Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VII
Cebu City

BERNARDINO S. POSTRERO,
Complainant,

-versus- NLRC RAB-VII CASE

NO.11-2072-17

STO. NIÑO VILLAGE HOMEOWNERS

ASSOCIATION, INC.,
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - /

REPLY TO THE RESPONDENT’S

POSITION PAPER
 
     COME NOW, complainant, by and through his undersigned
counsels, unto this Honorable Commission most respectfully
submit his REPLY TO THE RESPONDENT’S POSITION PAPER
in the above-entitled case, and hereby most respectfully allege:
THAT-
 
COMPLAINANT WAS CONSTRUCTIVELY
DISMISSED; DENIED ENTRY TO THE
VILLAGE; ILLEGALLY SUSPENDED AND IS
ENTITLED TO ALL THE CLAIMS PRAYED
FOR BY THE COMPLAINANT IN HIS
POSITION PAPER

In the Respondent’s Position Paper, respondent had

strongly raised as a DEFENSE that the complainant was not
dismissed (actually or constructively). In support to their claim
the respondent submitted ONLY a handwritten letter by the
head guard, attached to their position paper as Annex “3”.
THIS IS A PRIVATE DOCUMENT AND IS SELF-SERVING.
There has been no formal report regarding this incident.

Sto. Niño Village is considered as one of the prestigious

Subdivisions in the city and equipped with security cameras

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and CCTVs in the guardhouse, clubhouse, Office and others.
The administration office of the Sto. Niño Village Homeowner’s
Association, Inc. (SNVHAI for brevity) controls it. Although it is
found in their Code of Discipline that they should wear the
prescribed uniform ONLY when they would perform their
work. NOWHERE in the Code of Discipline that states that the
employees should wear their uniform upon entering the Village
gates. IT HAS BEEN A PRACTICE TOLERATED BY THE
SUBDIVISION THAT WHEN COMING TO WORK THE
UTILITY PERSONELL ARE ALLOWED TO COME IN THEIR
COMFORTABLE CLOTHING AS LONG AS THEY WOULD
CHANGE INTO THEIR PRESCRIBED UNIFORM WHEN THEY
WOULD START WORKING. The complainant has been an
employee of the respondent for over 20 years and it has ripen
into company practice that they allow their employees to enter
the village wearing comfortable clothing upon entering and
leaving the village AS LONG AS THE EMPLOYEE WOULD
WEAR THE PRESCRIBED UNIFORM WHEN THEY WOULD
PERFORM THEIR WORK. Normally, upon arrival into the
village and upon reporting for work, the utility personnel
would have with them their personal belongings, they would
have to leave their bags, extra shirts, lunch boxes and
personal hygiene kit in their respective lockers and they would
likewise change into their uniform in their lockers.

Attached herein is Annex “A” the original affidavit of

Angelisa Del Rosario a vendor beside the gate of Sto. Niño
Village who witnessed that the complainant was denied
entry into the village; the witness further testified that she
has seen other employees on different days who came in
and out of the Village wearing comfortable clothing.

The alleged handwritten letter that they claimed as an

INCIDENT REPORT IS SELF-SERVING, it being a private
document and not supported with any other proof that the
complainant reported to work with a strong smell of liquor at
around 8 o’clock in the morning on September 27, 2017. The
incident report could easily be fabricated and antedated since
it is merely a letter and it was NOT EVEN RECORDED IN THE
SECURITY LOG BOOK AND INCIDENT REPORTS OF THE
DAY. Neither was it recorded and transmitted to the

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Administration Office of the Association. If indeed this was
duly executed the respondent SHOULD HAVE ATTACHED A
TRANSMITTAL OF THE CORRESPONDENCE, THE INCIDENT
REPORT LOG BOOK ON THAT PARTICULAR DAY AND DULY
RECORDED IN THE SECURITY GUARD’S LOG BOOK AND
NOT MERELY WRITTEN ON A BLANK SHEET OF PAPER and
then they would later on claim the importance of the self-
serving letter which was executed merely as an after-thought.

Assuming without a moment admitting that the

complainant smelled of liquor on September 27, 2017 as what
the respondent claims to be; the complainant could not have
successfully filed a Labor complaint before the Department of
Labor and Employment (DOLE for brevity). The Honorable
Commission with all due respect should consider the
circumstances of the allegation of the Respondent and the
subsequent and overt acts of the complainant. A logical and
prudent man would conclude that had the complainant
smelled of liquor when he presented himself to the Sto. Niño
Village entrance, he would not have successfully presented
himself to the DOLE officer and thereafter successfully filed a
complaint.

The truth of the matter is that the complainant reported

for work in the morning of September 27, 2017, he was
refused entry by the village guard because the latter has to call
the administration office if the complainant-Bernardino
Postrero is allowed to enter the village premises and resume
his work. The complainant was made to wait outside. After a
few minutes when there was no feedback from the village
guard, the complainant approached the guardhouse once
more to check if he could get inside, however it was the head
guard who spoke with the complainant that he is not allowed
to get inside because Mrs. Alivio instructed them that he is not
allowed to enter the village premises and further prevented
from reporting to work. That if the complainant insists, the
guards would have to answer to Mrs. Alivio and would risk
losing their job as well.

Upon hearing this from the head guard, the complainant

IMMEDIATELY WENT TO THE DOLE TO FILE A COMPLAINT

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AGAINST THE RESPONDENT FOR CONSTRUCTIVE
DISMISSAl for illegally dismissing him without a just or
authorized cause without observing due process in dismissal
cases. If the complainant’s breath had smelled of liquor, the
DOLE officer would not have entertained the complaint filed by
the latter and would have advised the complainant to go home
and come back on some other time, moreover, the DOLE
officer should have noted in the complaint log book that the
complainant is drunk.

The respondent further claims under paragraph 3.7 page

3 of their position paper that upon learning of the incident
they immediately reached out to Bernardino Postrero and
reminded him to report to work on the following day. If this
statement were true as what the respondent claimed to be,
they would have attached proof of their timely intervention.
This allegation of the respondent is entirely MISPLACED,
PATENTLY ERRONEOUS, FALSE, BASELESS, UNFOUNDED
AND FABRICATED for the following reasons:

1. Firstly, NO DOCUMENTARY EVIDENCE was ever

presented or submitted by the respondent to
substantiate their claim and prove that they
immediately contacted the complainant to report to
work. The respondent should at least presented
screenshots of call log and text messages sent to the
complainant for him to return to work. if they sent
MEMORANDUM or NOTICES to the complainant, they
should have attached proof of his receipt and proof of
due diligence to reach out to the complainant so that
he could return to work;

2. Second, the alibi of the respondent that they

performed timely intervention of reaching out to the
complainant to return to work was ALSO MERELY AN
AFTER THOUGHT when the respondents received a
NOTICE OF CONFERENCE SENT BY THE DOLE TO
THE STO. NIÑO VILLAGE HOMEOWNER’S
ASSOCIATION, INC. (SNVHAI for brevity). The Notice
of Conference was dated September 27, 2017 and
was served upon the respondent on September 28,

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 2017 as attached in the position paper of the
Respondent as Annex “5”. The said attachment
indicated a scheduled conference with the
complainant on October 9 and 10, 2017 before the
Department of Labor and Employment (DOLE)

The Respondent alleged in Paragraph 3.8 page 3 of the

their Position Paper that a Memorandum for Absence without
Official Leave dated September 30, 2017 was sent to the
complainant on October 2, 2017 and sent through registered
mail on October 3, 2017. Clearly this subsequent acts made
by the complainant were merely JUST AN AFTER THOUGHT to
justify their previous overt acts committed towards the
complainant. SINCE THE NOTICE OF CONFERENCE WAS
SENT TO THE RESPONDENT ON SEPTEMBER 28, 2017,
THEY HURRIEDLY AND HASTILY CONCEALED THEIR
TREACHEROUS ACTS TO CONSTRUCTIVELY DISMISS AN
EMPLOYEE.

The respondent allegedly sent a MEMO dated September

30, 2017 and delivered to the complainant on October 2 and
3, 2017, however records before the DOLE disclose that the
complainant was constructively dismissed on September 27,
2017 when he was prevented from reporting to work after the
expiration of his suspension. 1 In the Respondent’s Position
Paper, they made it appear that they sent the Memo days
before they received the Notice, WHEN IN FACT THEIR CLAIM
IS MERELY AN ALIBI.

Indeed the complainant complied with the suspension

order despite the fact that he has been absent from work due
to the injury that he suffered. The complainant wanted to be
reinstated to his previous position without loss of seniority
rights, however, complainant believes that if he would be
reinstated into his previous position the respondent would still
create a hostile environment and would still lead to
constructive dismissal.

The complainant in this case could not have abandoned

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Testified by Aneglisa Del Rosario in her Affidavit attached as Annex “A”, and made as
an integral part of this Reply to the Position Paper of the Respondent.

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nor neglected his duties and responsibilities because
immediately after the latter was denied entry into his work
place, he filed a complaint before the DOLE on the same day.

The respondent raised in their position paper, Paragraph

6 page 4, that they asked the complainant to write a letter
about his predicament and grievances. We would like to direct
this Honorable Commission to review the letter addressed to
the respondent, attached in the Respondent’s position paper
as Annex “6”. Upon carefully reading the said letter, THERE
IS NOTHING ARROGANT AND DISRESPECTFUL IN THE
CONTENTS OF THE LETTER. The respondent asked that he
write a letter of his predicament, the complainant merely
complied and written into words how he felt about the
incident.

Under paragraph 7, page 4 of the Position Paper, the

respondent further claim that they sent notice for
administrative hearing with the complainant in SNVHAI
Administration Office. However, this notice was repeatedly
done as an AFTER THOUGHT, TO IRON OUT THE MESS
THAT THEY CREATED, TO COVER UP THEIR
SHORTCOMINGS IN THE CONSTRUCTIVE DISMISSAL
COMMITTED AGAINST THE COMPLAINANT. They tried to
cover up their tracks by sending out notice of administrative
hearings, when in fact a complainant was already filed before
the National Labor Relations Commission (NLRC for brevity)
on November 6, 2017.

The respondent strongly sited as a defense in their

position paper, paragraph 8, page 4 that despite the warning
against the complainant’s failure to appear, it was not
enforced. This statement is entirely false, fabricated and
misleading because sometime in November 2017, one of the
homeowners of SNVHAI named Marina Stella Uy a.k.a. Maris
Uy contacted the complainant because she has heard that the
complainant was constructively dismissed by SNVHAI. Maris
Uy then offered a pakyaw job to the complainant so that he
would have other means to sustain his family. While he was
working on the garden of Ms. Maris Uy, he was shooed away
by the village guards.

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Attached herein is Annex “B”, an original copy of the Affidavit
executed by Marina Stella Uy a.k.a Maris Uy on December 26,
2017.

The Respondent’s contention that they did not terminate

the complainant is misplaced because the complainant can’t
even get inside the village premises to get his belongings that
he left inside his locker in the village clubhouse, to obtain
witnesses that he was shooed away while cleaning the garden
of one of the homeowners. He had to ask his wife to seek the
help of Maris Uy to execute an affidavit that the complainant
was banned from the village.

In the position paper of the respondent, they persistently

claim that they did not terminate the complainant; however,
contrary to their claims, their actions speaks otherwise.

MOREOVER, the Respondent attached in their position

paper Annex “7” wherein they are calling for an administrative
hearing dated November 4, 2017. They wanted to conduct an
administrative hearing for the incident that happened on
March 2017. We would like to enlighten this Commission that
it was on March 2017, the complainant was illegally
suspended without any valid reason. The latter was not even
given the opportunity to be heard; hence a delayed notice of
administrative hearing dated November 4, 2017. The
respondent claims that this was sent through registered mail
on October 3, 2017, however based on the Respondent’s
position paper it was Annex “4” that was sent through
registered mail on October 3, 2017 evidenced by Annex “4-B”.
Even so, a notice issued on November 4, 2017 for acts
complained of on March 2017 was made out of time after the
lapse of 8 months, only then they tried to conceal their
wrongful acts.

In the case before us, there has been a series of

suspension since March 2017 due to the absence and
tardiness of the complainant as alleged by the respondent.
Based on the foregoing circumstances alleged by the
respondent as against the overt acts of the employee; the

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respondent contended that the complainant was suspended
several times this year because the latter failed to inform the
Administration Office every time he would incur absences or
emergency leave. The complainant on the other hand
controverts their allegation because he has been informing the
Administration Office whenever he would apply for a sick leave
or vacation leave. The complainant-Postrero in this case
informed the Office whenever he would not be able to make it
to work on that day or for a few days.

The complainant has been an employee of SNVHAI for

more than 20 years the continuous employment of the
complainant indicated that he must have been a highly
efficient worker, who should be retained despite occasional
lapses in punctuality and attendance. Perfection cannot after
all be demanded.2 The markings in the attendance sheet of the
complainant are “Sick leave”, “x” and “absent”. There is
nothing in the attendance sheet that indicated that the
complainant has incurred Absence Without Official Leave
(AWOL). The markings that indicate absent does not
necessarily mean that the complainant has incurred
unauthorized absences. The respondent refused to indicate
that the complainant has incurred leave or emergency leave
because the leave might be credited to his monthly salary,
hence the placed the word absent.

Suspension does not mean that due process may be

disregarded.3 Moreover, the Supreme Court ruled that:

“IF THE BASIS OF THE PREVENTIVE SUSPENSION

IS THE EMPLOYEE’S ABSENCES AND TARDINESS, THE
IMPOSITION OF PREVENTIVE SUSPENSION ON HIM IS
NOT JUSTIFIED AS HIS PRESENCE IN THE COMPANY
PREMISES DOES NOT POSE ANY SUCH SERIOUS OR
IMMINENT THREAT TO THE LIFE OR PROPERTY OF
THE EMPLOYER OR OF THE EMPLOYEE’S CO-
WORKERS SIMPLY BY INCURRING REPEATED
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ABSENCES AND TARDINESS.” (EMPHASIS SUPPLIED)

With all due respect, the RESPONDENT may have

MISAPPLIED AND MISCONSTRUED the principle on
2
RIZAL EMPIRE INSURANCE GROUP AND/OR SERGIO CORPUS v. NLRC, G.R. No.
73140 May 29, 1987
3
R.B. MICHAEL PRESS V GALIT, G.R. No. 153510, Feb 13, 2008.
4
Valiao v. Court of Appeals, G.R. No. 146621, July 30, 2004. (EMPHASIS OURS)

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“CONSTRUCTIVE DISMISSAL” as clearly laid in a plethora of
cases decided by the Supreme Court explaining the principle
along with the application thereto.

In the case of FRANCISCO VS. NLRC, G.R. No. 170087;

August 31, 2006, the Supreme Court discussed the concept of
constructive dismissal:
“Constructive dismissal is an involuntary
resignation resulting in cessation of work resorted
to when CONTINUED EMPLOYMENT BECOMES
IMPOSSIBLE, UNREASONABLE OR UNLIKELY;
when there is a demotion in rank or a diminution in
pay; or WHEN A CLEAR DISCRIMINATION,
INSENSIBILITY OR DISDAIN BY AN EMPLOYER
BECOMES UNBEARABLE TO AN EMPLOYEE.
Where an employee ceases to work due to a
demotion of rank or a diminution of pay, an
unreasonable situation arises which creates an
ADVERSE WORKING ENVIRONMENT
RENDERING IT IMPOSSIBLE FOR SUCH
EMPLOYEE TO CONTINUE WORKING FOR HER
EMPLOYER.  HENCE, HER SEVERANCE FROM
THE COMPANY WAS NOT OF HER OWN MAKING
AND THEREFORE AMOUNTED TO AN ILLEGAL
TERMINATION OF EMPLOYMENT.”(Emphasis
supplied)

The test of CONSTRUCTIVE DISMISSAL is whether a

reasonable person in the employee’s position would have felt
compelled to give up his position under the circumstances. It
is an act amounting to dismissal but made to appear as if it
were not. CONSTRUCTIVE DISMISSAL IS THEREFORE, A
DISMISSAL IN DISGUISE.5

More concretely, the employer in illegal dismissal cases

would normally defend and justify the termination but in
constructive dismissal, there being no express dismissal to
speak of, the employer would normally contend that there was
no termination at all. (This was discussed in the book of J.G.
Chan, Bar Reviewer on Labor Law, 2014 second revised
edition.)

5
Ang v. San Joaquin, Jr. G.R. No. 185549, Aug 7, 2013; Galang v. Malasugui, G.R. No.
174173, March 7, 2012

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 In terms of evidence, in illegal dismissal cases,
documentary, testimonial and other forms of evidence are
adduced by the employer to secure affirmation from the court
of the validity of the termination; IN CONSTRUCTIVE
DISMISSAL, the employer, who normally denies the
termination, WOULD ADVANCE ARGUMENTS AGAINST THE
CIRCUMSTANTIAL EVIDENCE BEING PRESENTED BY THE
EMPLOYEE TO PROVE HIS CONSTRUCTIVE DISMISSAL.

THE ACT OF THE RESPONDENT IN DENYING TO THE

COMPLAINANT ENTRY TO THE WORK AREA IS
TANTAMOUNT TO CONSTRUCTIVE DISMISSAL.

Barring the employees from entering the premises

whenever they would report for work in the morning without
any justifiable reason, and they were made to wait for a
certain employee who would arrive in the office at around
noon, after they had waited for a long time and had left6 which
constitutes constructive dismissal.

In the case of Litonjua Group of Companies v. Vigan,

G.R. No. 143723, June 28, 2001, the Supreme Court firmly
ruled that: “PREVENTING THE EMPLOYEE FROM
REPORTING FOR WORK BY ORDERING THE GUARDS NOT
TO LET HER IN. THIS IS CLEAR NOTICE OF DISMISSAL”
(EMPHASIS SUPPLIED)

Respondent, in GROSS AND EVIDENT BAD FAITH,

WILLFULLY AND DELIBERATELY FALSELY
MISREPRESENTED UNDER OATH IN THEIR POSITION PAPER
that they did not constructively dismiss or illegally terminate
the complainant herein, and that the latter was denied entry
into the work premises because he was wearing comfortable
clothing and smelled of liquor, as such the respondent claims
that they should not be liable for Constructive
Dismissal/illegal dismissal, as there was NO OVERT ACT to
dismiss the complainant.

WITH ALL DUE RESPECT, we strongly beg to disagree. It

6
New Era marketing, Inc v. CA, GR No. 140555, July 14, 2005

10
is humbly submitted that the complainant has obtained
witnesses who can testify that he was denied entry, shooed
away from the garden of one of the homeowners who hired his
services after he was constructively dismissed. The
complainant was prevented, barred and prohibited to enter
into the work premises and continue working with the
respondent.

Indeed, the aforesaid request made by the complainant

from the respondent were just, valid and legal, and in
accordance with law. Notwithstanding repeated pleas,
respondent had constructively dismissed the complainant
herein. Thus, herein complainant was COMPELLED to
promptly file this instant case against the respondent, among
others, for ILLEGAL DISMISSAL with prayer for reinstatement
and PAYMENT OF FULL BACKWAGES or PAYMENT OF
SEPARATION PAY IN LIEU OF REINSTATEMENT before the
Honorable Labor Arbiter, to protect and vindicate his just,
valid right and legal interest.

PRAYER

Wherefore, it is most respectfully prayed of this

Honorable Commission, to render a decision, in favor of the
complainant, as follows:

1. Declaring the DISMISSAL of the complainant by the

respondent ILLEGAL, Constructive dismissal is dismissal in
disguise, and ordering the immediate reinstatement of the
complainant to his previous position without loss of
seniority plus full backwages in accordance with law;

2. Ordering the respondent to pay the complainant’s FULL

BACKWAGES, 13TH MONTH PAY due to the complainant
from January 2017 to September 2017; or

3. PAYING THE COMPLAINANT THE BENEFITS DUE HIM AS

PRE-COMPUTED PLUS THE BENEFITS THAT HAVE TO BE
COMPUTED FROM THE RECORDS OF THE HUMAN
RESOURCE DEPARTMENT OF RESPONDENT BY WAY OF
SEPARATION PAY IN LIEU OF REINSTATEMENT;

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4. Moreover, Ordering the respondent to pay the complainant
the following damages:

i. Nominal Damages in the amount of ONE

HUNDRED THOUSAND PESOS
(P100,000.00)
ii. Moral Damages in the amount of ONE
HUNDRED THOUSAND PESOS
(P100,000.00)
iii. Exemplary Damages in the amount of
FIFTY THOUSAND PESOS (P50,000.00)
iv. Attorney’s Fees equivalent to TEN
PERCENT (10%) of the amount due and
payable to the herein complainant.

Complainant prays for such other reliefs just and

equitable under the premises.

Cebu City, Philippines.

December 28, 2017.

CABRERA SIPALAY MAYOL SALAS & BACALSO

LAW OFFICES
Room 206, Aniceta Bldg.,
Osmeña Blvd., Capitol Site, Cebu City
Tel. No. (032) 255-7476 ; (032)255-2872

By:
 

ALFREDO J. SIPALAY
Counsel for the Complainant
IBP No. 1058995; 1-03-17; Cebu City
PTR No. 13262067; 1-03-17; Cebu Province
Attorney’s Roll # 36962
MCLE Compliance No. V-0003632/09-08-14

ATHENA M. SALAS
Counsel for the Complainant

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 Roll of Attorneys No. 65125
IBP No. 015117; Lifetime; June 17, 2016
PTR No. 13258842; December 5, 2016; Cebu Province
MCLE Compliance B.O No.1 Series of 2008

 
EXPLANATION
We hereby certify that we have furnished a copy of this
Reply to Respondent’s Position Paper by Registered Mail due to
lack of personnel to cause personal service.

Copy Furnished by registered mail:

ATTY. NILO G. AHAT Received by:_______________

Room 203 Asiana Ship Management Inc. Date:_______________________
2nd Floor Asiana Bldg.
Gen. Maxilom Ave. Ext., corner, 3rd Street
North Reclamation Area, Cebu City

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