Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration branch No. 10
Cagayan de Oro City

DARRIEL L. ARANCES NLCR CASE NO. RAB-10-

Complainant 03-00246-2020

-versus-
PHILIPPINE MOTORCYLE KING
INC. as represented by ALCHER
O MUAÑA &/or ROMEO
CAMBALON, Assistant Area
Manager
Respondent,
x------------------------------------------------------x

POSITION PAPER FOR RESPONDENT

COMES NOW Respondent, through the undersigned counsel, and

unto this Honorable Office, respectfully files this Position Paper and in
amplification thereof, most respectfully avers the following:

I
PREFATORY STATEMENT

The Constitution and other laws relating to labor guarantees and

safeguards the rights both of the employees and the employer. In such a
relationship, there exists an equality of rights. Henceforth, “the
constitutional commitment to the policy of social justice cannot be
understood to mean that every labor dispute shall automatically be
decided in favor of labor”1

In safeguarding such rights and in adhering to the honored

principle of “those who comes to court for equity, must come with clean
hands,” erring employees could not hide behind the mantles of the very
laws intended to protect them and use the same as grounds to oppress
and destruct the employer.

II

1
Imasen Phillippine Manufacturing Corporation G.R. No. 194884 October 22, 2014

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 PARTIES TO THE CASE

1. The complainant DARRIEL L. ARANCES is of legal age,

Filipino, and a residenct of P-8 Matangad Gitagum Misamis Oriental,
where court processes may be served.

2. The respondent, PHILIPPINE MOTORCYLE KING INC. as

represented by ALCHER O MUANA &/or ROMEO CAMBALON,
Assistant Area Manager) is a corporation duly organized under the
Philippine law and is the employer of the complainant, as
represented by, through Corporate Resolution, ALCHER O MUAÑA
&/or ROMEO CAMBALON of legal ages, Filipinos and residents of
RJS Bldg. Corner Everlasting Street Ilaya, Carmen, Cagayan de Oro
City ____________________, (Attached and appended hereto is a copy of
the SECRETARY’S CERTIFICATE and marked as ANNEXES “1” to
“1-A”)

III

STATEMENT OF FACTS AND THE CASE

3. On March 22, 2019, herein complainant was employed by

the respondent PHILIPPINE MOTORCYLE KING INC. in its satellite
branch office located in Alubijid Misamis Oriental, as its sales man
whose working schedule is from Monday to Saturday from 8:30 in
the morning until 5:30 in the afternoon. The complainant being the
only employee assigned thereat, was also in charge of the opening
and closing the said satellite branch office.

4. On February 11, 2020, as ALCHER O. MUAÑA and ROMEO

CAMBALON the area manager and assistant area manager
respectively of the respondent, were on their way to Langundingan
airport going to Manila and they happened to pass by its satellite
branch office located in Alubijid Misamis Oriental, where the herein
complainant was assigned.

5. When they pass by the same office at around 4:45 pm,

they’ve noticed that it was already close. With such, ROMEO
CAMBALON called GLENN ANGPAO, the manager assigned thereat
and informed him of such fact. He also instructed him to call the
attention of the complainant as to why the said office was already
close by 4:45 pm.

6. In relation to the same, on February 13, 2020, ROMEO

CAMBALON issued a memorandum to the complainant requiring
him to explain in writing why its satellite branch office on February
11, 2020, was already close by 4:45 pm. The same memorandum was

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sent by registered mail to the complainant by reason that he was not
on duty on the said date. Attached herewith is a copy of the said
memorandum, the registry receipt no. RE 157 150 495 ZZ with
Registry return card which are hereto attached as ANNEXES “A” , “B”
and “C” and forms an integral part hereof.

7. From the same memorandum, respondent receive no reply

from the complainant. In fact, since February 12, 2020, the latter was
already in absence without leave (AWOL) do the detrimental of the
respondent.

8. Despite however of his absences and being irresponsible

employee, still, the respondent was very lenient to him. Respondent
through ROMEO CAMBALON even sends him a letter on February
17, 2020, requiring him to go back to work effective immediately.
The same was sent by registered mail with registry receipt no. RE
157 354 272 ZZ. A copy of the letter dated February 17, 2020 and the
registry receipt no. are hereto attached as ANNEXES “D” and “E” and
form an integral part hereof.

9. However, amidst the show of compassion and leniency by

the respondent in allowing the complainant to continue working
despite the losses he caused the company by his absence without
leave (AWOL), still, complainant did not report for work nor did he
made an answer the same memorandum.

10. That after such time, respondent was astonish when it

found out that complainant have already filed a Single-Entry
Approach (SENA) against it and it was as early as February 12, 2020
for illegal dismissal, payment of salaries and separation pay.

11. Notice of conference dated February 12, 2020 was then

served with the respondent requiring the latter to attend to a
Conciliation Conference on February 21, 2020.

12. With all the conferences that was had proving to be futile by
reason that complainant does not anymore want to go back to work
but instead wants an amount of FIFTY THOUSAND PESOS (Php
50,000.00) to settle the case, an Order by the Regional Arbitration
Board was thereafter issued on May 4, 2020 requiring parties herein
to file its respective Position Paper, 15 days from receipt of such.

13. Respondent received such Order on June 16, 2020. Hence,

complainant has until July 01, 2020 within which to file this verified
position paper

14. Thus, this verified position paper is timely filed.

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 IV
ISSUES

[A]

WHETHER OR NOT THE COMPLAINANT WAS ILLEGALY

DISMISSED.

[B]

WHETHER OR NOT COMPLAINANT IS ENTITLED TO

SEPARATION PAY AND BACK WAGES.

[C]

WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO

DAMAGES AND Attorney’s Fees.

ARGUMENTS AND DISCUSSIONS

[A} WHETHER OR NOT

THE COMPLAINANT
WAS ILLEGALLY
DISMISSED

15. It is the firm belief of the respondent that, the complainant

was not illegally dismissed. The labor code in substance provides
that, there is illegal dismissal when an employee was terminated
from work by its employer without just cause and authorized cause.
Likewise there is an illegal dismissal when an employee is dismiss
from work without observing the two notice rule.

16. In the instant case, in bears to note that after the

complainant was discovered to have closed early the office where he
was assigned and for which his attention was called, he then was in
absence without leave starting February 12, 2020. That his absence
caused great loss to the respondent but despite such fact, the
respondent was very lenient and even sends him a letter on February
17, 2020 requiring him to return to work effective immediately.

17. Additionally, there could be nothing to show that

complainant’s allegation for illegal dismissal is supported by any
pieces of evidence. Thus, if there is one thing which the respondent
is guilty of, it is certainly not illegal dismissal but rather that of
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 compassion and leniency towards the complainant amidst all the
damages he caused him by reason of his absences without leave.

I. Complaint abandons his work

thus, there is no illegal dismissal to
speak of.

The Supreme Court in the case of Agabon vs. NLRC [G.R.

18.
158693, Nov 17, 2004] had an occasion to explain what constitutes
abandonment to wit;

“Abandonment is the deliberate and unjustified refusal of

an employee to resume his employment. It is a form of
neglect of duty, hence, a just cause for termination of
employment by the employer. For a valid finding of
abandonment, these two factors should be present: (1)
the failure to report for work or absence without valid or
justifiable reason; and (2) a clear intention to sever
employer-employee relationship, with the second as the
more determinative factor which is manifested by overt
acts from which it may be deduced that the employees
has no more intention to work”

19. In the case at hand, complainant was not only in absence

without leave (AWOL), he too did not give heed to the letter request
made the respondent, requiring him to return to work effective
immediately. The same action could already mean a display of his
intention to end his employment relationship with the respondent.

20. Be that as it may that such action is not sufficient to fall

within the ambit of what constitutes abandonment, the fact however
that complainant filed the instant case for illegal dismissal just one
day after his attention was called as to why he closed the office early,
that during the conferences held for this case he refused to return to
work and instead asked an amount FIFTY THOUSAND PESOS (Php
50,000.00)and the fact that he is already working in another
company, clearly proves that complainant has no more intention of
returning to work with the respondent and for such he is considered
to have abandon his work

II. Respondent did not violate any of the

Complainant’s right to due process

21. From the foregoing facts, respondent found it illogical and

lacks the necessity to send Notices of Dismissal towards the
complainant for the simple fact that respondent did not dismissed
him. In fact, he was the one who did not report back to work.

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[B] WHETHER OR NOT
THE COMPLAINANT IS
ENTITLED TO
SEPARATION AND BACK
WAGES

22. Separation pay is defined as “the amount that an employee

receives at the time of his severance from the service and is designed to
provide the employee with the wherewithal during the period that he
is looking for another employment. It is oriented towards the
immediate future, the transitional period the dismissed employee must
undergo before locating a replacement job.”2

23. Separation pay is the payment to a worker who is

permanently laid off his job without his or her fault. It is paid only to
those instances where the severance of employment is due to the
factors beyond the control of the employee.

24. Separation pay is warranted when the cause of termination

is not attributable to the employee’s fault. Such as those provided in
Articles 298 and 299 of the Labor Code.

25. The Supreme Court also allows the grant of separation pay
or financial assistance in the following cases:

1. as a measure of social justice in those instances

where the employee is validly dismissed for causes
other serious misconduct or those reflecting on his
moral character;
2. where the dismissed employee’s position is no
longer available;
3. when the continued relationship between the
employer and the employee is no longer viable due to
the strained relation between them; or

26. When the dismissed employee opted not to reinstated, or

the payment of separation benefits would be for the best interest of
the parties involved3.

27. In the aforesaid circumstances, the grant of separation pay

presupposes that the employee to whom it was given was dismissed
from employment, whether legally or illegally. In fine, as a general
rule, separation pay in lieu of reinstatement could not be awarded to
2
C. Alcantara & Sons, Inc. Vs Court of Appeals, et all., G.R no. 155109, March 14, 2012
3
Claudia’s Kitchen, Inc, et al vs.Ma.Realiza S. Tanguin, G.R no. 221096, 28 June 2017

Page 6 of 9
 an employee whose employments was not terminated by the
employer.

28. Conversely, an employee whose employment was not

terminated by his employer, or who was not dismissed from service,
is not entitled to an award of separation pay.

29. Thus, is the case of Radar Security and Watchman Agency,

Inc. vs Jose D. Castro, the Supreme Court Clarified:

The focal provision is Article 279 of the Labor Code of the

Philippines which provides that "[i]n cases of regular
employment, the employer shall not terminate the services of
an employee except for a just cause or when authorized by
this Title. An employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other
benefits or their monetary equivalent computed from the
time his compensation was withheld from him up to the
time of his actual reinstatement." Undoubtedly, there being
no dismissal of respondent in the present case, the appellate
court has no legal basis to award respondent separation pay
and back wages.

30. In the herein case, it is clear that respondent did not

terminate the complainant. To reiterate, it was in fact the
complainant abandons his work. That even with the letter he
received requesting him to return to work, still he gives to attention
to such. Hence, complainant is not entitled to separation pay and
payment of back wages.

[C] WHETHER OR NOT

COMPLAINANT IS
ENTITLEDTO DAMAGES
AND ATTORNEY’S FEES

31. Art. 2199. Except as provided by law or by stipulation, one

is entitled to an adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation is referred
to as actual or compensatory damages. (Emphasis ours)

32. As we have stated in Dee Hua Liong Electrical Equipment

Corp., v. Reyes, "actual or compensatory damages cannot be
presumed, but must be duly proved, and proved with a reasonable
degree of certainty. A court cannot rely on speculation, conjecture or
guess work as to the fact and amount of damages, but must depend

Page 7 of 9
 upon competent proof that they have suffered and on evidence of the
actual amount thereof. If the proof is flimsy and unsubstantial, no
damages will be awarded."

33. Jurisprudence has consistently held that "[t]o justify an

award of actual damages x x x credence can be given only to claims
which are duly supported by receipts." We take this to mean by
credible evidence.4

Moral damages

34. Moral damages are recoverable when the dismissal of an

employee is attended by bad faith or fraud or constitutes an act
oppressive to labor, or is done in a manner contrary to good morals,
good customs or public policy. 5 In another case, the Supreme Court
provides that, the employee is entitled to moral damages when the
employer acted a) in bad faith or fraud; b) in a manner oppressive to
labor; or c) in a manner contrary to morals, good customs, or public
policy.

35. Bad faith "implies a conscious and intentional design to do a

wrongful act for a dishonest purpose or moral obliquity."6

Exemplary Damages

36. Exemplary damages, on the other hand, are recoverable

when the dismissal was done in a wanton, oppressive, or malevolent
manner.7

37. Bison had clearly shown that it never committed any act of
bad faith, oppressive acts contrary to law, morals, and good customs
of public policy as it never illegally dismissed the complainant. In the
contrary, Bison had been very lenient and graceful in dealing with
them and it was them who acted in dissonance.

Attorney’s Fees

38. With regard to the Attorney’s Fees, The Supreme Court have
clearly stated in a case that, It is settled that in actions for recovery of
wages or where an employee was forced to litigate and, thus, incur
expenses to protect his rights and interest, the award of attorney's
fees is legally and morally justifiable. 8 In the case at hand,
respondent had, respondent never committed any act of bad faith
4
Seven Brothers Shipping Corporation vs. DMC- Construction Resources G.R. No. 193914 dated
November 26,2014
5
Ibid
6
Montinola vs . PAL G.R. No. 198656 Sept. 8, 2014
7
Ibid
8
Alva vs. High Capacity Security Force, Inc G.R. No. 203328 dated November 8, 2017

Page 8 of 9
 against the complainant and even exerted efforts in order to avoid
litigation. Herein respondent was considerate with its approach
towards the complainant as stated in the facts. It even offered the
latter to return back to work during the amicable settlement but was
denied by him, and this litigation was the result of his own illogical
and unreasonable actions.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

of this Honorable Office of National Labor Relation Commission that this
case be DISMISSED and complainant monetary claim for, Separation
Pay, Full Back wages and be DENIED.

Other reliefs just and equitable under the circumstances are

likewise prayed for.

RESPECTFULLY SUBMITTED.
Cagayan de Oro City, July 1, 2020

COLLADO |CONDEZA| LLESIS |UY

PARTNERS & ASSOCIATES
Door 3, Cahilog Bldg., Zone- 1 Apovel Highway, Bulua, Cagayan de Oro City

ATTY. ROLAND E. COLLADO

Counsel for the Respondent
Roll No. 67493
TIN No. 409-403-218-000
IBP OR No. 0095691-11-25-19 (for 2020)
PTR No. 4504859-12-04-19(for 2020)
MCLE COMPLIANCE NO.: VI-0016308 Valid until 04-14-2

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