Republic of the Philippines

Department of Labor and Employment

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

ENGELBERT L. MADJUS, NLRC RAB-XI-10-01075-18

Complainant,

-versus-

DAVAO DEL NORTE ELECTRIC FOR: ILLEGAL DISMISSALWITH

COOPERATIVE (DANECO) AND MONEY 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, ENGELBERT L. MADJUS, of legal age, Filipino, may be

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

2. Respondent, Respondent DAVAO DEL NORTE ELECTRIC COOP.

(DANECO), is a non-stock and non-profit cooperative located at Tagum
City, Davao del Norte may be served with notices, orders, writs and
processes of this Honorable Office at the Satur Baura Law Offices, 2nd
Floor, Peyreras Building, Pioneer Avenue, Tagum City.
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 Jessie M. Binasbas, Jr.

4. All parties may sue and be sued.

FACTS OF THE CASE

1. Complainant, ENGELBERT L. MADJUS, was recruited by Respondent

DAVAO DEL NORTE ELECTRIC COOPERATIVE (DANECO) and
admitted for employment to work as a Meter Reader since November 19,
2012.

Hereto attached as Annex “A” is the copy of Complainant’ employee

identification card;

2. In Complainant’s more than six (6) years of working for DANECO,

complainant did not receive any benefits. Despite of this, complainant
stayed as he has no other means to provide for his family;

3. Despite the long years of service, complainant was not regularized. This
prompted the Complainant to file a complaint before the Department of
Labor and Employment (DOLE). DOLE ordered for the reinstatement and
regularization of herein complainant. However, notwithstanding
Complainant’s regularization, still he did not receive the benefits due to
him such as allowances, bonuses, motor rental, clothing allowance,
among others;

4. On 2018, due to the delay in the payment of salaries and unbearable work
environment, complainant suffered sleepless nights, anxieties, and
demotivation thus, was forced to resign from the company;

5. Aggrieved, complainants were forced to find refuge before the National

Labor Relations Commission (NLRC) after efforts to settle the parties
proved futile. Hence, this position paper.
 ISSUE/S

I. WHETHER OR NOT RESPONDENTS ARE GUILTY OF CONSTRUCTIVE

DISMISSAL?

II. WHETHER OR NOT COMPLAINANT IS ENTITLED TO HER OTHER

MONETARY CLAIMS?

ARGUMENT AND DISCUSSIONS

I. Respondents are guilty of constructive dismissal.

1. Constructive Dismissal is defined as quitting or cessation of work because

continued employment is rendered impossible, unreasonable or unlikely;
when there is a demotion in rank or a diminution of pay and other
benefits. It exists 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. (Gan v. Galderma Philippines, Inc., G.R. No. 177167 : January
17, 2013)

2. The Supreme Court futher explained in LOURDES C.RODRIGUEZ vs PARK

N RIDE INC.NICEST (PHILS) INC. that “there is constructive dismissal
when an employer's act of clear discrimination, insensibility or disdain
becomes so unbearable on the part of the employee so as to foreclose any
choice on his part except to resign from such employment. It exists where
there is involuntary resignation because of the harsh, hostile and
unfavorable conditions set by the employer. We have held that the
standard for constructive dismissal is "whether a reasonable
person in the employee's position would have felt compelled to give
up his employment under the circumstances." (Emphasis supplied)

3. It is clear from the above-stated facts that the complainant was

constructively dismissed by the showing of the clear discrimination in the
employment such that as compared to the complainant, the other
employees’ salaries were paid regularly. The act of the respondent to the
complainant resulted to an adverse working environment which became
so unbearable on the part of the employee that it would be a great burden
 upon him to continue his employment in the company despite his more
than eight (8) years as meter reader.

4. Futhermore, the court settled in the case of Siemens Philippines, Inc. v

Domingo 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)

5. Hence, based on the foregoing discussion, there is no doubt that the

complainant herein was constructively dismissed and thus, amounts to
illegal dismissal.

II. The Complainant is entitled to the Money 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. Where there is illegal dismissal, there should ordinarily be an order to

reinstate the employee. But the situation between the herein employee-
Complainant and employer-Respondent/s is such that reinstatement is
neither possible nor advisable because of the strained relations between
the two. For this reason, the Complainant is entitled to separation pay
as an alternative to reinstatement.

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.

ENGELBERT L. MADJUS
Complainant

Assisted by:

Office of Councilor Leah A. Librado-Yap

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, ENGELBERT L. MADJUS , of legal age, Filipino and a resident of Purok

13, Poblacion, Nabunturan, Compostela Valley, 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.

ENGELBERT L. MADJUS
Affiant

SUBSCRIBED AND SWORN to before me this ______________ 2019 in Davao

City, Philippines.

Doc. No. __________;

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