADA, et. al., G.R. No.
121948, October 8, 2001)

4. Moral damages, as defined in the Civil Code, is recoverable in

labor cases. Moral damages cannot be justified solely upon the
premise that the employer fired his employee without just cause
or due process. Additional facts must be pleaded and proven to
warrant the grant of moral damages under the Civil Code, these
being, to repeat, that the act of dismissal was attended by
bad faith or fraud, or was oppressive to labor, or done in a
manner contrary to moral, good customs, or public policy;
and of course, that social humiliation, wounded feelings,
great anxiety, etc. resulted therefrom. (NANCY S.
MONTINOLA vs PHILIPPINE AIRLINES, G.R. No. 198656,
SEPTEMBER 8, 2014)

5. Exemplary or corrective damages are imposed, by way of

example or correction for the public good, in addition to the
moral, temperate, liquidated or compensatory damages. They
are designed by our civil law to permit the courts to reshape
behavior that is socially deleterious in its consequence by
creating negative incentives or deterrents against such
behavior. In labor cases, the court may award exemplary
damages “if dismissal was effected in a wanton, oppressive
or malevolent manner.”(NANCY S. MONTINOLA vs PHILIPPINE
AIRLINES, G.R. No. 198656, SEPTEMBER 8, 2014)

6. In view of the foregoing complaint, the Complainant was

compelled to engage the services of herein counsel to protect his
rights. Also, Article 2208 of the Civil Code enumerates the
instances when attorney’s fees can be awarded, and one of
which is when exemplary damages are awarded. (NANCY S.
MONTINOLA vs PHILIPPINE AIRLINES, G.R. No. 198656,
SEPTEMBER 8, 2014)

7. Since Complainant is entitled to exemplary damages, he is also

entitled to an award of attorney’s fees and expenses of
litigation in the amount of 10% of the total amount of the
claims of Complainant.
 PRAYER

WHEREFORE, PREMISES CONSIDERED, it is most

respectfully prayed of this Honorable Office that a decision be
rendered ordering that the Complainant was illegally dismissed and
is entitled to all money claims mentioned above.

Other reliefs just and equitable are likewise prayed for.

July 29, 2019, Davao City, Philippines.

GIL P. FLORENSOS, JR.

Assisted by:

Office of Councilor Pamela A. Librado-Morata

2/F, Room 203, SP Building, San Pedro Street, Davao City

By

ATTY. DARWIN A. TENAJA

Counsel for Complainant
PTR No. OR No. 9734415/01-08-2018/Davao City
IBP No. 025685/12-28-2017/Davao City
Series No. 047-2016/Davao City
ROLL No. 57556 April 2010
MCLE Compliance No. V1-0009825/6-7-2018
Email add: darz_kant@yahoo.com

Copy furnished:

DAVAO DEL NORTE ELECTRIC COOP.

(DANECO) AND
ENGR. JEROLD M. OSORIO
-GENERAL MANAGER,
Respondents
C/O SATUR BAURA LAW OFFICES
2ND FLR., PEYRERAS BLDG.
PIONEER AVENUE, TAGUM CITY
Republic of the Philippines )
City of Davao ) S.S.
x---------------------------------x

VERIFICATION / CERTIFICATION

I, GIL P. FLORENSOS, JR., of legal age, Filipino and a resident

of Compostella Valley, Philippines, after having been sworn to in
accordance with law, hereby depose and say:

That I am the Complainant in the above-entitled case. I have

caused the preparation of the foregoing Position Paper. I have read
and understood the same and attest that all statements therein are
true and correct to the best of my personal knowledge and belief.

That I have not commenced any suit or proceeding in the

Supreme Court, or any other court, office or tribunal involving the
same issues and the same parties;

That in the event that I come to know of the pendency of any

suit or proceeding involving the same issues between the same
parties, I hereby undertake to inform this Honorable Office within five
days from knowledge thereof.

IN WITNESS WHEREOF, I have hereunto affixed my signature

this _________________ 2019 in Davao City, Philippines.

GIL P. FLORENSOS, JR.

Affiant

SUBSCRIBED AND SWORN to before me this ______________

2019 in Davao City, Philippines.

Doc. No. __________ ;

Page No. __________ ;
Book No. __________ ;
Series of 2019.