REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
QUEZON CITY

EMILIO DE LARA,
Complainant,

NLRC CASE NO.

- versus - NLRC-11-16834-99-R
(Hon. Labor Arbiter Eliza
Martinez)

EVERGREEN FUNERAL
HOMES AND CREMATORY,
INC. and VALENTIN
VENTURA,
Respondents.

x-----------------------------------------------------------------------------------------x

POSITION PAPER
(for the Complainant)

Complainant, EMILIO DE LARA, by counsel, to this

Honorable Office, respectfully submits this Position Paper and
states:

PREFATORY STATEMENT

The Constitution looks with compassion on the working

class and is intent in protection their rights. A worker's
employment is property in a constitutional sense, and he/she
cannot be deprived thereof without due process and unless the
deprivation is commensurate to his/her acts and degree of moral
depravity. While the Court recognizes the right of an employer to
terminate the services of an employee for a just or authorized
cause, the dismissal must be made within the parameters of law
and pursuant to the tenets of equity and fair play. An employer's
power to discipline his employees must not be exercised in an

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arbitrary manner as to erode the constitutional guarantee of
security of tenure.”1

“Where a penalty less punitive would suffice, whatever

missteps may be committed by labor ought not to be visited with
a consequence so severe. It is not only because of the law’s
concerns for workingmen. There is, in addition, his family to
consider. Unemployment brings untold hardships and sorrows
on those dependent on the wage earner. The misery and pain
attendant on the loss of jobs then could be avoided if there be
acceptance of the view that under all circumstances of a case, the
workers should not be deprived of their means of livelihood.”2

STATEMENT OF THE CASE

Complainant filed this illegal dismissal case before this

Honorable Commission on 26 August 2018. Likewise, he prayed
for the payment of service incentive leave, 13 th month pay,
separation pay, moral and exemplary damages and attorney’s
fees. The parties failed to reach an amicable settlement during
the conciliation conferences conducted before the Single-Entry
Approach and the Office of the Labor Arbiter, prompting the
Commission to direct the parties to submit their position
papers.

PARTIES

EMILIO DE LARA (hereinafter referred to as the

Complainant) is of legal age, married, Filipino and a resident of
700 General Kalentong Street, Barangay Pag-asa, Mandaluyong
City. For purposes, however, of the present action, he may be
served with summonses and other legal processes through the
undersigned counsel at the address hereunder indicated.

EVERGREEN FUNERAL HOMES AND CREMATORY, INC.

(hereinafter referred to as Evergreen) is a memorial and
cremation services company organized and existing under
Philippine laws with business address at 543 C. Raymundo
Avenue, San Miguel, Pasig City, Philippines.

VALENTIN VENTURA, (hereinafter referred to as

Respondent Ventura) is of legal age, married, Filipino and being
impleading in this case being the Funeral Service Director, who

1
Zagala vs. Mikado Phils. Corp., 534 Phil. 711, 720 (2006).
2
Almira vs. B.F. Goodrich Phils. Inc., G.R. No. L-34974 (1974).

2
has supervision over the staff and primarily monitors funeral
service operations. Respondents may be served with
summonses and other legal processes through the business
address aforementioned.

FACTS OF THE CASE

1. On 17 May 2015, Complainant was hired by Evergreen

as a Funeral Service Aide in the latter’s Pasig City memorial
chapel with a remuneration of Four Thousand Seven Hundred
and Fifty Pesos (Php 4,750.00) per month and a work schedule
of Monday to Saturday, 2pm to 10 pm;

2. As was indicated in the job description upon

application and the employment contract upon hiring,
Complainant was responsible for all aspects of preparing a
facility for a funeral, including but not limited to: (a) preparing
the parlor area by cleaning, setting up lights and arranging
flowers, and setting up chairs for viewing; (b) assisting guests as
they arrive at funeral events and leading them to the chapel
area; (c) answer questions and offer assistance to clients in
coordination with the funeral director to help arrange
engagements; (d) work with a team to prepare chapels and burial
sites with personalized items as requested by clients; (e) assist
with cremations and the processing and the packaging of
cremated remains (f) clean, store and move funeral equipment
as needed to set up and clean up after service (g)

3. Complainant was caught several times violating the

company policy on the prohibition against the receipt of or
accepting food, gifts, kickbacks, bribes, tips, food, and other
items of similar import from its clients.

4. The first reported incident occurred on 25 February

2016. Complainant was seen with client’s food in his possession.
Being his first infraction that involved other employees,
Complainant was made to participate in a company-wide re-
training and was issued only an incident report. 3 In the report,
it was explained to De Lara that this violation constituted a Class
3 Offense4 and an Offense against Ethical Behavior. Complainant

3
A copy of the Incident Report dated 25 February 2016 is attached as Annex “A”
4
Class 3 – Ethical Behavior
o Receipt of Gifts, Kickbacks, Bribes and Tips
o Gross Act of Dishonesty; and
o Failure to do job assignment, stubborn behavior, uncooperative attitude, discourtesy
or refusing to obey orders of superiors pertaining to work resulting in material

3
was asked to explain his actions. Thus, he submitted a written
explanation5.

5. On 24 July 2018, Complainant was again caught

having committed the same Class III Company violation when
he had platters of food hidden inside the cremation room that
were taken or received from a client. Evergreen issued
Complainant an Employee Warning Notice the following day, to
which Complainant responded to with an explanation. 6

6. On 5 August 2018, Complainant was allegedly caught

for the third time hiding platters of food inside the cremation
room which where either taken or received from clients. This
occurred while the previous investigation was still ongoing.
Evergreen issued Complainant another Notice to Explain7.
Complainant complied on the same day.8

7. Complainant was said to have committed

Insubordination and Abandonment of Duty when he was caught
walking off the company premises against the direct instruction
of the Facilities Supervisor, Mr. Mario Sanchez. Accordingly,
another Notice to Explain9 was issued. Included in said Notice
was a Report of a prior similar incident, where Complainant
disregarded the Supervisor’s direct instruction to proceed with
the cremation preparation. A written explanation 10 was
submitted by Complainant.

8. After investigation and careful evaluation of the

Complainant’s numerous and repeated violations, Evergreen
terminated his services on 7 August 2018 and was further
informed that the decision could be appealed upon receipt of
any new or additional evidence for reconsideration.11

9. However, Complainant took the same as final and did

not file for an appeal as he was unable to provide any new or
additional evidence for reconsideration.

damage or losses to the company; violation of lawful order or rules/regulations in the

performance of the job

5
A copy of the Incident Report dated 25 February 2016 with the written explanation is attached as
Annex “B”
6
A copy of the Employee Warning Notice dated 25 July 2018 is attached as Annex “C”
7
A copy of the Notice to Explain dated 6 August 2018 is attached as Annex “D”
8
A copy of Complainant’s Written Explanation dated 6 August 2018 is attached as Annex “E”
9
A copy of the Notice to Explain to Explain dated 6 August 2018 is attached as Annex “F”
10
A copy of Complainant’s Written Explanation dated 6 August 2018 is attached as Annex “G”
11
A copy of the Termination Letter dated 7 August 2018 is attached as Annex “H”

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 10. With the termination of his employment,
Complainant filed this instant case for illegal dismissal,
nonpayment of service incentive leave, 13th month pay,
separation pay, moral and exemplary damages and attorney’s
fees.

ISSUES

I. WHETHER OR NOT COMPLAINANT WAS ILLEGALLY

DISMISSED

II. WHETHER OR NOT COMPLAINANT IS ENTITLED TO

REINSTATEMENT, BACKWAGES, DAMAGES AND
ATTORNEY’S FEES

DISCUSSION AND ARGUMENTS

Complainant was
illegally dismissed

11. Dismissal from employment has two facets: first the

legality of the act of dismissal, which constitutes substantive
due process; and, second, the legality of the manner of
dismissal, which constitutes procedural due process.12

12. The substantive aspect of which means that the

dismissal must be for any of the (1) just causes provided under
Article 297 [282] of the Labor Code or the company rules and
regulations promulgated by the employer; or (2) authorized
causes under Articles 298 (283] and 299 [284].

13. The burden of proving that the termination of an

employee was for a just or authorized cause lies with the
employer. If the employer fails to meet this burden, the
conclusion would be that the dismissal was unjustified and
therefore, illegal.13

12
Maula v. Ximex Delivery Express, Inc., 804 Phil. 365, 378 (2017),
13
Maersk-Filipinas Crewing, Inc., et al, v. Vetruz, CA-G.R. SP No. 136293, November 10, 2014

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 14. Under Article 297 of the Labor Code,14 the just causes
an employer may terminate an employment for any of the
following causes:

(a) serious misconduct or willful disobedience by the

employee of the lawful orders of his employer or
representative in connection with his work;
(b) gross and habitual neglect by the employee of his
duties;
(c) fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative;
(d) commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized
representative; and
(e) other causes analogous to the foregoing.

15. The cause of dismissal of an employee must fall

under those causes identified by law and jurisprudence in order
to constitute a valid dismissal. Otherwise, the dismissal will be
illegal.

16. The termination of De Lara was brought about by the

alleged repeated violations of Company’s policy prohibiting
acceptance of food coming from the clients. De Lara is also
alleged to have committed insubordination and abandonment
of his duty.

17. The acts complained of, however, do not constitute a

just cause contemplated by the Labor Code.

18. In Coca-Cola Femsa Philippines Inc. vs. Alpuerto, citing

Nagkakaisang Lakas Ng Manggagawa sa Keihin v. Keihin
Philippines Corp., the Court laid down what constitutes
misconduct to justify dismissal:

Misconduct is defined as "the transgression of some

established and definite rule of action, a forbidden act, a
dereliction of duty, willful in character, and implies
wrongful intent and not mere error in judgment." "For
serious misconduct to justify dismissal under the law, "(a)
it must be serious, (b) must relate to the performance of
the employee's duties; and (c) must show that the

14
Art. 297, Labor Code of the Philippines

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 employee has become unfit to continue working for the
employer."

19. For willful disobedience to be a valid cause for

dismissal, these two elements must concur: (1) the employee’s
assailed conduct must have been willful, that is, characterized
by a wrongful and perverse attitude; and (2) the order violated
must have been reasonable, lawful, made known to the
employee, and must pertain to the duties which he had been
engaged to discharge.

20. It bears stressing that not every case of

insubordination or willful disobedience by an employee of a
lawful work-related order of the employer or its representative
is reasonably penalized with dismissal. There must be
reasonable proportionality between, on the one hand, the willful
disobedience by the employee and, on the other hand, the
penalty imposed therefor.15

21. Taking into consideration the circumstances of this

case, De Lara’s acts cannot be said to amount to serious
misconduct or willful disobedience.

Meted penalty was not

commensurate with the
acts committed

22. Infractions committed by an employee should merit

only the corresponding penalty demanded by the circumstance,
and the penalty must be commensurate with the act, conduct or
omission imputed to the employee.16

23. Assuming that the violations of the Company policy

were true, the penalty of dismissal is too harsh.

Company Policy on
Prohibition,
unreasonable

24. It is the employer's prerogative to prescribe

reasonable rules and regulations necessary or proper for the

15
Gold City Integrated Port Services, Inc. (INPORT) v. National Labor Relations Commission , 267 Phil
863, 873 (1990).
16
Coca-cola Femsa Philippines, Inc. v. Alpuerto, G.R. No. 226089, March 04, 2020

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conduct of its business or concern, to provide certain
disciplinary measures to implement said rules and to assure
that the same be complied with. At the same time, it is one of
the fundamental duties of the employee to yield obedience to
all reasonable rules, orders, and instructions of the employer,
and willful or intentional disobedience thereof, as a general rule,
justifies recission of the contract of service and the peremptory
dismissal of the employee.17

25. In order that the willful disobedience by the

employee may constitute a just cause for terminating his
employment, the orders, regulations, or instructions of the
employer must be: (a) reasonable and lawful; (b) sufficiently
known to the employee; and (c) in connection with the duties
which the employee has been engaged to discharge.18

26. As to what is a reasonable rule or order will depend

on the circumstances of each case.

27. Where an order or rule is not reasonable, in view of

the terms and conditions of employment and the general rights
of the parties, a refusal to obey does not constitute a just cause
for the employee’s discharge.19

28. The company policy prohibiting the receipt of or the

acceptance of food and other items of similar import does not
constitute as reasonable under the circumstances. Taking into
account the nature of the business of the Respondent Company,
the practice does not appear to be detrimental to the business
interests of the corporation to warrant a dismissal.
Nevertheless, the burden of proving reasonableness rests with
Evergreen.

There was deprivation of

due process due to the
non-observance of the
twin-notice rule

29. Granting, but without admitting, that there was

indeed a just ground to terminate the employment of the
complainant, it is still a basic requirement that before

17
Family Planning vs NLRC, G.R. No. 75907 (1992).
18
Gold City Integrated Ports Services, Inc., v. NLRC, G.R. No. 86000 (1990).
19
Pharmacia and Upjohn, Inc. vs. Albayda, G.R. No. 172724 (2010).

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employment could be terminated by employer, the employee
should be accorded due process.

30. The twin requirements of notice and hearing

constitute the essential elements of the procedural due process
and neither of these elements can be eliminated without
running afoul of the procedural mandate.

31. The Supreme Court, reiterating its earlier holding in King of

Kings Transport, Inc. vs. Mamac, explained the due process
requirement in Unilever Philippines, Inc v. Rivera20, thus:

(a) First written notice. - The first written notice to be

served on the employees should contain the specific
causes or grounds for termination against them, and
a directive that the employees are given the
opportunity to submit their written explanation
within a reasonable period. “Reasonable
opportunity” under the Omnibus Rules means every
kind of assistance that management must accord to
the employees to enable them to prepare adequately
for their defense. This should be construed as a
period of at least five (5) calendar days from receipt
of the notice to give the employees an opportunity to
study the accusation against them, consult a union
official or lawyer, gather data and evidence, and
decide on the defenses they will raise against the
complaint. Moreover, in order to enable the
employees to intelligently prepare their explanation
and defenses, the notice should contain a detailed
narration of the facts and circumstances that will
serve as basis for the charge against the employees.
A general description of the charge will not suffice.
Lastly, the notice should specifically mention which
company rules, if any, are violated and/or which
among the grounds under Article 282 is being
charged against the employees.

(b) Hearing required - After serving the first notice, the

employers should schedule and conduct a hearing or
conference wherein the employees will be given the
opportunity to: (1) explain and clarify their defenses
to the charge against them; (2) present evidence in
support of their defenses; and (3) rebut the evidence
presented against them by the management. During

20
697 SCRA 136 (2013)

9
 the hearing or conference, the employees are given
the chance to defend themselves personally, with the
assistance of a representative or counsel of their
choice. Moreover, this conference or hearing could be
used by the parties as an opportunity to come to an
amicable settlement.

(c) Second written notice. - After determining that

termination of employment is justified, the
employers shall serve the employees a written notice
of termination indicating that: (1) all circumstances
involving the charge against the employees have been
considered; and (2) grounds have been established to
justify the severance of their employment.” (See also
PNB vs. Cabansag, G. R. No. 157010, June 21, 2005;
Millares vs. PLDT, G. R. No. 154078, May 6, 2005).

32. The proper procedure for termination of

employment, as discussed above, was not observed by
Evergreen. The Complainant did not receive sufficient notice as
to the specific causes and grounds for his dismissal when he
was served the Termination Letter. Moreover, prior Notices to
Explain issued to Complainant and his Responses thereto, were
not the notice and hearing contemplated by law and
jurisprudence. Complainant was not given reasonable
opportunity to prepare his defenses and intelligently respond
to the charges against him.

Complainant is entitled to
Service Incentive Leave
Pay, 13th Month Pay and
Separation Pay

33. Article 95 of the Labor Code provides that every

employee who has rendered at least one (1) year of service shall
be entitled to a yearly service incentive leave of 5 days with pay.
Evergreen is liable for the payment of Service Incentive Leave
because Complainant had been its employee since May 2015 or
for three (3) years before his termination.

Complainant is entitled to
13th month pay

34. Under the 13th Month Pay Law (Presidential Decree

no. 851) and its IRR, employers are required to pay their rank
10
and file employees such sum, provided, that they have worked
for at least one (1) month during the calendar year. Complainant
has rendered more than a month of service, which should entitle
him to 13th month pay, despite his subsequent dismissal.

Complainant is entitled to
separation pay

35. Under Article 294 of the Labor Code, 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 up to the time of
his actual reinstatement. However, when the employment
relationship has become so strained to preclude a harmonious
working relationship, and that all hopes at reconciliation are nil
after reinstatement, it would be beneficial to pay the employee
his separation pay.21 Since Complainant was illegally dismissed
and reconciliation between the parties is no longer a possibility,
separation pay must be given in lieu of reinstatement.

Complainant is entitled to
moral and exemplary
damages, as well as
attorney’s fees

36. Moral damages are recoverable only where the

dismissal or suspension of the employee was attended by bad
faith or fraud, or constituted an act oppressive to labor, or was
done in a manner contrary to morals, good customs or public
policy. Bad faith does not simply mean negligence or bad
judgment. It involves a state of mind dominated by ill will or
motive. It implies a conscious and intentional design to do a
wrongful act for a dishonest purpose or some moral obliquity.
Complainant is entitled to moral damages because his dismissal
was attended by bad faith. The same had been effected without
sufficiently informing the Complainant of the grounds and
wtithout giving him reasonable opportunity to counter the
claims against him.

37. Under Article 2229 of the Civil Code, “Exemplary or

corrective damages are imposed, by way of example or

21
Hilario vs. NLRC, G.R. No. 119583 (1996).

11
correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages.” If the case
involves a contract, Article 2332 of the Civil Code provides that
“the court may award exemplary damages if the defendant acted
in a wanton, fraudulent, reckless, oppressive or malevolent
manner.” In labor cases, the court may award exemplary
damages “if the dismissal was effected in a wanton, oppressive
or malevolent manner.”22 It is socially deleterious for
Respondent Company to terminate Complainant’s employment
without just ground and due process. Therefore, exemplary
damages are necessary to deter future employers from
committing the same acts.

38. In actions for recovery of wages, or where an

employee was forced to litigate and, thus incur expenses to
protect his rights and interests, a monetary award by way of
attorney’s fees is justified under Article 11 of the Labor Code
and Article 2208 (7) of the Civil Code. The award of attorney’s
fees is proper and there need not be any showing that the
employer acted maliciously or in bad faith in withholding the
wages.23

PRAYER

WHEREFORE, in view of all the foregoing, it is most

respectfully prayed for that after due consideration, a decision
be rendered in favor of the Complainant as follows:

a. DECLARING Complainant to have been ILLEGALLY

DISMISSED AND DENIED DUE PROCESS;

b. DIRECTING Respondents to PAY Compliant his due

SERVICE INCENTIVE LEAVE PAY, 13TH MONTH PAY and
SEPARATION;

c. HOLDING Respondents LIABLE for MORAL DAMAGEsS

in the amount of P70,000.00, EXEMPLARY DAMAGES in
the amount of P50,000.00 and attorney’s fees equivalent
to 10% of the monetary award.

22
Montinola vs. PAL, G.R. No. 198656 (2014).
23
Kaisahan at Kapatiran ng mga Manggagawa at Kawani sa MWC-East Zone Union vs. Manila Water
Company, Inc., G.R. No. 174179 (2011).

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 Complainant likewise prays for similar just and equitable
relief.

Mandaluyong City, March 21, 2019.

EVA, SEGUIRAN & ASSOCIATES

ATTORNEYS-AT-LAW
Counsel for the Complainant
5th Floor Greenfield Tower,
Mayflower Street, Mandaluyong City,
Metro Manila, Philippines
Tel. No. (632) 870 5438
Telefax No. (632) 888 4535 loc.103
Email: attys@esalaw.com

By:

JENICA B. EVA
PTR No. 5913409; 07/03/19; Makati City
IBP No. 088237; 05/03/19; Makati City
Roll of Attorneys No. 23748
MCLE Compliance – Admitted to the Bar 2016

GABRIELLE ANN F. SEGUIRAN

PTR No. 5478395; 11/26/19; Manila
IBP No. 054829; 03/23/19; Manila
Roll of Attorneys No. 22639
MCLE Compliance – Admitted to the Bar 2016

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