REPUBLIC OF THE PHILIPPINES

NATIONAL LABOR RELATIONS COMMISSION

SUB-REGIONAL ARBITRATION
BRANCH 6, ILOILO CITY

PAULINE E. BARDENAS
Complainant,

-versus- NLRC SRAB CASE NO.VI-07-50193-15

For: Illegal Dismissal / Money Claims and
Damages
TELE-SKILLS CALL
CENTER,
Respondent.

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POSITION PAPER

Respondent by counsel, respectfully states:

PREFATORY

Security of tenure is a constitutionally guaranteed right. Employees

may not be terminated from their regular employment except for just or
authorized causes under the Labor Code and other pertinent laws. To protect
the labor from the employer’s oppressions, our Labor laws as well as the
present Constitution provide rigid parameter to cause a valid and legitimate
dismissal and severance of employment contract. Nonetheless, the foregoing
parameter, i.e. legal grounds for dismissal and two notice rule to suffice due
process, will only be applied if there is an actual dismissal per se, and cannot
indiscriminately invoked to perpetrate employee’s malicious scheme in
bribing their employers.

Worse, the foregoing rule should not supposedly be used and exploit
by an arrogant employee1 to hold hostage an innocent employer from its
baseless Complaint, by painting before the Honorable Office that she was
illegally dismissed, when in truth and in fact, she’s the one who abandoned
her work, which consequently causes hefty stress to her innocent employer2.

Simply put, this present case is baseless, unwarranted so to speak as

there is no dismissal happened at the first place, it’s all a by-product of
1
Referring to herein complainant.
2
Referring to herein respondent.
complainant calculated moves to showcase her extreme arrogance to
intentionally damage the well established reputation of respondent.

Given the above fact that there was no dismissal to speak of, there can
be no question also as to the legality or illegality thereof. Hence, it deserved
an outrightly dismissal

THE PARTIES

1. Respondent, Tele-Skills Call Center is a sole proprietorship

engages in business process outsourcing (BPO), owned by spouses, Mary
Ann Alegada and Alberto Alegada Jr, being impleaded herein in their
capacity as an Officer thereof, with an office address at 3rd Floor Arguelles
Building, Arguelles Street, Jaro, Iloilo City.

2. Complainant, Pauline Barsenas is a former employee of

respondent who intentionally abandoned her work.

STATEMENT OF THE CASE

3. This is the case of Illegal Dismissal, Money Claims for Service

Incentives Leave Pay, Thirteenth (13th) Month Pay and Separation Pay.

4. This case was set for mediation but parties failed to come up
with reasonable Compromised Agreement, hence, they were directed to file
their respective Position Paper.

STATEMENT OF THE RELEVANT FACTS

5. Complainant started her employment stint with the respondent

as trainee on 05 February 2015. Considering the fact that she is well
equipped with experienced, complainant was receiving an allowance of Four
Hundred Pesos (Php.400.00) per day, which is doubled from the supposed
amount she will received as trainee thereof.

6. Accordingly, when the twenty (20) days training period had

lapsed, she was absorb as contractual employee, handling one of
respondent’s prized client, i.e. Zurich Insurance.

7. However, during her stint as agent, glitches in complainant

character had also started to occur, such as:

a. Refusal to render very necessary

overtime, despite respondent humble plea.
 b. Defiance to reasonable company
policy and order.

c. Initiating trouble and fight within the

work premises and with other employees.

d. Casting bad views against

respondents.

8. Since the account she handled was very important, respondent

merely stomached complainant’s undesirable attitudes, despite the same is a
clear violation of its internal policy on how employee should and supposedly
conduct their selves in dealing and performing their assigned tasked.

9. To address the above discussed nervy defiance of the company

´s rules and regulation, memorandum and several incident report was given
to complainant. Nonetheless, she merely ignored the same.

In her vain attempt not to be bound by it, she refused to receive such
memorandum or take necessary action to correct any of the incident reports,
where she was involved.

A copy of the said incidents reports is hereto attached as Annex 1, 1-

A, 1-B, respectively.

Memorandum given to complainant as Annex 2, 2-A, 2-B and 2-C,

respectively.

A copy of complainant’s Facebook public conversation is attached as

Annex 2.

10. On 05 June 2015, complainant approached respondent,

requesting that she will be allowed to absent as she had to attend some
personal events, which comes to her knowledge almost two (2) weeks
earlier. Considering that the said request was done badly out of time,
respondent refused to heed the same as it cannot abruptly pull out any other
agents for her replacement.

11. Frustrated by the foregoing refusal, complainant with her

sarcastic attitude, insulted respondent by using foul words that could
provoke a fight. In order not to cause altercation or any form of oral tirade
with complainant, respondents on the other hand, merely ignored the same.

12. Cannot be deterred with her fervent desired to absent, which

was denied, complainant again bad mounted respondents when she was
about to get her salary on the even date. With an intention merely to
vindicate itself from intemperate remarks spill out from the very mount of
complainant, respondent break its silence when it handed complainant’s full
and complete salary by uttering a words; “ari sweldo mo, sa lunes wala
kana diri balikan”

Incident Report is hereto attached as Annex 3

13. With her boundless enthusiasm to humiliate respondent,
complainants answered back by saying “nga-a hindi mo ako pagbalikun
haw, mabalik pa ako sa lunes para magkuha sang COE”and swiftly left the
premises, and swiftly left the premises shouting loudly some malicious
statement that can be heard throughout the building.

14. Respondent merely moves its neck from left to right and
scratches its head as it become speechless on how far complainant took his
arrogance against the one, who feed her mount and her family.

15. Without any intention to terminate her employment,

respondents on the next working day, waited complainant to appear before
its office to at least, once and for all, settled whatever issues that transpired
in untoward incident. Nonetheless, complainants never appeared, even the
glimpse of her shadows never showed up on the next succeeding working
days.

16. It is unfortunate that in order to save his neck from the ill
effects of his clear and apparent arrogance, which apparently surprise
respondent, complainant filed this present unfounded Complaints.

ISSUES

I. WHETHER OR NOT, COMPLAINANT IS

ILLEGALY DISMISSED OR SHE HERESELF ABANDONED
HER WORK.

II. WHETHER OR NOT THAT THE UTTERANCE

MADE BY THE COMPLAINANT IS TANTAMOUNT TO
RESIGNATION.

III. WHETHER OR NOT COMPLAINANT IS

ENTITED WITH SEPARATION PAY, SERVICE
INCENTIVES LEAVE PAY AND DAMAGES.

ARGUMENTS/DISCUSSION

Complainant was not illegally

dismissed, she intentionally
abandoned her work,
breeching her employment
contract.
 17. Respondent wishes to point it out in the onset that it never
dismissed complainant from her work. So whatever allegations she
presented in the present Complaint is a mere orchestrated lie, a
manufactured speculations that does not worth one’s salt.

In short, it’s just a mere tale tell, a speculation at its best, a lie at its
finest.

18. As succinctly discussed above, respondent still waited for the

complainant to report for work on the next working day. The very reason
why it allowed complainant to leave the premises unsettled was to at least
cool down the heated conflict cause by the verbal tirade between them.

But for the record, respondent is very willing to retain her as its agent,
but it was the complainant who intentionally abandoned her work, by swiftly
leaving respondent with no recourse but to hire again a set of agents for her
replacements.

19. In Basay et.al v. Hacienda Consolacion3, the Supreme Court

states:

“Fair evidentiary rule dictates that before

employers are burdened to prove that they did not
commit illegal dismissal, it is incumbent upon
the employee to first establish the fact of his or
her dismissal”

In the same case, the Supreme Court also ruled that:

The one who alleges a fact has the burden of

proving it and the proof should be clear, positive
and convincing. In this case, aside from mere
allegations, no evidence was proffered by the
petitioners that they were dismissed from
employment. The records are bereft of any
indication that petitioners were prevented from
returning to work or otherwise deprived of any
work assignment by respondents4.

Based on the foregoing fair rule, following queries herein should be

asked.

(i) Was there any evidence so to speak to prove

that complainant was dismissed from work?

3
G.R. No 175532 April 19, 2010
4
Ibid
 (ii) If there was, can complainant present the
said evidence?

(iii) Was there a termination letter or its

equivalent to prove that complainant was truly
terminated from her post as agent of respondent?

(iv) Was there any records that complainant was

prevented to return from work?

(v) Was there any records to show that

complainant was deprive of work assignment?

Surely, the answer of the above queries is NO! With resounding no as

there was no dismissal happed at the first place. Hence, the Honorable
Office should slain this present Complaint for being no basis under the
attendant circumstances and applicable laws at hand.

20. If respondent made a statements that connotes termination of

employment contract, the same was only made out of outburst, sudden and
uncontrolled emotion, as a result of complainant’s arrogance. But at any rate,
respondent had no intention to suspend, or terminate complainant’s
employment contract, despite it has a valid grounds to do so.

In Duterte v. Kingswood5 citing Veterans Phil. Scout Security Agency

v. NLRC6, the Supreme Court made it clear that in order to consider an
action or an utterance signifying a true “dismissal from employment”, the
same should be coupled with intention to severe the employment contract.
The said jurisprudence reads as follows:

“Hence, the Court’s ruling in Veterans that

the fact of dismissal must be evidenced by
positive and overt acts indicating the intention
to dismiss”

Since the above complainant’s statement was uttered without any

intention to truly dismiss complainant from her work, and only made out of
uncontrolled emotion, there is no dismissal happened so to speak. Hence, to
slain this case on sight must be done.

21. Actually, what is involve in this case is the so called

“abandoned of work”, which can be decisively inferred from complainant’s
subsequent overt act before and right after the altercation happened.
Although settled is the rule that the filling of Complaint is inconsistent with
abandonment. However, the said general rule finds no applications in the
5
G.R. No. 160325 October 4, 2007
6
June 28, 1989, 174 SCRA 347.
present case as it required immediate filling of Complaint based on the
ruling of Supreme Court in Philtranco Service Enterprises, Inc. v. National
Labor Relations Commission7, which states

"Time and again, we have held that the

immediate filing of a complaint for illegal
dismissal by an employee, as in this case, is
inconsistent with abandonment."

In this case, it must be pointed out that complainant file the present
Complaint more than three (3) months from the moment she arrogantly left
his post as agent of respondent. Worst, without telling respondent, she already
fined a new job, in other company, without bothering to abide the existing
contract she had with the respondent.

In short, it was the respondent who breech her employment contract.

22. To be considered as “abandonment of work” the Supreme

Court clearly ruled in Investigation Security Agency, Inc. v. Daquena8,
which was also mentioned in the latest case of Protective Maximum Security
v. Fuentes9 held that:

“. . . "for abandonment of work to exist, it is

essential (1) that the employee must have failed to
report for work or must have been absent without
valid or justifiable reason; and (2) that there must
have been a clear intention to sever the employer-
employee relationship manifested by some overt
acts. . . . Absence must be accompanied by overt
acts unerringly pointing to the fact that the
employee simply does not want to work anymore.”

In Premier Development Bank v. NLRC et.al.10the Supreme Court

enunciates:

“To constitute abandonment, two elements

must concur: (1) the failure to report for work or
absence without valid or justifiable reason, and (2)
a clear intention to sever the employer-employee
relationship, with the second element as the more
determinative factor and being manifested by some
7
351 Phil. 827, 835 (1998)
8
G.R. No. 147473 March 30, 2004
9
G.R. No. 169303 February 11, 2015
10
G.R. No. 114695 July 23, 1998
 overt acts. 23 Abandoning one's job means the
deliberate, unjustified refusal of the employee to
resume his employment”

Applying the foregoing rule, it bears stressing that complainant

deliberately absent herself, predicated merely by its baseless assumption that
she was fired, despite the fact that she is expected to return from work,
banking on the last statement she made before the last time she had an
altercation with the respondent.

As to her clear intention to severe employee-employer relationship,

which could be tantamount to abandonment, she made a statement before
she left her workplace that she intended to secure a Certificate of
Employment, which is an apparent portrayal of his intention to severe the
standing employment contract.

Further, the foregoing intention to abandon her work was strengthen

by the fact that barely a week after the said untoward incident, she already
find a new job from other company.

If complainant did not

abandoned her work with
respondent, she is considered
resigned based on the last
utterance she made. Hence, she
is not entitled for any monetary
claim she sought to collect in
the present case.

23. As ruled by the Supreme Court in Mendoza v. HMS Credit11,

which states that resignation is:

“a formal pronouncement or relinquishment of a

position or office — is the voluntary act of an
employee who is in a situation where he believes
that personal reasons cannot be sacrificed in favor
of the exigency of the service, and he has then no
other choice but to disassociate himself from
employment. The intent to relinquish must concur
with the overt act of relinquishment; hence, the
acts of the employee before and after the alleged
resignation must be considered in determining
whether he in fact intended to terminate his
employment.

11
G.R. No. 187232 April 17, 2013
 It bears stressing that before complainant get wild due to refusal of her
request to absent from work. She already made a statement that clearly
entails intention to relinquish her employment contract with respondent i.e.
“mabalik pa ako sa lunes para magkuha sang COE”

Normally, the above statement is being uttered by an employee right

after he/she resigned from work to signify closure and severance of
employee-employer relationship, and such Certification can be utilized as a
proof of his/her employment history that should be presented in his/her
subsequent employer. Hence, there is no doubt that complainant, at any rate,
have a strong intention to resigned from her work due to the fact that she
could no longer accommodate all her hectic schedule of long list of personal
event to attend with, wherein to disassociate herself from respondent is her
only recourse, in order not to compromise such personal engagement.

Hence, the above discussed last utterance made by the complainant is

considered as a significant indication that she is resigning from work. As a
consequences of the said resignation, complainant also relinquish whatever
benefits she is entitled under the premises of law. The foregoing is based on
the general rule enunciated by the Supreme Court in Mendoza v. HMS
Credit12, which states:

“generally, an employee who voluntarily

resigns from employment is not entitled to
separation pay, an arrangement whereby the
employee would receive separation pay despite
having resigned voluntarily constitutes a contract
which is freely entered into and which must be
performed in good faith”

Since there is no standing agreement or whatsoever that effectuate the

claim of separation fee upon resignation. Thus, complainant is not entitled
the same.

Complainant is not entitled for

Service Incentive Leave Pay as
she does not rendered a
required period to entitle such
Monetary Claim.

24. To lend semblance that the monetary claim she sought as relief
in the present Complaint is legitimate, complainant made it appears that she
is entitled with the Service Incentive Leave Pay.

12
G.R. No. 187232 April 17, 2013
 Complainant in the foregoing matter is wrong! As provided by Article
95 of Labor Code

ART. 95. RIGHT TO SERVICE INCENTIVE

LEAVE. – (a) Every employee who has rendered at
least one year of service shall be entitled to a
yearly service incentive leave of five days with
pay.

Since Complainant rendered merely a service of less than (1) year, to

be exact less than five (5) Months, even to include those training period,
wherein she is not considered as yet an employee, she cannot in any way
received such amount for wants of legal basis.

By failure of Complainant to
return from work, or to insist
in returning to work, deprived
respondents to effectuate due
process prescribe by laws.

25. Considering that complainant deliberately abandoned her work,

and failure to report on the next working day, there was no opportunity for
the respondent to comply with two notice rule or to conduct hearing on that
regards to suffice the procedural due process requirements as mandated by
law. But at any rate, it is worth telling that respondents, is not required by
law to comply the requisites for due process in terminating complainant as at
first, she was never terminated from her employment.

26. For the records, respondents exerted utmost effort to correct

complainant’s ill attitude, by informing her of all infractions she committed
during her stint as employee of respondent. Nonetheless, she ignored all of
it, as if she never commit the same.

Hence, the charge of illegal dismissal must fall for lack of factual
basis.

Service by Post

Copies of this pleading cannot be personally served upon other parties

because of distance and time constraints, which therefore render personal
service and filing impractical and inefficient.

RELIEF
 WHEREFORE, it is most respectfully prayed that a Decision be
rendered by this Honorable Office

(i.) declaring that;

a.) complainant was legally dismissed;

b.) complainant is not entitled for

separation pay, service incentives
leave pay and 13th month pay;
(ii.) Ordering complainant to pay damages by way
of attorney’s fee.
Other remedies just and equitable under the premises is likewise
prayed.

Iloilo City, 12 October 2015

MARIANIE C. TANATE
PTR No. 3738164/ 1-14-2015/Iloilo City
IBP Lifetime Mem. No. 0986661/6-24-2015/Iloilo Chapter
Attorney’s Roll No. 63444
(Admitted to BAR in 2014; exempted until next compliance period)

MELCHOR C. VILLALOBOS
PTR No. 0349017/01-05-15/Pasig City
IBP No. LRN-0981340/01-05-2015/ Iloilo Chapter
Attorney’s Roll No. 61783
(Admitted to BAR in 2013; exempted until next compliance period)