NATIONAL LABOR RELATIONS COMMISSI' NATIONAL CAPITAL REGION QUEZON CITY if ERICK S$, SARTE, ET AL., 5 Complainants, -versus- NLRC NCR Case No. 12-15596-13 (Hon, Labor Arbiter Jaime M. Reyno) BITMICRO NETWORKS INTERNATIONAL, INC, ET AL., Respondents. ———__E x REJOINDER COMPLAINANTS, through the undersigned counsel, unto this Honorable Office, respectfully submit their Rejoinder, and state: Contrary to the respondents’ contention, there can be constructive dismissal even if the employees did not cease reporting for work. 1. In their Reply, the respondents claimed that “[tJhere is no constructive dismissal if there is no cessation of employment.” Citing the 2011 case of United Laboratories v. Domingo,’ the respondents argued that the “crucial element in a finding of constructive dismissal is a cessation of employment relations between the parties.” Respondents’ argument is bereft of merit. ' GR. No. 186209, Sept. 21, 2011.( 2. Contrary to the respondents’ submission, an actual abandonment and cessation of work is not necessary for there to be constructive dismissal. Constructive dismissal occurs not when the employee ceases to report for work, but rather when the unwarranted acts of the employer are committed to the end that the employee’s continued employment shall become so intolerable. In these difficult times, an employee may he left with no choice but to continue on with his employment despite abuses committed against him by the employer, and even’ during the pendency of a labor dispute between them. This should not be taken against the employee. Respondents should be reminded of the precept that necessitous men are not free men. 3. Respondents’ reliance in the Unilab case is misplaced. In the fairly recent case of The Orchard Golf and Country Club v. Francisco, the Supreme Court had already categorically ruled that the fact that the employee continued to report for work does not necessarily suggest that constructive dismissal has not occurred, nor does it operate as a waiver of his right against the employer's acts of insensibility, disdain or discrimination. Thus: “The fact that Francisco continued to report for work does not necessarily suggest that constructive dismissal has not occurred, nor does it operate as a waiver. Constructive dismissal occurs not when the employee ceases to report for work, but when the unwarranted acts of the employer are committed to the end that the employee's continued employment shall become so intolerable. In these difficult times, an employee may be left with no choice but to continue with his employment despite abuses committed against him by the employer, and even during the pendency of a labor dispute between them. This should not be taken against the employee. Instead, we must share the burden of his plight, ever aware of the precept that necessitous men are not free men.” 4. Indeed, the complainants cannot be blamed for continuing to report for work notwithstanding the series of acts of harassment, insensibility and disdain suffered at the hands of the respondents. It should be stressed that even if the complainants are litigating the present case, they still have families to feed, to provide shelter, and to fulfill the basic necessities in life. They are left with no choice but to continue with their employment despite the abuses committed at the hands of respondents. Respondents’ insistence that 2G.R. No. 178125, Mar. 18, 2013,ie they should refrain from report charge of constructive dismisse logic. for work to give semblance to the indeed absurd and contrary to e il Respondents’ allegation that like i present controversy stemmed * from the company shutdown that - happened in September 2013 is bereft of merit. te 5. _ In their Rejoinder, respondents reiterated their allegation that the present controversy stemmed from the company shutdown sometime in September 2013. They likewise insisted that the present controversy stemmed from the confusion caused by the said company shutdown. ¢ 6. There is no merit in the respondents’ assertion that the present controversy arose from the above-mentioned company shutdown. As explained at length in the complainants’ Position Paper and Reply, the respondents had already acted in bad faith towards the complainants even before the said company shutdown. The respondents’ contention is belied by the fact that the employees’ salaries have been delayed even prior to the said company holiday 7. Indeed, there is no merit in the respondents’ allegation that the “company holiday” was the proximate cause for the delay in the release of the salaries of the employees, as well as the production delay. An examination of the record will reveal that the real cause for such delay was the nefarious attempt of the individual respondents to take over the Company's operations by withholding the release of the funds, which were intended to pay off the employees’ salaries, as well as the Company's creditors and business partners. It became apparent that the new management was using the employees’ salaries to pressure the complainant into submitting to their control, thereby deciding the dispute in their favor—which was not for them to decide. " 8. After much delay, BNI-USA eventually promised to release some funds to Bitmicro, ‘However, it would take several days to process the remittance and the amount released was sufficient only to cover the basic salaries of the employees, as it did not include the 3sums intended to be remitt i ae the different government agencies (iz, the BIR, SSS, Pile h, Pag-lbig) as well the Company's different creditors. mie 9. | Given this situa ze oO 0 September 2013, Mr. Rey Bruce (‘Mr. Bruce”), the President of Bitmicro, issued a letter addressed to BNI-USA stating that in view of the delay in the release of the funds sufficient to pay the employees’ salaries and the other payable to the contractors, the Company wa et with no other choice but to declare a company holiday as it Was not:in a position to require the employees to report for work and pay their salaries. The company holiday took effect on 09 September 2013. 10. Clearly, the company holiday was not the real reason for the delay in the release in the employees’ salaries, as well as the production delay. On the contrary, it was the private respondents’ decision not to release the funds to Bitmicro that caused the delay. The declaration of the company holiday was not the cause, but is rather just one of the effects, ‘Of their decision to withhold the release of the funds intended for the normal operations of the Company. 11. In their Reply, respondents misleadingly claim that the complainants allegedly admitted that the acts of discrimination and harassment were caused by the “confusion at BitMicro [which] resulted in work disruptions and affected the delivery of services of BitMicro’s clients.” Contrary to the respondents’ misleading assertion, the complainants’ have exhaustively outlined in their Position Paper and Reply the deliberate acts of harassment committed by the respondents 12. The statement that the complainants were “confused” about the “group of officers and board of directors to follow” pertains to the intra-corporate dispute, but not to the day-to-day activities in the Company, which should not have been affected by such intra-corporate dispute in the first place. Unfortunately, the respondents brought the intra-corporate dispute right in front of the Company's doorstep, which’ was’ further aggravated by the respondents’ deliberate act of favoring only a select group of employees perceived to be loyal to the new management.Complainants Erick Lawrence Salazar and Noe Mateo-Salazar were demoted from their previous roles. as Engineering Directors. 3 * 13. In their Reply, Fe ents again claimed that there was no constructive dismissal in this case as none of the complainants suffered any demotion’ or ution of benefits. As already explained in the complainant Reply, there is demotion when an employee is appointed to ition resulting to a diminution in duties, responsibilities, status or rank which may or may not involve a reduction in salary Demotion involves a situation in which an employee is relegated to a subordinate or less important position constituting a reduction to a lower grade or rank, with a corresponding decrease in duties and responsibilities# In other words, when an employee is reassigned to a position involving a reduction in duties, responsibilities and status,,there is a demotion, and consequently, constructive dismissal, even if there is no diminution in pay. 14. _ In this case, not, ‘only were the complainants Erick Sarte, Lawrence Salazar and Noeme Mateo-Salazar removed from their previously assigned roles as Engineering Directors. Worse, they suffered a demotion at the hands of the new management led by Messrs. Sante and Uriarte. “In their Joint Affidavits complainants Erick Sarte, Lawrence Salazar and Noeme Mateo-Salazar confirmed the truth of the foregoing facts as follows, to wit: “31. In our meeting, Mr. Sante informed us that there is no guarantee that the Company will be able to pay our salaries, and we were instead asked to take a leave of absence in the meantime and just consume our existing leave credits. 32. On the same day, Mr. Sante demanded that an update for all the upcoming products of the Company. He also mentioned that Ms. Martorillas will ‘now be the new Head of the PMC. Thereafter, Ms. Martorillas informed us that the engineering directors and managers who used to lead the projects (including ourselves) were already replaced new managers handpicked by the new management. We demanded that the new management * Bautista v. Civil Service Commission, G.R. No, 185215, Jul. 22, 2010. 4 Tinio v. Court of Appeals, 524 SCRA 533 (2007). 5 See Complainants’ Position Paper, Annex"A”,ee é should issue a menor regarding our demotion but they us refused to do so ia “xxx Taube 2 34. On 20 October 2013, Mr. Sante invited us for a meeting at his office. During the meeting, Mr. Sante instructed us to take a forced leave of absence while he was allegedly asserting his influence and authority!lover the engineering groups. He eA mentioned that we wel influential’ to the other employees He mentioned that we will: just be notified when we can return to work, Starting the said date, we were not allowed to enter the office premises. acer! Xxx XXX 36. On 02 December 2013, we received text messages e stating that we are directed to report for work the following day, 03 December 2013. 37. _ As instructed, we reported for work on 03 December 2013. We were initially met by Messrs. Erwin Salazar (who was recently promoted to Director of Engineering) and Marlon Verdan (a handpicked ASIC Manager during the pizza party) for a briefing. ‘They mentioned that since only a handful of engineers are needed for support, we will only be given tasks to be assigned from time to time. They stated that we should just keep ourselves busy in the meantime 38. Since the said date, while we are reporting for work in the office, we are not performing any productive task that we were previously performing for the Company. Instead, we are being bypassed as some of our personnel are being managed directly by Messrs. Salazar and Verdan. To keep ourselves busy, we just spend the day studying and training individually.” 15. The above-stated facts were corroborated in the Affidavit® of Mr. Federico Sambilay Jr. (“Mr. Sambilay”), a senior manager at the ASIC Group of Bimicro) and a member of the Company's Project Management Committee (PMC) who was assigned to that role in liew of complainants Erick Sarte, Lawrence Salazar and Noeme Mateo- Salazar. In his Affidavit, Mr. Sambilay testified as follows: “16. On Oct 8, 2013, Mr, Zophar Sante had a meeting with ASIC group. I heard that during this meeting, Mr. Zophar Sante confirmed the retrenchment plan of the company, but told those present in the meeting that from the initial figure of around 50%, it may be possible that only around 10%-15% of Bitmicro employees © See Complainants’ Reply, Annex "B".Speeea eases eee 7asy aise TaIPa eet sees | SUES wT ee | TVA wr fees Fa39— Eb bE) will be laid off, but later’ f same meeting mentioned that he doesn’t know if it would be 5%, 10% or 50%, adding a disclaimer that he could not make jise for things change every single day, 17. After thigl esting allSmembers of our group were allowed to go to their There was no clear information, however, as to when the re ‘ent plan will be executed. 18. On this sa managers and directors Lawrence Salazar, asked Mr. Zophar Sante met all the ; Bitmicro, One of the directors, Mr. he new management if the directors are ject Management Committee) required attendees to the PMC meeting. Ms. Cecilia Martorillas replied to Mr. Lawrence Salazar’s question that the directors do not need to attend the PMC see Mr. Zophar Sante agreed to Ms. Cecilia Martorillas’ reply. I 19. When the new management took over, Mr. Marlon Vercian and I became the new members of PMC representing our own group (ASIC). This wasn't relayed officially to the rest of ASIC group. 4, Mr. Zophar Sante had a meeting with the new members offPMC. In this meeting, Mr. Zophar Sante instructed us to create a list ranking the members of our groups This list will be the basis for the retrenchment and those belonging to the bottom part of the ia jill be part of those that will be laid off. I asked if we need to. include the directors in the list. Mr. Zophar Sante replied that tie directors should be at the bottom of the list. The Directors for ASIC group are Mr. Lawrence Salazar, Ms. Noeme Salazar and Ms! Rowenah Michelle Chiw. 21. On Oct 25, 2019, Ieceived an email from Mr. Stephen Uriarte broadcasted to members of Bitmicro Philippines announcing that Mr. Erwin Salazar was promoted as the Director of Engineering. 1 22. On Nov 5, 2013, Mr. Marlon Verdan and I had a meeting with Mr. Erwin Salazar. On this meeting, Mr. Erwin Salazar told us that the plan of the new management was to, eventually, get rid of the ‘old directors. hat 23, Starting Oct 15, 2013, all Bitmicro employees received their pay on time, but there was no clear information as to when the other employees will receive their unpaid salaries. At this time, I still have to receive my Sept 15 salary. ae 24. On Nov 18/2013, I received my Sept 15 pay check while some Bitmicro employees, up to that time, still had not yet received their Sept 15 dane salaries.al 25. On Nov 21, 2018, Mr. Marlon Verdan and I had a meeting with Mr. Erwin! Salazar. On this meeting, Mr. Erwin Salazar told us that the plan of the new management was to place members of ASIC group that’ will be part of the retrenchment on ‘temporary’ retrenchment a he common understanding of ‘temporary’ retrenchment at the time was that employees won't have work for a maximum period of 6 months. During this period, the employees won't recein eany salary or any severance pay.” Weg 16. It cannot be denied that the demotion of complainants Erick Sarte, Lawrence Salazar ‘and Noeme Mateo-Salazar, who were unceremoniously removed from being members of the PMC, and who were bypassed as neering Directors by more junior managers (ie., Messrs. Erwin Salazar and Marlon Verdan) who are now directly managing their respective teams, amounted to constructive dismissal. Henceforth, the complainants have no involvement whatsoever in the project that they used to lead, even after they were asked to report back to the office. This is a textbook example of demotion and constructive dismissal. 17. In their Reply, respondents again asserted that the demotion of complainants Erick Sarte, Lawrence Salazar and Noeme Mateo-Salazar was necessary to “avoid any confusion and disruption of the restructuring process.” “Respondents likewise stated that when the new management “asked the BitMicro engineering directors to explain the reasons for the’ poor progress of the MAXio product, some of the directors failed or simply refused to provide an answer.” Respondents’ allegations are bereft of merit. In fact, the respondents even failed to explain how the presence of complainants Erick arte, Lawrence Salazar and Noeme Mateo-Salazar was could cause “confusion and disruption of the restructuring process.” 18. In the email of Mr. Uriarte dated 18 July 2013’ with subject “Teleconference with David Shapowal” and addressed to the directors/complainants, Mr. Uriarte himself praised the progress of the maxlO project. As clear as noon on a sunny day, the alleged “poor progress of the MAXio product” was not the motivating factor why complainants Erick Sarte, Lawrence Salazar and Noeme Mateo- Salazar were demoted from their previous roles as Engineering Directors. On the contrary, complainants Erick Sarte, Lawrence Salazar and Noeme Mateo-Salazar are merely being penalized for 7 See Complainants’ Reply, Annex “C",expressing their concerns about being party to a patently illegal temporary retrenchment, and for speaking up against the instructions of the new management that could result in a violation of their Non- Disclosure Agreement with the Company. 19. Furthermore, and as was previously explained in the complainants’ Reply, the nature of the role of the ASIC team in the Project will disprove the respondents’ claim. 20. ASIC refers to “Application Specific Integrated Circuit”, or what is commonly known’ as “chip” or “microchip” in electronic products. The ASIC team’s main role in the project was to deliver the chips used in the product. This was already accomplished as of early 2012. Hence the ASIC team’s role in the delivery of the maxIO product is only to support the other teams that have since been actively working on the next stage of project. 21. The ASIC team has been working on the chip for the next generation product. Several of the engineers were hired after the delivery of the chip for the current maxIO product and have solely worked on the next generation chip up until June 2013 when respondent Mr. Uriarte asked that all employees stop its development. The ASIC team was baffled by this directive, but in good faith, still complied to help in whatever way possible to release the current product. The usual practice that was done for the previous generation product was that the ASIC team can proceed to developing the next chip while the other teams are working on the product development (ie, hardware board debug and firmware debug). The decision to continue with this strategy and in the process hire additional ASIC. engineers was made by the previous management. From their actions, the new management led by the individual respondents did not agree with this strategy. However, instead of implementing a proper retrenchment with severance pay, respondents devised ways such that employees will resign on their own without getting the proper severance pay. The complainants were unduly discriminated against by the new management led by individual respondents Messrs, Sante and Uriarte.gees) 173) av5reT) | Hepa eae 22. Speaking. on |b complainants Jaylord Pinili, Jc Emando Ariel Bangayan, Cabuling executed a Joint suffered acts of discriminati 1 ° respondents, viz.: a “5. Specifically, sometime in the latter portion of August 2013, Messrs. Uriarte and Sante arrived at the Company's office ‘and demanded that the employees’ should recognize the new management, and that the employees should no longer recognize the old management led by Mr. Bruce and Mr. Gilbert Cunanan (Mr, Cunanan’), the former Program Manager of Bitmicro. Since the employees are not privy to.the controversy, we chose to remain neutral lest we be caught in the crossfire between competing factions of management. | ign 6. Unfortunately, (our salaries for the second half of August 2013 were delayed. The reason provided was that there was no signatory available whe can release the funds. We surmise, however, that the delay was caused by the intra-corporate dispute. 7. On 03 September 2013, Mr. Cunanan assembled all employees where he announced that there is no update when our salaries can be paid by Bitmicro as BNI-USA failed to remit the payments due to the Company: Mr. Cunanan also disclosed the possibility that the Company might be placed on company holiday due to the unavailability of funds sufficient for the continued operations of the Company, 9. On the same date, a telephone conference was arranged by the new management to clarify the reasons for the delay in our salaries. We were informed that the new management will release our salaries provided that we no longer recognize the old management. Our, Engineering Directors were likewise instructed to sign a letter of support in favor of the new management as condition for the release of the funds for the ‘August 2013 salaries, notwithstanding the pendency of the intra~ corporate dispute. We were appalled that the new management is using our hard earned salaries as leverage to gather support However, since we wanted to maintain our neutrality, our Engineering Directors did not sign the letter of support 10. On 06 September 2013, we received our salaries for the second half of August 2013. However, the Company did not remit our contributions due to the different government agencies (ie, the BIR, SSS, PhilFealth, Pag-Ibig) and did not pay the * See Complainants’ Position Paper, Annex "B" 10 ‘of the rest of the complainants, 16 Lara, Nepomuceno Franco Il, el Edillorana and Aaron Jay it8 where they narrated how they insensibility at the hands of they's HMO provider. As such, we iled to avail of their HMO benefits. 11. . On 09 Sept imposed a company holiday and we'were advised that even if we are not required to report | work, ‘we will still be receiving our salaries when the funds ‘become available. The said company holiday was eventually li '30 September 2013 when the new management was able to Oblain a temporary restraining order (TRO) from the Court agai 1d management. ff e 12. On 13 September 2013, we attended a general assembly held at the Max’s Restaurant, which was led by Mr. Sante, We were informed that there were at least three (3) previous meetings that were held, which we failed to attend because of lack of prior notice. We were informed that those employees who failed to attend the meetings will be considered on leave of absence without pay. “ af 13. On 15 September 2013, the Company remitted the salaries for the first half of September 2013. We noted, however, that only the select employees who sign the letter of support in favor of the new management were paid their salaries. We did not receive our salaries. i 14. We subsequently ‘learned that the new management directed the employees to sign a daily attendance sheet located at the 7-Eleven Store at the Net Square Building in order to receive their salaries. However, considering that most of the employees have yet to receive any salary’ for almost one (1) month, some of the employees were unable to comply with this new requirement as they have no funds to spend for transportation and meals 15. On 30 September 2013, the Company remitted the salaries for the second half of September 2013. Once again, only the select employees who signed the letter of support for the new management were paid their salaries. We did not receive our salaries. ay ae 16. We learned that on 04 October 2013, Mr. Sante held a ‘pizza party’ attended by select'employees who signed the letter of support for the new management, plus additional five (5) selected ASIC engineers and ten (10) selected ASG engineers. We were not invited to attend the said party. We likewise learned that those who attended the said party were paid their September 2013 salaries, which were given through checks issued by the Bank of Commerce. Se 17. Under the new management, new security guards were deployed and were instructed that only selected employees enumerated in a list provided will be allowed to enter the office.ie « 18, |, Eventually l oyees were directed to report for work beginning on 08 Oct 2013... However, since our names ided to the security guards, we em rf, workplace, Instead, we were located at the 19! Floor of the yere met by Mr. Sante, Mr. Sante report for work, we may do so but be paid our salaries. He instead mentioned that we may take a leave of absence instead, if we wanted, but without pay, peu aah. = ty ear that we are no longer welcome nt and that they want to lay us off Y acceptable severance package. Simply put, the employees who did not manifest their support to the new management (especially those who did not sign the letter of support) are being forced’to resign from employment. redirected to the Recreal 3 aH 19, It was theref x Xxx hig 21. In the meantime, on 16 October 2013, and after much ik delay, we finally began to, receive our salaries. However, we did not receive our salaries for September 2013 on the same date. In fact, some employees received their September 2013 salaries only in December 2013, while some received their September 2013 salaries a only in January 2014.48 | 22. Presently, while we are reporting for work for the Company, with the exception of a few affected employees, most of : us were merely directed to wait for instructions from the new management that may be given from time to time. Unfortunately, we are only being given tasks that are outside the scope of our job description. Worse, some employees were even reporting for work with nothing else to do." ) | F- 23. Furthermore, in his Affidavit Mr. Sambilay narrated that cE the new management sponsored a “pizza party” where only the i i group of employees perceived to be favorable to the new it management were invited: Mr: Sambilay further disclosed that q during the said pizza party, individual respondent Mr. Sante f. addressed the employees and stated that only those who are present ir at the party will not be included in a “retrenchment plan” to be & 3 implemented by the new management. The Affidavit reads: "12. On the eve of Oct 3, 2013, I was contacted by Mr. Erwin Salazar informing me that I was one of the five members of ASIC that will be retained by the new management, and that I was * See Complainants’ Reply, Annex “A”. Pgs Tete eee ses |invited to come to a ‘piz be held on Oct 4, 2013. Mr. Erwin Salazar told me that date, I will receive my pay check. # 13. OnOct4, Beat the ‘pizza party’ I received my Sept 30 pay check. Not this ‘pizza party’. On thi present in the party and will have to lay off sony those not included in th pizza party. Estimated 1 around 50% of Bitmicro e jloyees of Bitmicro were invited to y) Mr. Zophar Sante addressed those announcement that the company Bitmicro employees, and that only etrenchment plan were invited to that f present in the pizza party was 14. On that same day while the pizza party was being held, members of ASIC group not invited to the party heard about the party and the retrenchment plan of the company. Understandably, this pissed them off. Up to this time, they were left in the dark- (1) they received no salary for 1 month, while some of Bitmicro employees received theirs, (2) there was no clear and official instruction as to when they can report for work, (3) they heard about the retrenchment plan of the new management, but the details were not clear. 15. On that, same) day during the pizza party, I had a short conversation with Mr. Zophar Sante. He proposed to meet the whole group of ASIGjincluding those not included in the pizza party in the following week so he could explain the situation of the company.” 24. The above-quoted testimony was further corroborated by the Affidavit! of Mr. Diala wherein he mentioned that the select group of employees who attended the “pizza party” likewise received their salaries from Bitmicro. Thus: “2. On October 3, 2013, I received a message from the management coursed through Mr. Federico Sambilay, instructing us to attend a meeting at BNII office to be held the next day, October 4, 2013, The other invitees to this meeting coming from the ASIC group are Mr. Adnan Marohomsalic, Mr. Normandie Azucena, Mr. Federico Sambilay and Mr. Marlon Verdan. We were told not to tell the rest of the ASIC group of this upcoming meeting. 3. On October’ 4, 2013, the five of us went to the 19% Floor BNII at around 2PM, Before we were allowed to enter, the guards on duty checked whether we were included in the list of employees who will be allowed to enter the office 4. Once inside, we were directed to the Finance area. 4 See Complainants’ Reply, Annex “B” 13oeeIT 2s getting the check for September g distributed by Mr. Eric De Sagun fe lined up, and while waiting for ar. During our conversation, he list of ‘essential’ employees who will remain to continue working for BNII. Concerned, we asked if it is okay to tell this to the re of the ASIC group Mr. Salazar said : 4 yes since they will find out anyway. ? pes E 5. Alter getting the check, we stayed at the lobby to wait rs for the staff meeting to start. And after a while, the employees f were told to proceed to og creation room, still at the 19" floor, as pizza'is being served. s S 8 : 2 z m7 2 a told us that the five of us ai i re it. Zophar Sante spoke up. During his attendees, all the people in the room, emain {© continue working in the 6. After a while, speech, we were told that # will be the ones who wi ‘company. x x x.” ee 25, Finally, in his Affidavit, Mr. Marohomsalic corroborated the above-quoted sworn statements and confirmed that the complainants were discriminated against by the new management of Bitmicro. Thus: 2. Onthe morming of September 11, 2013, | learned from % a co-employee that there,was a meeting between employees and © management at Max/s Restaurant in Bonifacio Global City (BG), { Taguig. It was organized by members of the then ‘new’ , management Mr. Zophar) Sante, Ms. Nimfa Diaz, Mr. Erwin Salazar, and Ms. Cecilia Martorillas. 3. I then went Ito ‘Max's to check what the meeting is about. This is even without having received an invitation as 1 & assumed that the meeting is a general company meeting since t many employees are attendln ee 4. While walking “towards the restaurant, I saw employees outside the restaurant waiting to enter. I also saw Ms Martorillas and Mr. Salazar at McDonalds just beside Max's. 1 approached them so I' could get more information about the meeting, SLTSP ET SIT | Ms. Martorillas explained to me that they are asking people to show support for the new management. This is to ensure bur continued employment, She further showed me the draft letter of support on her phone, I then learned that the letter of support were signed during meetings on September 9, 2013 at Dell's 1 See Complainants’ Reply, Annex “Canteen at Net Quad Bi i 5 Taguig and on September 10, 2013 also at Max's Restat oe ‘Taguig. Like me, most of the yy the new management of these prior meetings. 6 Then Las! mates. Ms. Martorillas : dumaan sa ‘Phase 1’. Yu referred ‘Phase 1’ as the management’. Despite bein, should call may ASIC team sd) Hind! muna, kelangan niyo munang mgd nandito kasi is para sa “Phase 2’. She g of aletter of support for the ‘new ; denied to join the meeting, I offered to reach out and gave my contact number. | offered to be the bridge between them and the ASIC group, especially the rank-in- file employees. 1 am awate that the management also have the phone/ mobile number of our ASIC managers and ASIC directors. I just really wanted to make sure that we are accessible and we are not left out of meetings suchas this. And so, Mr. Erwin Salazar got my cell phone number. 7 On september 12, 2013, | received a message from Mr. Erwin Salazar at around six’ in the morning informing me to pass a management directive to: bette ASIC engineers that employees are to report and sign attendance at the ground floor of Net Square Building, BGTC, Taguig )0 AM and 11:00 AM, near 7- Eleven Store. am 8. _1 then started a'SMS/text brigade so this message will reach all of my ASIC team mates in time, As a redundancy, I also emailed this to them. aan. 9. The requirement to sign attendance at Net Square Building continued until September 24. This is when I receive a message on September 25 that we are no longer required to sign attendance at BGC. All throughout this period, I and the rest of ASIC team complied with this directive. 10. On September 3, 2013, a general staff meeting was called by the management, again at Max's Restaurant, BGC, ‘Taguig. In the meeting, Mr/Zophar Sante said that we will be paid, and Money is not a problem’and to get our salary, we just need to continue signing up for daily attendance at Net Square Bldg. This will be used as a basis for Accounting to do the payroll. Ms. Nimfa Diaz reminded those who were not able to sign up for attendance during the past days (September 9 to 12, 2013) may file their leaves. Also during the meeting,,Ms. Lynitte Dower was introduced to everyone. She will be working with Accounting to work on our payroll. The email addresses of Mr. Sante, Ms. Diaz and Ms. Dower were shared to all s@ we could reach them for follow-up or for other concerns. ie A 11. On September 15, 2013, I did not receive my salary for the September 1 to 15 period. I learned that my fellow ASIC members also did not receive their salaries. | initially assumed that 15TIL GA7 FFF FT se Start sesy ersTea | eager ese eer see eters eek ree Ms. Dower and the finan during the weekend. aet finish payroll preparations email Ms. Dower w1 r ASIC engineers asked via 12, On September !18, I learned that some employees received their September 4 to 15/salary. After asking other eady received their salaries, I was able nployees, Hardware team, ACE team ‘Majority of Advanced Software and c did not. to conclude that 19th Fl working on it’, 14. Despite havi rest of the ASIC team ¢oi attendance hoping we will g not received our salaries, I and the que to come to BGC and sign for ntually receive our salary. 15, On October 3, 2013, we learned from our ASIC managers and ASIC directors the result of their meeting with Mr. Zophar Sante, They relayed tous that Mr. Sante told them that only six to ten (out of 60 a AISC engineers) will remain with the company. ‘aio 16. Also on oder 3; 2013, I received a message from Mr. Federico Sambilay informing me'that I am one of the five ASIC invited to an assembly to:be held at the 19th floor of BNI at 2:00 P.M, the following day. Mr, Sambilay himself, Mr. Jefferson Diala, Mr. Normandie Azucena and Mr. Marlon Verdan are the other four ASIC members. I was alsovinformed that during this time, the checks for the September salary are to be released. I was also instructed not to inform the secret assembly to the rest of the ASIC engineers who were not invited. 17. On October 4,!2014, we, the five ASIC engineers, proceeded to the 19th floor of Net Square Building to attend the meeting. Prior to entry, the BNI guards on duty asked for our names and verified if we are|included in the list of employees allowed to enter the office: After’ verification, we were then allowed to enter. We are'then directed to go to Finance to queue for our salary. 18. While still lined! up, we saw Mr. Erwin Salazar. We talked to him to clarify about our employment status as well as those ASIC engineers who were not invited. He told us that they already made a final list of employees who will be retained by the company. He confirmed, that the five of us are the only ASIC engineers included in thelist,” He also said that we are the ‘essential’ ASIC engineers needed to finish the current project. We then asked Mr. Salazar if we'can tell the other ASIC engineersa about this development. | eventually.’ When asked course, they will get thei should receive. The ma dl yes, ‘malalaman din naman nila it their severance pay, he said “of erance pay and all other things they t is) prepared to do whatever is legal. When asked about smber 1 to 15 and September 16 to 30 salaries of those wi renched, he said ‘Yes, they will receive their salary, © "Sa ‘ngaiam, inuna lang yung mga ‘supported’at mga maiiwan... 8) y ‘+ 19. When it was'a a, turn to receive the check, I t that I received was only for my September 16 to 30, 2013 ‘salary, but not for my September 1 to 15, 2013 salary. The checks were being distributed by two Finance employees overseen by Mg, Lynitte Dower. 20. After [receiving] our check, we proceeded to the lobby, and then to recreation area where pizza and ice cream were served. All eyes were on us as we enter the room. I assume they were not expecting to see ASIC engineers. The room was filled with BNII employees mostly from the 19th floor (HR, Admin, Finance, I.T., Marketing, Sales), and Hardware and ACE Engineers Only a around ten Software Engineers were also present. . 21. In a few minutes, Mr. Zophar Sante spoke to the attendees of the assembly meeting which turned out to be a ‘thanksgiving party’, He said that those of us who received a check are sure to be retained and will continuie to work for BNI 22. Land the other employees returned for work at BNI on October 8, 2013, The guards on duty on the 18th floor checked if Iwas in the list allowed to enter the workplace. I was then allowed entry as I observe that other employees were not. ‘They were directed to go to the 19th floor. 23. At past nine in the morning g, I went to the 19th floor to attend the meeting between Mr. Zophar Sante and the non- invitees to the thanksgiving party. Mr. Sante spoke for almost an hour explaining their employment status and the salaries and he c will understand if they do not report for work. He then advised them to file for leaves of absence.” 26. In fact, the respondents themselves admitted in their Position Paper the factual bases for the charge of constructive fF dismissal, Respondents admitted that they instructed the r complainants to go on forced leave of absence without any valid ty ground;? that they instructed the complainants not to report for work (albeit for safety reasons and for alleged humanitarian t considerations); that they withheld the payment of salaries to some of 22 See Complainants’ Reply, Annex “D”,E | rr mplainants were demoted to other roles in the guise of an alge structuring” in the Engineering Department. uly 27. While the respondents offered justifications for the above- stated acts, it is worth nota that these justifications are patently absurd and defy logic. a i ft 28. For instance, respondents maintained that some of the complainants were instructed not to report for work because of alleged safety concerns. Respondents, however, failed to explain why the select group of employees sympathetic to the new management was allowed to return to work if indeed that are risks to the lives and safety of the employees. In fact, respondents failed to even explain why the alleged’“hacking” and “tampering” of the Company’s computer system might pose as a risk to the safety and health of the employees that necessitated the management to compel the employees to be on leave of absence without pay. 29. In addition, respondents maintained that some of the employees were instructed not to report for work for humanitarian reasons as they had no funds to defray the costs related to reporting for work, such as for transportation and meals. Respondents, however, conveniently failed to disclose that while these employees were not required to report for work since the Company did not intend to pay their salaries, the select group of employees sympathetic to the new management was allowed to report and were given their salaries. ‘Furthermore, logic dictates that the appropriate intervention for the employees who can no longer report for work because they have not-received their salaries for months is for the management to pay their unpaid salaries, and not for the management to dictate that they should go on forced leave until there are funds to obtain elsewhere; 30. In other words, the directive for the complainants not to report for work was not triggered by any humanitarian consideration, but is rather based on political considerations, as those employees who were perceived to be sympathetic to the old management were made ‘to ‘endure acts of insensibility and discrimination. It is undeniable that the employees who did not manifest their support to the new management (especially those who 18& “eT pata Fee": e252 theta t 34 did not sign the letter of support) are being forced to forego BEompany repeated acts of deception, scheming, discrimination, n and bad faith have amounted to constructive dismissal. Many/of the complainants were just forced to resign or seek other less favo employment elsewhere, which is a situation convenient to the nen lents, whose original intention was 31. | Indeed,, the! to implement a reduction in‘ manpower without paying the proper severance pay. Te AB 32. Finally, and as explained at length in the complainants’ Position Paper and Reply, respondents’ defense of resignation and abandonment are negated by complainants’ act of filing a complaint for illegal dismissal just a few days after their constructive dismissal. Indeed, the law recognizes the absurdity of an employee resigning and then filing a case in court to contest his separation from the service. It would simply be illogical for the complainants to quit their jobs because, as respondents insist, they “misunderstood” the reasons for the acts of the management. ‘As the Supreme Court held in Carlos v. Court of Appeals:3 ipo! me Yes “Time and again we have ruled that in illegal dismissal cases like the present one, the onus of proving that the employee was not dismissed or if dismissed, that the dismissal was not illegal, rests on the employer and failure'to discharge the same would mean that the dismissal is not justified and therefore illegal. ® Thus, petitioners must not only rely on the weakness of private respondents’ evidence, but must stand on the merits of their own defense. A party alleging a critical fact must support his allegation with substantial’ evidence, for any decision based on unsubstantiated allegation’ and unreliable documentary evidence cannot stand, as it will offend due process. Petitioners failed to discharge this burden. Petitioners’ complete reliance on the alleged resignation letters to support their claim that private respondents voluntarily resigned is unavailing, as the filing of the complaint for illegal dismissal is inconsistent with resignation. Resignation is the voluntary act of employees who are compelled by personal reasons to dissociate themselves from their employment. It must be done with the intention of relinquishing an office, accompanied by the act of abandonment ® GR, No. 168096, Aug. 28, 2007,wa | (FER ‘t ate IAD) | SPELT SHS Te ondlents to resign and then file a complaint for illegal ‘Wel find it highly unlikely that private respondents woul tt their jobs because they refused to take new assignments! or attempted to avoid any‘ monetary liability for the purpor ss of bowling equipment, after enduring long years Working for the _ petitioners, notwithstanding the me: lack of the appropriate k been equally senseless, seeking payment of their then abandon subsequer resigning.” social benefits. It would have respondents to file a complaint benefits, as mandated by law, immediately their work by 33. In sum, the se were constructively dismissed from employment. As such, they are entitled to the reliefs prayed for in their Complaint and Position Paper. ‘ é WHEREFORE, it is respectful sctfully prayed that after due notice and hearing, judgment be rendered in favor of complainants and against respondents as follows: ehh ac 1. Declaring that the! complainants were constructively dismissed from employment; 2. Ordering respondents to reinstate complainants to their former positions without loss of seniority rights and other privileges, or if there is strained relationship, to pay separation pay in the amount of one (1) month’s pay for every year of service; sami 3. Ordering respondents to jointly and severally pay complainants’ full backwages, inclusive of allowances, other benefits and/or their monetary equivalent; ate 4. Ordering responienrs to jointly and severally pay complainants the amount of Three Hundred Thousand Pesos (P300,000.00), each by way of moral damages and Three Hundred ‘Thousand Pesos (P300,000.00) each by way of exemplary damages; and oh 2 ie otrear | oF 5. Ordering ee to jointly and severally pay complainant amount equivalent to 10% of the total Way of attorney’s fees. Counsel for the Complainants 5/F Intramuros Corporate Plaza Recoletos Street, Intramuros, Manila PTR No, 0724947/2.11.2014/Tacurong City IBP No. 847470/1,04.2013/Sultan Kudarat, Roll No. 34758 MCLE Compliance No. IV-0019558 Issued’ April 11, 2013 Copy Furnished: (By Registered Mail) ROMULO MABANTA BUENAVENTURA SAYOC & DE LOS ANGELES OVe Counsel for the Respondents (9 21s Floor, Philamlife Tower 8767 Paseo de Roxas Street Makati City é EXPLANATION (Pursuant to Rule 13, Section 11 of the Rules of Court A copy of this Rejoinder was served by registered mail with return card upon the respondents’ counsel due to the time constraints and for lack of messengers who can effect personal service. A . BIE! (DO Q¥RBO, JR.