Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

JUAN MIGUEL M. SANTILLAN, ET AL,

Complainant,

-versus- NLRC-NCR Case No. 01-00751-21

EVEB CORPORATION, ET AL,

Respondents,

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

RESPONSE
(To Respondent’s Position Paper)

COMES NOW, Complainants, the undersigned, by themselves and

unto this Honorable Office, most respectfully submit this Response Paper
and aver the following, to wit:

PREFATORY STATEMENT

With regard to the Respondent's claim of no illegal dismissal on the

grounds of the instant complaint having no merit, it is a well-settled
principal in law that any dismissal of an employee must be in line with the
rules laid out in the Labor Code of the Philippines.

Insofar as the Respondent’s claims of “no illegal dismissal” are

without grounds, the onus of proof of said claim is inherently that of the

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Respondent, which claim has not been proven in the aforementioned
Position Paper, as supplied to this Honorable Office.

PARTIES

The Complainants in this case are JUAN MIGUEL M. SANTILLAN

and GRETCHEN C. TUBON (hereinafter referred to as the
“Complainants”), Filipino, of legal age, with post office address at Shore
Residences, Seaside Blvd, MOA Complex, Pasay City, Philippines, where
they could be served with summons and other legal processes of this
Honorable Office.

The Respondent is EVEB CORPORATION (hereinafter referred to as

the “Respondent”), a business organized and existing under the laws of the
Philippines, with business address at Fuwealth Services, Inc 18th Floor,
Techzone Bldg, 213 Sen. Gil Puyat, City of Makati, Metro Manila, where
the said company and representatives could be served with summons and
other legal processes of this Honorable Office.

DISCUSSION

1. “The Complainants were not in any manner illegally dismissed from

the service.”

In its baseless and self-serving Position Paper, the Respondent

claims that there is no merit for the complaint of Illegal Dismissal, claiming
rather that there was no actual dismissal at all.

Moreover, the Respondent claims that the claim of dismissal of the

Complainants were merely “bare allegations of the complainant that he was

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dismissed” and that “the same must likewise be supported by substantial
evidence.” 1

The Respondent then goes on to state that “the complainant simply

states that he was dismissed without presenting any evidence to prove the
same.”

The Complainants are well aware of the requirement of “onus

probandi actori incumbit” (he who alleges must prove), and have done just
that in their original Position Paper. As can be clearly seen in the
Complainants’ Position Paper’s Annexes, a veritable plethora of evidence
was provided to support the claim of dismissal, even including the Notices
of Termination of Employment sent to the Complainants by the
Respondent2 and the offers of Separation Pay.3

Insofar as the Respondent’s claim of the burden of proof of the

dismissal, legal or illegal, lies with the Complainants, such proof has been
adequately provided despite the Respondent’s spurious claims to the
contrary.

In its baseless allegation wherein the Respondent claims that the

onus of proof is on the Complainants, it has the temerity to cite Supreme
Court jurisprudence incorrectly in order to further its lies and deceits. Citing
such cases as Machia v. Roosevelt4 and Leopold v. Macalinao,5 the
Respondent attempts, badly, to throw the burden of proof onto the
Complainants.

1
See Page 5 of Respondent’s Position Paper
2
See Annex B of the Complainants’ Position Paper
3
See Annex C of the Complainants’ Position Paper
4
Machia v. Roosevelt, G.R. No. 168664, 4 May 2006, 489 SCRA 534, 544
5
Leopold integrated Services, Inc. v. Macalinao, G.R. No. 159808, September 30 2008

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 Contrary to the misplaced and misguided beliefs of the Respondent,
the burden of proof in cases of Illegal Dismissal is outside the Supreme
Court jurisprudence of ‘he who alleges must prove”.

As has been given in settled jurisprudence innumerable times by the

Supreme Court, the burden of proof is with the EMPLOYER, in this case
the Respondent, to prove that the dismissal was legal, not for the
Complainants to prove it was illegal.

It was recently reiterated in the Supreme Court decision in the case of

Dee Jay’s Inn v. Melinda Raneses,6 wherein the Honorable Justice
Leonardo De Castro quoted from Cañedo v. Kampilan Security and
Detective Agency, Inc.7, to wit:

“In illegal dismissal cases, "[w]hile the employer

bears the burden x x x to prove that the termination
was for a valid or authorized cause, the employee
must first establish by substantial evidence the fact
of dismissal from service." The burden of proving
the allegations rests upon the party alleging and the
proof must be clear, positive and convincing. Thus,
in this case, it is incumbent upon petitioner to prove
his claim of dismissal.”

Suffice to say, the previously provided evidences of the termination of

the Complainants has provided proof that there were in fact dismissals, and
that they were “clear, positive, and convincing” 8. Therefore, the Respondent
now bears the burden of proving that the terminations were for a valid or
authorized cause.

6
Dee Jay's Inn and Cafe and/or Melinda Ferraris v. Ma. Lorina Rañeses, G.R. No. 191825, October 05, 2016
7
Cañedo v. Kampilan Security and Detective Agency, Inc., G.R. No. 200898, June 15, 2015
8
See Page 7 of Respondent’s Position Paper

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 As can be seen from the Notices of Termination of the Complainants,
the requirement of 30 days notice in cases of terminations for the
Authorized Cause of Redundancy, as per Article 298 [283] of the Labor
Code, is not present, the notice only being given three days before the date
of dismissals.

2. “The Complainants were offered Separation Pay in accordance with

existing law but complainants are demanding unreasonable and
unconscionable amount of money.”

In its deftly-constructed web of les, the Respondent then goes on to

state that the Complainants were alleging that they were not able to receive
Separation Pay from the Respondent.

Amazingly, the Respondent has stated that the Complainants were

“offered separation pay”, despite the Respondent’s claims that the
Complainants were not even dismissed, let alone dismissed illegally.

And while the Respondent also baselessly claims that the

Complainants were “demanding unreasonable and unconscionable amount
of money”, it has already been shown with evidence that the Complainants
were merely asserting their legal rights and asking for the CORRECT
amounts of Separation Pay.

In its deceptive Position Paper, the Respondent states that the

Complainants were offered Separation Pay at the rate of one half month of
salary per year of service. Yet its own Notice of Termination, previously
cited both here and in the Complainants’ Position paper, clearly states:

“It is with sincere regret to inform you that your

employment at EVEB CORPORATION., will be
terminated and will take effect on 31 AUGUST 2020
due to REDUNDANCY.”

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 If the termination were due to redundancy, then the amount should be
ONE MONTH per year of service, NOT one half month. As per Article 298
[283] of the Labor Code,

“In case of termination due to the installation of

labor-saving devices or redundancy, the worker
affected thereby shall be entitled to a separation
pay equivalent to at least his one (1) month pay or
to at least one (1) month pay for every year of
service, whichever is higher.”9

In its initial offer of Separation Pay to the Complainants, the

Respondent gave exact figures to the amount of EIGHT HUNDRED AND
SEVENTY-NINE THOUSAND TWO HUNDRED AND TWENTY-SEVEN
PESOS AND EIGHTY-NINE CENTAVOS (Php 879,227.89) to Complainant
Santillan and THREE HUNDRED AND FORTY-TWO THOUSAND AND
THIRTY-SEVEN PESOS AND TWENTY-EIGHT CENTAVOS (Php
342,037.28) to Complainant Tubon.

These amounts, contrary to the lies and deceitful statements of the

Respondent in its Position Paper, were OFFERED by the Respondent on
the termination of the Complainants, not DEMANDED by the Complainants
as “unreasonable and illogical” amounts.10

The amounts requested by the Complainants were higher than those

offered by the Respondents due to incorrect computations on the part of
the Respondents in their original offers, wherein half a month’s pay that
was unpaid from August 2020 was still unpaid, and the calculations for the
amounts for unused Service Incentive Leave were incorrect, not to mention

9
See Article 298 of Presidential Decree No. 442 Of 1974, As Amended And Renumbered
10
See Pages 7/8 of Respondent’s Position Paper

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that the amount of Separation Pay for Complainant Tubon was based on
an incorrect tenure calculation.

For both Complainants, the salary for August 16-30 was not paid, as
can be evidenced by the SSS Contribution tables for the Complainants,
which shows NO CONTRIBUTIONS for August 2020, as marked. 11

This allegedly legal “salary adjustment” was not done in accordance

with the law and without the consent of the employees, and can be
evidenced by the “Announcement of Salary Adjustment Arrangement” as
was sent to all employees of the Respondent Company by Email on August
17, 2020.12

As per Labor Advisory No 17, Series of 2020, the GUIDELINES ON

EMPLOYMENT PRESERVATION UPON THE RESUMPTION OF
BUSINESS OPERATION, it clearly gives the grounds and requirements for
a reduction of wages for employees during the pandemic. Section 5 of the
aforementioned Labor Advisory states, to wit:

”Section 5. Wages and Wage-Related Benefits.

Employers and employees may agree voluntarily
and in writing to temporarily adjust employees' wage
and wage related benefits as provided for in existing
employment contract, company policy or collective
bargaining agreement (CBA).
The adjustments in wage and/or wage-related
benefits shall not exceed six (6) months or the
period agreed upon in the collective bargaining
agreement (CBA), if any. After such period,

11
A copy of the SSS Statements of the Complainants are attached herein as Annex “A” and are made an integral part
hereof.
12
A copy of the Announcement of Salary Adjustment Arrangement is attached herein as Annex “B” and is made an
integral part hereof.

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 employers and employees shall review their
agreement and may renew the same.”13

As can be clearly seen from the above, it is a requirement that BOTH

PARTIES agree to the reduction of wages, voluntarily and in writing. Not
only were the Complainants forced to accept the reduction of their salaried
by 50%, but they were never reimbursed for that amount.

Not only is this a violation of the aforementioned Labor Advisory, but

it also violates the Labor Code, under Article 116, which does not permit
the employer to make any deductions from wages without provision in law
or permission from the employee.14

Moreover, when the Complainants requested nicely to the respondent

to correct the errors in their calculations, the Respondent reduced the offer
of separation pay to a mere three month’s salary each, an offer that was
refused in front of the SEADO during mediation.

3. “The monetary claims of the complainants are without merit.”

It has already been proven that the Respondent is liable for the
amounts requested in the Complainants’ Position Paper, and that this
Honorable Office should award that which is legally due.

Separation pay is a requirement when an employee is made

redundant, no matter the status of the company involved or the reasons for
redundancy. As such, the Complainants are entitled to their monetary
claims of Separation Pay, as well as their unpaid salaries.

13
See Labor Advisory No. 17, Series of 2020, dated May 18, 2020
14
See Article 116 of Presidential Decree No. 442 Of 1974, As Amended And Renumbered

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4. “Alleged Non-payment of Salary/wages, Overtime Pay, Service
incentive Leave (SIL) Night Shift Differential, Damages, and Attorney’s
fees.”

The claims of the Complainants as laid out in their Position Paper are
accurate and correct, and nothing was claimed that was not due and legally
required by the Respondent to pay.

The claim of unpaid salary has already been shown, and that
includes any overtime incurred during the period from August 16 to 30,
which the Respondent has refused to pay to both Complainants in direct
violation of the law. That would also include any Night Shift Differential that
should have been paid to the Complainants along with their normal Salary.

The Service Incentive Leave of the Complainants as offered in the

Respondent’s initial offer was incorrect, as has been previously explained.
Based on the monthly salary of the Complainants, the amounts originally
offered were incorrect below that which should have been paid as unused
leave conversions.15

In its baseless and morally bereft Position Paper, the Respondent

has left out the claim of the Complainants for their 13 th month pay, which
was originally a part of the initial offer of the Respondents on receipt of their
Notice of Termination.

The burden of proof of the payment of monetary claims is actually on

the part of the employer, not the employee, in most cases. Such monetary
claims include those incurred in the “normal course of business”, such as
salary, holiday pay, 13th month pay, etc. As was given in the case of
Minsola v. New City Builders, Inc.:

15
See Pages 12 to 16 of the Complainants’ Position Paper

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 “In claims for payment of salary differential, service
incentive leave, holiday pay, and 13 th month pay,
the burden rests on the employer to prove
payment… This likewise stems from the fact that all
personnel files, payrolls, records, remittances and
other similar documents – which show that the
differentials, service incentive leave and other
claims of workers have been paid – are not in the
possession of the worker but are in the custody and
control of the employer.”16

As such, the Respondent is hereby required to prove that the

monetary claims of the Complainants have been paid, something that it has
not done, and is unable to do as no monetary claims have yet been paid by
the Respondent in full, as per the original computations and offer issued for
the Complainants by the Respondent on September 1, 2020.

Insofar as damages are concerned, the grounds for this have been
fully and properly shown in the Complainants’ Position Paper, and for which
there can be no argument by the Respondent, who has degraded the
Complainants, treated them with contempt and derision, and lied to and
cheated its employees, both in their work and their terminations, and in its
worthless Position Paper.

And, despite admitting to there being an offer of Separation Pay, and a

plethora of evidence to support the claims of the Complainants in their
complaint of Illegal Dismissal and request for Money Claims, the
Respondent, in its final statements, still clings to its moronic position that
there can be no claim for damages or attorney’s fees as “there was no
dismissal or termination to speak of in the first place.”

16
Minsola v. New City Builders, Inc., G.R. No. 207613, 31 January 2018

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5. “Respondents Yang Liu, Richard De Gizman, Lu Liu, Herminal
Ramilo, and Rhodora Ramilo are not proper parties in interest in the
instant case as such they must be dropped as respondents.”

In its self-serving Position Paper, the Respondent does get one point
correct, though it is applying that point in error and with misconceptions as
to the inclusion of the above-mentioned corporate officers and
shareholders.

The Corporation Code does stipulate the liability of directors,

trustees, or officers under Section 31, which is clear in its meaning. As
quoth by the Respondent, albeit with the wrong intent, it clearly states:

“Sec. 31. Liability of directors, trustees or officers. -

Directors or trustees who willfully and knowingly
vote for or assent to patently unlawful acts of the
corporation or who are guilty of gross negligence or
bad faith in directing the affairs of the corporation or
acquire any personal or pecuniary interest in conflict
with their duty as such directors or trustees shall be
liable jointly and severally for all damages resulting
therefrom suffered by the corporation, its
stockholders or members and other persons.”

While the Respondent claims that the above-mentioned officers

should not be party to this complaint, the Complainant avers the opposite,
and states that, under the same Section of the corporation Code that the
Respondent cites, the officers herein impleaded are guilty of the following:

1. willfully and knowingly vote for or assent to patently unlawful acts of the
corporation; and
2. gross negligence or bad faith in directing the affairs of the corporation.

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 In the first instance, the officers were party to the illegal acts of
violations of Article 116 of the Labor Code and violations of Section 5 of
labor Advisory No 17, Series of 2020.

As has already been shown in Annex D herein, the officers were

party to the illegal deduction of 50% of the salaries of the employees of the
G2 level employees, of which the Complainants are both part. This is a
policy that was disseminated by the officers of the company, and
implemented by the HR department, after it was “discussed with the
company’s management.”

Such a statement of policy is also considered to have been done in

bad faith, to the detriment of the G2 employees of the Respondent
Company, and can be considered to be Gross Negligence in the
performance of their duties, as well as being in direct contravention with the
Constitutional right to fair treatment in employment.

As such, these officers “shall be liable jointly and severally for all
damages resulting therefrom suffered by the corporation, its stockholders
or members and other persons.”

The fact that the policy of deductions was part of the company’s
management decisions, whereby these officers decided to make this policy,
makes these officers jointly and severally liable for impleading in this herein
complaint before this Honorable Office.

RELIEF

WHEREFORE, premises considered, it is hereby respectfully prayed

that the foregoing Response to Respondents’ Position Paper be given due
credence and consideration and the reliefs prayed for in the Complaint and
Complainants’ Position Paper be granted.

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 Finally, Complainant respectfully prays for such and other reliefs as
may be deemed just and equitable under the premises.

RESPECTFULLY SUBMITTED.

Quezon City, Philippines, July ____, 2021.

Juan Miguel M. Santillan Gretchen C. Tubon

Affiant Affiant

Copy furnished: (by Courier/Registered Mail due to Distance and Safety)

EVEB CORPORATION
via
Atty. Ronald B. Bagasbas
Mantaring Bagasbas & Associates
Counsel for Respondent
7th Floor, Unit B, 8 Rockwell Hidalgo Drive
Unit 1505 Chateau De Baie Condominium
149 Roxas Blvd. corner Airport Road
Paranaque City, Philippines

13
 ANNEX A

14
 ANNEX B

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 VERIFICATION

We, JUAN MIGUEL M. SANTILLAN and GRETCHEN C. TUBO, Filipino,

of legal age, and with post office address at Shore Residences, Seaside
Blvd, MOA Complex, Pasay City, Philippines, after having duly sworn to in
accordance with law, do hereby depose and state:

1. That we are the Petitioners in the above-entitled case;

2. That we have caused the preparation and filing of the foregoing

Petition and have read all the allegations therein;

3. The allegations therein are true and correct, based on personal

knowledge or authentic documents;

4. The pleading is not filed to harass, cause unnecessary delay, or

needlessly increase the cost of litigation;

5. The factual allegations therein have evidentiary support or, if

specifically so identified, will likewise have evidentiary support after a
reasonable opportunity for discovery;

IN WITNESS WHEREOF, we have hereunto affixed our signatures this

_____ day of _____________, 2021 in ______________________.

___________ ___________
Affiant Affiant

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BEFORE ME, a Notary Public for and in ________________, personally
appeared the following with their respective competent proof of identity on
this _____ day of _____________, 2021.

NAMES COMPETENT DATE EXPIRY

PROOF OF ISSUED DATE
IDENTITY

     

     

Known to me to be the same persons who executed the foregoing

instrument and they acknowledged to me that the same is their free and
voluntary act and deed.

WITNESS MY HAND AND SEAL at the place and date first written above.

NOTARY PUBLIC

Doc. No. ____

Page No. ____
Book No. ____
Series of 2021.

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