Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
REGIONAL ARBITRATION BRANCH NO. III
City of San Fernando, Pampanga

COMPLAINANT,
Complainant,

-versus- NLRC CASE NO.

RAB-III-10-XXXXX-20

RESPONDENT,
Respondents.
x-------------------------------x

POSITION PAPER
(For the Respondents)
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Respondents, by and through the undersigned counsel,

unto this Honorable Office, most respectfully submit this
Position Paper. In support thereof, respondents respectfully
state that:

NATURE OF THE CASE

1. This is a case for illegal dismissal, underpayment of

salaries/wages, non-payment of 13th month pay, Separation
pay, and Sick Leave with prayer for payment of backwages and
other monetary claims, filed by the complainant against the
respondents.

THE PARTIES

2. Complainant COMPLAINANT is of legal age,

Filipino, and with residence at Cavite/Las Piñas, where he
may be served with summons, notices, orders and other legal
processes from this Honorable Office.

3. Respondent XYZ Agency is owned and operated by

XYZ CORP, INC., a company duly registered under the laws of
the Republic of the Philippines with office address at Makati.

4. Respondent REX is of legal age, widowed, Filipino,

and a resident of #armorsolo st. makati. She is the Corporate
Secretary of XYZ Corp. and the General Manager of XYZ
Agency.

5. For purposes of the proceedings before this

Honorable Office, respondents may be served with pleadings,
resolutions, orders, notices and other papers emanating from
this Honorable Office through the address of the undersigned
counsel.

STATEMENT OF FACTS AND OF THE CASE

6. Complainant was hired by the respondent

establishment in September 2006 as a Desk Clerk/Cashier. As
such, his duties include transacting with the clients of the
hotel and receiving payments. Further, he has access to the
cash register, where the income of the hotel is temporarily
stored or deposited, and he has access to and control of the
revolving fund or petty cash fund that is used for
unprogrammed expenses;

7. Sometime in 2009, the management of the

respondent establishment and the other desk clerks thereat
noticed that complainant always had unexplained shortages
from the revolving fund or petty cash fund. These unexplained
shortages were made more apparent by petty cash vouchers
made and signed by the respondent from time to time. Copies
of some of the petty cash vouchers made by the respondent
are attached hereto as Annex “A” to “A-4”;

8. Around 2016, the management of the respondent

establishment and the other desk clerks noticed that
complainant took bigger amounts from the revolving fund or
petty cash fund for no legitimate reason;

9. Further, the complainant also made numerous

unauthorized cash advances (“Vale”). Complainant even made
falsified cash vouchers to make it appear to the other desk
clerks and/or the person who would conduct the audit that he
was authorized by the general manager or one of the owners of
the hotel to take out a cash advance. Copies of falsified cash
vouchers are attached hereto as Annex “B” to “B-4”;

11. The complainant would sometimes pay or promise

to pay when he is confronted with said shortages and
unauthorized advances by the management;
 10. As a result of the frequent misappropriation of the
revolving fund and the unauthorized cash advances committed
by the herein complainant, the respondent establishment
through respondent REX sent a Notice to Explain to the
complainant, specifying the grounds for termination or the
offenses committed and requiring him to submit a written
explanation. A copy of the Notice to Explain is attached hereto
as Annex “C”. Furthermore, a copy of the undertaking in
response to the notice to explain to attached is hereto as
Annex “D”;

12. Despite the oral and written undertaking made by

the complainant in relation to his offenses, complainant did
not cease to misappropriate amounts from revolving fund and
making unauthorized cash advances;

13. In April 2019, complainant stole the TWENTY

THOUSAND PESOS (Php20,000.00) deposit made by the Land
Transportation Office (LTO) to the respondent establishment
for the use of the latter’s facilities;

14. As a consequence of the continuous

misappropriation of funds, unauthorized cash advances, and
the theft of the deposit by the LTO, the respondent
establishment through respondent REX was constrained to
issue a Notice of Termination to the complainant. A copy of the
Notice of Termination is attached hereto as Annex “E”;

15. Furthermore, XYZ Corp, Inc., the operator of the

respondent establishment, through respondent REX filed
criminal charges against the herein complainant in relation to
the offenses he committed before the Office of the City
Prosecutor of the City of San Fernando, Pampanga. A copy of
the Investigation Data Form, the complaint and all its
attachments are attached hereto as Annex “F”;

16. On 3 October 2019, complainant filed this instant

complaint before the DOLE against herein respondents for the
alleged illegal dismissal, underpayment of salaries/wages,
non-payment of 13th month pay, Separation pay, and Sick
Leave with prayer for payment of backwages and other
monetary claims;

17. Prior to the filing of the complaint, a Notice of

Conference was received by the respondents inviting them to
appear on the 3rd of October, 2019 at 10:00 in the morning to
attend the mandatory conference in compliance to the DOLE-
Single Entry Approach (SENA) per Department Order No. 107,
Series of 2010. Both parties appeared but failed to reach a
settlement, hence, the SENA was terminated;

18. Thereafter, Summons, together with a copy of the

Complaint dated 8 October 2019 was received by the
respondents ordering them to appear before this Honorable
Office for the conduct of mandatory conference.

19. No settlement was reached between the parties

during the dates set for mandatory conference, hence, the
mandatory conference was terminated and the parties were
directed to file a Position Paper;

20. Hence, this Position Paper.

ISSUES

WHETHER OR NOT THE RESPONDENTS

SHOULD BE HELD LIABLE FOR ILLEGAL
DISMISSAL AND THE MONEY CLAIMS SET
FORTH IN THE COMPLAINT.

ARGUMENTS AND DISCUSSION

THE COMPLAINANT HAS NO

GROUNDS, BOTH FACTUAL AND
LEGAL, TO HOLD THE
RESPONDENTS LIABLE FOR
ILLEGAL DISMISSAL WITHIN THE
CONTEXT OF EXISTING LABOR
LAWS, RULES AND
REGULATIONS.

21. In the light of the antecedent facts and

circumstances of the case, it could be safely argued that the
allegation of the complainant that he was illegally dismissed
from employment has no legal and factual basis;

22. Article 279 of the Labor Code, as amended provides

that:

“ART. 279. SECURITY OF TENURE

 In cases of regular employment, the employer
shall not terminate the services of an employee except
for 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 form
the time his compensation was withheld from him up
to the time of his actual reinstatement.” (Emphasis
supplied)

23. In relation to such, the Supreme Court in Imasen

Philippine Manufacturing Corp. vs. Ramonchito T. Alcon and
Joann S. Papa, G.R. No. 194884, October 22, 2014, ruled
that:

“The law and jurisprudence guarantee to every

employee security of tenure. This textual and the
ensuing jurisprudential commitment to the cause and
welfare of the working class proceed from the social
justice principles of the Constitution that the Court
zealously implements out of its concern for those with
less in life. Thus, the Court will not hesitate to strike
down as invalid any employer act that attempts to
undermine workers’ tenurial security. All these the
State undertakes under Article 279 (now Article
293) of the Labor Code which bar an employer from
terminating the services of an employee, except for
just or authorized cause and upon observance of
due process.

In protecting the rights of the workers, the law,

however, does not authorize the oppression or
self-destruction of the employer. 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.  The constitutional and legal protection equally
recognize the employer’s right and prerogative to
manage its operation according to reasonable
standards and norms of fair play.” (Emphasis
supplied)

24. As it can be gleaned above, while it is true that a

regular employee such as the complainant enjoys security of
tenure, a right guaranteed by the fundamental law of the land,
statutes, and jurisprudence, it however does not guarantee
perpetual employment as an employer may still terminate the
services of an employee if there exists a just or authorized
cause.

25. Article 282 (now Art. 297) of the Labor Code

authorizes an employer to dismiss an employee for any of the
following causes, to wit:

(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. (Emphasis supplied)

26. However, the existence of a just or authorized cause

alone is not enough for there to be a valid termination of
employment as the requirements of procedural due process
must still be observed;

27. In this regard, the Supreme Court in the case of

Solid Development Corp. Workers Association vs. Solid
Development Corporation, G.R. No. 165995, August 14, 2007,
held that:

“It is settled that to constitute a valid dismissal

from employment, two requisites must concur: (1) the
dismissal must be for any of the causes provided for
in Article 282 of the Labor Code; and (2) the employee
must be afforded an opportunity to be heard and to
defend himself. This means that an employer can
 terminate the services of an employee for just and
valid causes, which must be supported by clear and
convincing evidence. It also means that, procedurally,
the employee must be given notice, with adequate
opportunity to be heard, before he is notified of his
actual dismissal for cause.”

28. Further, in the case of Noblado et al. vs. Alfonso,

G.R. No. 189229, November 23, 2015, the Supreme Court
emphasized that:

“For a dismissal to be valid, the rule is that the

employer must comply with both the substantive and
the procedural due process requirements. Substantive
due process requires that the dismissal must be
pursuant to either a just or an authorized cause
under Articles 282, 283 or 284 of the Labor Code.

On the other hand, procedural due process in

dismissal cases consists of the twin requirements of
notice and hearing. The employer must furnish the
employee with two written notices before the
termination of employment can be effected: (1) the
first notice apprises the employee of the particular
acts or omissions for which his dismissal is sought;
and (2) the second notice informs the employee of the
employer's decision to dismiss him. Before the
issuance of the second notice, the requirement of a
hearing must be complied with by giving the worker
an opportunity to be heard. It is not necessary that
an actual hearing be conducted.”

29. In the instant case, respondents complied with both

the substantive and procedural due process requirements. The
complainant committed acts which are criminal in nature and
which constitute Serious Misconduct and Fraud or willful
breach by the employee of the trust reposed in him by his
employer. Moreover, the respondents complied with the
requirements of procedural due process by serving said
complainant with a notice to explain and giving him an
opportunity to be heard. A notice of termination was likewise
served upon the complainant. Clearly, the respondents spared
no effort to comply with the requirements of due process,
considering the gravity of the offenses committed by the
complainant;

30. The Supreme Court had the occasion to discuss

Serious Misconduct as a just cause for termination in Sterling
Paper Products Enterprises, Inc. vs. KMM-Katipunan, G.R. No.
221493, August 2, 2017, it held that:

“Dismissal from employment on

the ground of serious misconduct

Under Article 282 (a) of the Labor Code, serious

misconduct by the employee justifies the employer in
terminating his or her employment.
Misconduct is defined as an improper or wrong
conduct. It is a 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. To
constitute a valid cause for the dismissal within the
text and meaning of Article 282 of the Labor Code,
the employee's misconduct must be
serious, i.e., of such grave and aggravated character
and not merely trivial or unimportant.
Additionally, the misconduct must be related to
the performance of the employee's duties showing
him to be unfit to continue working for the
employer. Further, and equally important and
required, the act or conduct must have been
performed with wrongful intent.” (Emphasis supplied)

31. Jurisprudence has classified theft of company

property as a serious misconduct and denied the award of
separation pay to the erring employee (Reno Foods, Inc. vs.
NLM-Katipunan, G.R. No. 164016, March 15, 2010);

32. In the case at bar, the complainant committed theft

against the respondent establishment as he took the deposit
paid by the LTO amounting to Twenty Thousand Pesos
(Php20,000.00) without the latter’s consent. Complainant also
took cash advances without the knowledge and consent of the
respondents, in addition, complainant even falsified cash
vouchers to make the other desk clerks believe that his cash
advances are authorized. Such misconduct are grave and are
directly related to the performance of the complainant’s duty
as a desk clerk/cashier;

33. Anent the ground of Fraud or willful breach by the

employee of the trust reposed in him by his employer or duly
authorized representative as a just cause for dismissal, the
Supreme Court in the case of Lopez vs. Alturas Group of
Companies, G.R. No. 191008, April 11, 2011, held that:
 “x x x. And, in order to constitute a just cause for
dismissal, the act complained of must be  work-
related and shows that the employee concerned is
unfit to continue working for the employer. In addition,
loss of confidence as a just cause for termination of
employment is premised on the fact that the employee
concerned holds a position of responsibility, trust and
confidence or that the employee concerned is
entrusted with confidence with respect to delicate
matters, such as the  handling or care and protection
of the property and assets of the employer. The
betrayal of this trust is the essence of the offense for
which an employee is penalized. (emphasis and
underscoring supplied)”

34. In the instant case, complainant holds a position of

trust and confidence as he is a desk clerk/cashier of the
respondent establishment, as such he has access to and
control of the petty cash fund or revolving fund, which he
misappropriated, and access to the cash register and the
income of the respondent establishment;

35. As to the claim of the complainant regarding

separation pay, considering the fact that the latter has been
validly dismissed, she is not entitled to a separation pay. As
held by the Supreme Court in the case of Armando Aliling v.
Jose B. Feliciano et al., G.R. No. 185828, April 25, 2012, “The
award of separation pay is inconsistent with a finding that
there was no illegal dismissal, for under Article 279 of the
Labor Code and as held in a catena of cases, an employee who
is dismissed without just cause and without due process is
entitled to backwages and reinstatement or payment of
separation pay in lieu thereof.”;

*36. Contrary to the fallacious claims of the herein

complainant as regards the non-payment of 13 th month pay,
the respondent establishment never failed to give its
employees what is due to them. The 13th month pay of the
respondent establishment’s employees has been paid to them
consistently every year;

37. Contrary also to the claims of the complainant that

he was deprived of Sick Leave, the truth of the matter is that
he even exceeded the five (5) days of paid service incentive
leave given by law, which can be used as sick leave, as he has
already incurred more than five (5) unexplained absences;
 37. Anent the claim for backwages, Backwages are
granted for earnings a worker has lost because of his illegal
dismissal. Considering this case patently involves no illegal
dismissal, respondents are not obliged to pay complainant the
whole amount of salaries plus all other benefits which the
latter mistakenly claims;

38. Moral damages are recoverable in dismissal cases

only where the dismissal 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. In
this case, the dismissal was valid, was done in good faith and
in accordance with law.

39. Likewise, complainant is not entitled to be awarded

exemplary damages since no dismissal was effected in a
wanton, fraudulent, oppressive or malevolent manner.

40. In the case of Del Rosario vs. Court of Appeals,

267 SCRA 158, it has been aptly held by the Supreme Court
that:

“Exemplary damages are imposed not to enrich one

party or impoverish another but to secure as deterrent
or as a negative incentive to curb socially deleterious
actions.”

41. Viewed in the light of the foregoing recitals, it

becomes clear as daylight that the severance of the herein
complainant from his services with the Lewana Lodge and
Hotel is valid on all fours. Also, the claim of separation pay is
misplaced since there is no illegal dismissal and the fact that
the complainant voluntarily resigned negates the claim for
separation pay.

PRAYER

WHEREFORE, premises considered, it is most

respectfully prayed unto this Honorable Office after due notice
and hearing that judgment be rendered DISMISSING the
instant complaint for UTTER LACK OF MERIT.

Other relief just and equitable under the circumstance is

likewise prayed for.

City of San Fernando, Pampanga. November 25, 2019.

 AB LAW
Counsel for the Respondent
Makati

By:

ATTY. PAOLO RIGUERRA

Roll No. xxxxx
IBP No. /05-09-19
PTR No. /06-28-19/City of San Fernando, Pampanga
MCLE

Copy Furnished:

COMPLAINANT
Complainant
Address

NOTICE

TO THE CLERK OF OFFICE

NATIONAL LABOR RELATIONS COMMISSION
City of San Fernando, Pampanga

Greetings! Kindly submit the foregoing Position Paper

immediately upon receipt hereof for the consideration and
resolution of the Honorable Office.

ATTY. PAOLO RIGUERRA