Sample Position Paper in a labor case

This is a sample Position Paper in a labor case prepared by our law office. We are sharing
the same for research purposes of our readers and followers.

REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT
NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
PPSTA BLDG., BANAWE AVE., QUEZON CITY

OFFICE OF LABOR ARBITER x x x

ROOM 311, 3RD FLOOR, PPSTA BLDG.

X x x x,
Complainant,
NLRC RAB NCR

-Versus -                                                 CASE NO. NCR-

X x x.
X x x , INC.
X x x; AND
X x x,
Respondents.
x----------------------------------x

POSITION PAPER
FOR THE COMPLAINANT
WITH
URGENT EX PARTE MOTION
FOR PRODUCTION, INSPECTION AND EXAMINATION OF THE “201
FILE” (PERSONNEL FILE) OF THE COMPLAINANT IN THE
POSSESSION
 OF THE RESPONDENTS

          The COMPLAINANT, pro se, respectfully states:

I.   STATEMENT OF FACTS

1.      The complainant is XXX XXX XXX, 44 years old, Filipino, and residing at x x x.

2.    The three respondents in this case are the following:

(a) XXX XXX AND XXX, INC. (corporate employer);

(b) Ms. “Xxx” Xxx, VP for HR Business Partner –Gaming (now the Vice President –
Human Resource Department); and

(c) Mr. Xxx Xxx, Chairman of XXX. They hold office at the Executive Offices, XXX
XXX, xxx Ave., xxx City, xxx, xxx City.

3.    His position in the company was xxx Supervisor.

4.    He was hired by the company on January 7, 2013.

5.     He started with a Gross Annual Salary of  P937,107.69. He was paid a Gross 13th Month
Pay
of P78,092.31 per annum. His salaries were paid to him every 15th and 3oth day of the
month  (with the “cut off” dates of 5th day and 2oth day of each month). He started with a
monthly P84,600.00.

6.     His latest monthly salary amounted to P85,431.90/month (as of May 8, 2015).

7.     He was provided the following benefits during his tenure:

a.  Rice Subsidy – one sack/month. Its value was converted to cash at P1,000/month.
b.  Service Charge – latest amount thereof as of May 2015  was P2,993.13/month.
c.  Paid leave credits of twenty five (25) days/annum.
d. Free meals (once per duty day).
e.  Health insurance – for himself and one of his children (Bill Cameron E. Xxx, 17 years
old [2015], student of Far Eastern University, BS Psychology).
f.  Life insurance – with a face value of P280,000.00.

8.    See the following documents in support of the foregoing statements:

 · Annex “A” - EMPLOYMENT OFFER, dated November 23, 2012;  

· Annex “B” – COMPUTATION OF ANNUAL INCOME AND WITHHOLDING TAX

AS OF THE YEAR 2015.

9.     In a Letter, dated January 28, 2014, issued by Mr. xxx xxx, Chief Operating Officer and
President, for his “valuable contributions” to the company, he was given a BONUS
based on his base pay as of September 30, 2013. It was released on installment basis. It
was subject to certain conditions stated in the said Letter.

A copy of the said Letter, dated January 28, 2014, is attached as Annex “C” hereof.

10.  The complainant was a regular employee of the respondent company when he

was terminated
on May 8, 2015 having served it for more than one year as of that date.

11.   He was imposed the following penalties for TARDINESS:

(a)  On March 15, 2014, a WARNING was annotated by the Pit Manager in the
complainant’s record in the TEAM TRACK, where the daily monitoring of deviations and
commendations of employees are encoded).

As shown in a Notice to Explain, dated 11 April 2014, issued by the Human Resource
xxx – xxx Department headed by respondent Xxx Xxx, the complainant was penalized
for twelve instances of tardiness, the dates of which were stated in the said Notice
(between the period March 12, 2013 to February 19, 2014).

The Notice cited Sec. VI, Article XX (Punctuality and Attendance 15A) of the TEAM
MEMBER CODE OF GOOD BEHAVIOR (TMCGB).

Pursuant to the said Notice, he submitted to the office of the respondent Xxx Xxx one
original copy of his handwritten EXPLANATION (He did not prepare an extra file copy
for himself).

See Annex “D” – NOTICE TO EXPLAIN, dated 11 April 2014.

(b)  On May 7-9, 2014 he was SUSPENDED FOR THREE DAYS. He had misplaced his
copy now of the suspension order.

(c) On July 13-18, 2014 he was SUSPENDED FOR SIX DAYS. He had misplaced his
copy now of the suspension order.  Some of his tardiness before such suspension were
caused by the street blockage due to the on-going construction and/or improvement of the
road where the Casino was located.

In the early part of 2015, some of his tardiness were caused by the heavy traffic due to the
papal visit of Pope Francis.

After his six-day suspension on July 13-18, 2014, he recalls that he was late only once,
i.e., January 15, 2015.

On May 8, 2015 at about 2:00 PM to 4:00 PM the complainant was ABRUPTLY AND

VERBALLY DISMISSED FROM EMPLOYMENT by the respondent Xxx Xxx in the
presence of his immediate superior xxx xxx (xxx Manager) inside the room of Xxx Xxx.

(He recalls that he had only one or two tardiness before May 8, 2015).

He was then on duty from 7:00 AM to 3:00 PM.

He was sequestered by Xxx Xxx inside her room.

He was threatened and forced by Xxx Xxx to IMMEDIATELY RESIGN. Otherwise,

she would TERMINATE him (that would surely affect his future employments in
other entities, if any).

No prior notice to explain was issued to him.

No formal charge was filed against him.

No administrative hearings (due process and opportunity to be heard) were held to

discuss the problem, resolve it amicably, and hear his side. His constitutional right to
due process of law was violated.

No lawyer for company was present to explain the situation from the point of view of
Labor Law.

He was not given the chance to confer with a lawyer of his choice. His constitutional
right to counsel was violated.

He was not allowed to confer with his wife who was also employed in XXX.

For two hours he was forced to stay inside the room of the respondent Xxx Xxx
and/or within its immediate premises inside the HR area near the room od Xxx Xxx.
He was treated like a prisoner.
 Inside the room of respondent Xxx Xxx he begged her for three days to think about
the former’s order for him to issue immediately on the spot a handwritten resignation
letter.

Xxx Xxx denied the request. She forced him to write on the spot a handwritten
resignation letter. She threatened him with TERMINATION.

He was not allowed to go to his locker to get his mobile phone to call his wife to confer
with her.

He was not allowed to go to the toilet.

He was not allowed to call up a lawyer.

He was not read the charges against him, if any.

Neither was there a notice of decision dismissing him from employment.

Only after two hours of forcible sequestration inside the room of the respondent Xxx
Xxx was he allowed to go home.

12.  As instructed, after three days, he returned to the office of the respondent Xxx Xxx (May
11,
2015 or thereabout) to turn over to her staff over a copy of his TMCGB (employees
manual), xxx xxx MANUAL, and his health insurance card.

(He was unable to turn over to the HR staff the health insurance card for his child xxx Xxx
because the complainant had misplaced it at that time. Hence, we was charged P200.00 for
such loss).

The HR staff gave him the contact numbers of the staff COMPENSATION AND
BENEFITS (COMPENBEN) Office, which was also under the HR Dept., to follow up his
receivable salaries and other employee benefits, namely xxx xxx with Tel. No. xxx. and
xxx with Mobile No. xxx.

He was told by the HR staff to call from the said COMPENBEN staff after three or four
months.

13.  RECEIVABLE SALARIES AND OTHE REMPLOYEE BENEFITS

The receivable salaries and other employee benefits of the complainant as of May 8, 2015
(date of illegal termination) were as follows:
 ·         Salaries for three days  - P9,826.03;
·         Unclaimed leave credits good for 4.5 days - P14,739.05;
·         Service charge - April 2014  - P1,210.32;
·         Service charge - May 2014 - P2,993.13;
·         Refundable income tax - P25,189.07.

The total of the foregoing items was P53,357.60.

Per company policies, the company DEDUCTED the amount of P88,417.11  from the
receivables of the complainant, broken down as follows:

·         Phase 1A bonus - P30,889.11; and

·         Loyalty bonus = P57,528.00.

He was told he still had to pay the company the net amount of P35,059.51.

(Refer to Annex “B”, supra).

When the complainant reviewed the figures, it appears that the respondents overcharged
the complainant by P7,809.39 representing taxes on his 13t month pay for 2014 and the
first five months of 2015. (See Annex “B-1”).

14. Sometime in August 2015, the complainant called up COMPENBEN five times. He was
told
no company action has been done yet.

Sometime September 2015 he called up the said office six times. He was told no company
action has been done yet.

Sometime in October 2015 he called up again the said office. This time, he was told he
was still “NEGATIVE”. 
He was being ordered  to pay the company P35,059.51 before he could be cleared and
his Certificate of Employment released to him.     

15.  As earlier stated, his wife xxx xxx is employed with the corporate respondent Xxx. Her
position is that of a “xxx Manager 2 – xxx”. She started working with the company in
November or December 2012 or thereabout  up to the present time.

16.  The complainant applied with xxx xxx xxx (a new xxx company to be opened in December
2016 or thereabout) for the position of xxxx SUPERVISOR – xxx for a (reduced) salary
P45,000.00/month.

He was supposed to be hired by the said company in Oct 2016 or thereabout. But he
could not get his CERTIFICATE OF EMPLOYMENT (COE) from the respondent
 Xxx unless he would first pay the company the amount of P35,059.51 that it was
demanding.

 On October 5, 2016 the complainant sought the legal assistance of the  Single Entry
Approach (SEnA) of this Honorable Commission. It issued a notice of conference dated
October 5, 2016 to the respondents. It set the mediation on October 19, 2016 at 10:00 AM. 
No compromise was reached. The respondents were then represented by Atty. xxx.
See the following documents as proofs thereof:

·Annex “E” -    NOTICE OF CONFERENCE, dated October

5, 2016.

·Annex “F” - MINUTES OF CONFERENCE, dated

October 19, 2016; and

·Annex “G” -    REFFERAL, dated October 26, 2016.

17.   The complaint was thus referred filed with this Honorable Commission.  It was raffled to
the Honorable Labor Arbiter xxx xxx. See the following documents:

· Annex “H” – COMPLAINT, dated October 26, 2016.

· Annex “I” – MINUTES, dated November 11, 2016.

18. No compromise was reached at the office of the labor arbiter. Thus the Arbiter ordered the
parties to file their respective position papers on November 29, 2016.

19.  The complainant has written the HR Department of the respondent company to provide him
with a complete copy of his 201 File (Personnel File) because he would need its contents to
support his position paper.

The HR staff xxx xxx simply received it without any favorable action. He made an
annotation thereon that the said 201 File of the complainant had been “pulled out”. By
whom, to whom forwarded, and for what purpose, he did not state. Only the birth
certificate and transcripts of schools records were given to the complainant.

See Annex “J” – LETTER of the complainant duly received by HR-CompenBen Staff

Jerson Balandra on November 17, 2016.

20.    For whatever legal purposes it may serve, considering that the credentials of the
complainant
are relevant to his position paper, he is attaching herewith his BIODATA, TRANSCRIPTS
OF SCHOOL RECORDS, AND DIPLOMA marked as Annex “K” with submarkings.
21.  To prove his good past employment performance and status, attached hereto are copies of
various certificates of service/employment and testimonials issued by his previous
employers from 1994 to 2012 (x x  x, x x x , x x x x, x x x ) marked as Annex “L with
submarkings.

22.  His National Bureau of Investigation (NBI) Clearance (valid until September 21, 2017) is

attached as Annex “M” hereof to prove his good moral character.

23. The family home of the complainant in x x x x   was foreclosed by the xxx Bank of
xxx City in January or February 2015 or thereabout. Due to the illegal dismissal of
the complainant on May 8, 2015, he was unable to save enough funds to REDEEM
the property within the one-year redemption period.

They continue to suffer financial difficulties to support their three young children,
two of whom are students and the youngest is  only two years old.

Their family life and psychological well-being  as a family have been terribly
traumatized, tortured, disturbed, inconvenienced, and shamed to this very day.

This is one reason that nullifies the accusation of the respondents that the complainant
had allegedly resigned voluntarily. Who would resign from his well-paying job amidst
his unpaid mortgage loan in the bank?

To prove the foregoing statement, see the following annexes:

· Annex “N” with submarkings – LETTER, dated November 21, 2016, to xxx Bank
asking for a certification to prove the foreclosure of their family home.

· Annex “O” with submarkings -  xxx Bank records of their mortgage loan, copy of the
land title of the foreclosed family home, and proof of foreclosure of their family
home (which he hopes to secure on November 28, 2016, if time allows).

The illegal acts of the respondents cause the complainant extreme psychological
trauma and anxieties, sleepless nights, besmirched reputation and social humiliation.
He deserves an award of MORAL DAMAGES of P500,000.00, pursuant to the Civil
Code. He likewise deserves an award of EXEMPLARY DAMAGES of P500,000.00 to
serve as a lesson to society, pursuant to the same Code. Further, he deserves an award
of attorney’s fees  equivalent to Ten Percent of the damages awarded, pursuant to the
Labor Code.

II.    ISSUE
The sole issue is whether or not the complainant is entitled to the reliefs prayed for in his
complaint on the ground of illegal dismissal, that is, reinstatement, backwages, money
claims, and moral and exemplary damages, and attorney’s fees.

III.   DISCUSSION

24.   A copy of the relevant parts of the TMCGB (employees’ manual/handbook) is attached

as Annex “P” hereof with submarkings.

Article X of the TMCGB contains the DUE PROCESS PROCEDURE of the

respondent company.

The respondents violated the provisions or steps described hereinbelow.

Step One refers to the Counselling Procedures:

(a)  The supervisor shall personally inform the employee of the deviation.
(b)  A productive counselling and discussion shall be held.
(c)  Agreements shall be documented in a “behavior contract” (Team Member
Improvement Plan [TMIP]).
(d)  The employee shall submit a TMIP (a commitment to improve).
(e)  The TMIP shall be signed by the supervisor and the employee.
(f)  The supervisor shall assist the employee to improve within a 30-day period.
(g)  Counselling shall be done.
(h)  The supervisor shall note the proceedings in his logbook.

It is assumed that the TMIP and other related documents shall form part of the 201
File of the employee.

Step Two refers to the procedures for Written Explanation:

(a)  The supervisor requires the employee to submit a written explanation within forty eight
hours from the occurrence of the deviation.
(b)  A “show-cause memo” will be issued.
(c)  There shall be a “fair hearing”.
(d)  Failure to submit a written explanation is deemed a waiver of one’s right to be heard.

It is presumed that the foregoing proceedings are documented in the 201 File of the
employee.
Step Three refers to the procedures for FACT-FINDING BY IMMEDIATE
SUPERVISOR (not by the Vice President for Human Resource Department headed by
respondent Xxx Xxx).

(a) The employee files the written explanation.

(b) The supervisor gathers the facts “with HRD assistance”.

(c) He makes the recommendations (presumably to the HR Dept. and to the employee).

(d) The employee is given an “AMPLE OPPORTUNITY TO BE HEARD” during

the fact-finding exercise by the supervisor.

(e)  There shall be an ADMINISTRATIVE HEARING where the imposable penalty is

DISMISSAL.

(f) The supervisor may do the fact-finding with the representative of the employee. (It
presupposes the employee must be notified of such a right).

(g) The supervisor then submits his recommendations to his next-level superior. He uses
the “Notice of Corrective Action” for the purpose.

(h) The next-level superior reviews the recommendation. He will forward his findings to
the HR xxx (i.e., respondent Xxx Xxx).

(i)  The “HRA” evaluates the findings/recommendations.

(j)   She endorses the same to the Department Head of the employee.

(k) The Department Head decides within twenty four hours from receipt of the
findings/recommendations.

(l)  The MINUTES OF THE MEETINGS shall be duly signed and made available to
all concerned (presumably, including the employee) within twenty four hours.

It is presumed that the foregoing proceedings are documented in the 201 File of the
employee.

Step Four refers to APPEAL PROCEDURE.

(a)  Within 15 days from receipt of the Decision of the Department Head (not the
respondent HR Business Partner, Xxx Xxx) the employee may submit an APPEAL to
the TEAM MEMBER BEHAVIOR ACTION REVIEW PANEL (again, not the HR
Business Partner, respondent Xxx Xxx).

(b) The said Panel is convened by the MANAGEMENT.

It is presumed that the foregoing proceedings are documented in the 201 File of the
employee.

Step Five refers to the TEAM MEMBER BEHAVIOR ACTION REVIEW PANEL.

(a)  The Department Head recommends the referral of the issue to the TEAM MEMBER
BEHAVIOR ACTION REVIEW PANEL.

(b)  The referral is addressed to the HR Business Partner (respondent Xxx Xxx).

(c)   The HR Business Partner convenes the Panel.

(d)   The Panel shall be composed of the HR Business Partner as the presiding officer,
the Division Head as the deputy presiding officer, the Security Director, one Neutral
Manager, and the Vice President for Human Resource and Administration (HRA).

(e)  The Panel shall be “duly constituted” in writing.

(f)   It shall conduct a “thorough fact-finding”.

(g)  It shall submit its recommendations within five working days from date of 
constitution.

(h)  The legal/constitutional rights of the employee shall be respected during this whole
process.

(i)   If the penalty imposed on an employee with a rank lower than Director position is
DISMISSAL, it is subject to JOINT AUTOMATIC REVIEW by the Vice President for
HRA and the Chief Operating Office (COO).

(j)  The Panel decides by consensus.

(k)  The dissenting opinions within the Panel shall be in writing.

It is presumed that the foregoing proceedings are documented in the 201 File of the
employee.
Article XI refers to the graduated scale of penalties from CORRECTIVE
ACTION/DECISION, CORRECTIVE COUNSELLING (CODE: CC), WRITTEN
WARNING (CODE: WW), SUSPENSION (CODE: S), AND DISMISSAL (CODE:
D).
The graduated scale of the penalty of SUSPENSION ranges from THREE DAYS TO
THIRTY DAYS.

DISMISSAL is the worst of all the penalties. It is xxxed to only after a “THOROUGH
FACT-FINDING HAS BEEN DONE.”

The TMCGB empowers the Department Head, Division Head, Vice President – Human
Resources and Administration (respondent Xxx Xxx), and xxx (respondent Xxx Xxx) to
DISMISS an employee and a supervisor.

This power presupposes the prior observance of the DUE PROCESS rules stipulated
in the TMCGB,  supra.

A written NOTICE OF CORRECTIVE ACTION  shall be served on the employee.

Article XIV refers to the DOCUMENTATION of the disciplinary process. Complete
reports are required. This means the 201 File of the employee must be furnished
copies of all relevant documents.

Article XV refers to the PRESCRIPTIVE PERIOD OF RECORD KEEPING.

The prescriptive period is two years for penalties of three to fifteen days suspension
and three years for penalties of sixteen to thirty days suspension. A subsequent
deviation during the prescriptive period stops the running of such prescriptive period  for
the preceding deviation. (This provision appears to be unconstitutional for being violative
of substantive due process and for being unreasonable). The running of the new
prescriptive period is based on the “latest deviation”. Habituality negates the effects of
prescription.

Article XVIII refers to SUMMARY PROCEEDING IN LIEU OF FACT FINDING.

Summary proceeding is INAPPLICABLE to cases where the imposable penalty is
LESS THAN DISMISSAL. This covers TARDINESS cases.

For purposes of PREVENTIVE SUSPENSION (which is irrelevant in this case), no fact-

finding is needed (and it may be immediately imposed) IF: “committed in the presence of
two or more witnesses”; “deviation is serious and evidence of guilt is strong”; employee is
“convicted by final judgment” in any court; “multiple offender”; and “notoriously
undesirable or dangerous.”

ARTICLE XX refers to the TABLE OF OFFENSES AND PENALTIES.

 Per Rule 15 (Tardiness, Undertime, Overtime and Breaks)  of Part VI
(PUNCTUALITY AND ATTENDANCE) of Article XX of the TMCGB (Page 64) the
penalties are as follows:

(a)  Reporting for work late for three times corresponds to one violation.

(b)  The “reckoning is PER CALENDAR BASIS”.

(c)  For the first violation (three incidents of tardiness in one calendar year) the

penalty is CORRECTIVE COUNSELLING.

(d)  For the second violation (six incidents of tardiness in one calendar year) the
penalty is WARNING.

(e)  For the third violation (nine incidents of tardiness in one calendar year) the penalty
is three days suspension.

(f)  For the fourth violation (twelve incidents of tardiness in one calendar year) the
penalty is six days suspension.
(g)  For the fifth violation (fifteen incidents of tardiness in one calendar year) the
penalty is twelve days of suspension.

(h)  For the sixth violation (eighteen incidents of tardiness in one calendar year) the
penalty is thirty days suspension.

(i)   For the seventh violation (twenty one incidents of tardiness in one calendar year)
the penalty is DISMISSAL.

25.     As earlier stated in Paragraph 11, supra, after a six days suspension, the
complainant was abruptly and illegal DISMISSED on May 8, 2015.

“x x x.

FIRST VIOLATION

As shown in a Notice to Explain, dated 11 April 2014, issued by the Human Resource
Business Partner – Gaming Department headed by respondent Xxx Xxx, the complainant
was penalized for twelve instances of tardiness, the dates of which were stated in the said
Notice (between the period March 12, 2013 to February 19, 2014). The Notice cited Sec.
VI, Article XX (Punctuality and Attendance 15A) of the TEAM MEMBER CODE OF
GOOD BEHAVIOR (TMCGB). To his recollection, the penalty of Corrective
Counselling (CC) was imposed on him. He does not recall having been issued a
memorandum of WARNING. Pursuant to the said Notice, he submitted to the office of
the respondent Xxx Xxx one original copy of his handwritten EXPLANATION (no file
copy for himself).

See Annex “D” – NOTICE TO EXPLAIN, dated 11 April 2014.

The complainant he assumes it was a CORRECTIVE COUNSELLING penalty.

SECOND VIOLATION
           
In the middle of 2014 or thereabout he was issued a  memorandum of WARNING.  He has
no copy now the WARNING document .

THIRD VIOLATION

In November or December 2014 or thereabout he was  SUSPENDED FOR THREE

DAYS. He has no copy now of the document showing such suspension.

FOURTH VIOLATION

In March 2014 or thereabout he was SUSPENDED FOR SIX DAYS. He has no copy now
of the document showing such suspension.

NOTE: Some, if not many, of the TARDINESS of the complainant were caused by the
heavy traffic due to the prolonged CONSTRUCTION and/or IMPROVEMENT of the
street where the xxx was located (with cranes and heavy equipment on the road) and the
long papal visit of POPE FRANCIS in early 2015.

ABRUPT DISMISSAL

On May 8, 2014 at about 2:00 PM to 4:00 PM the complainant was ABRUPTLY AND

VERBALLY DISMISSED FROM EMPLOYMENT by the respondent Xxx Xxx in the
presence of his  immediate superior xxx xxx (xxx Shift Manager) inside the room of Xxx
Xxx.

He was then on duty from 7:00 AM to 3:00 PM.

He was sequestered by Xxx Xxx inside her room.

He was threatened and forced by Xxx Xxx to IMMEDIATELY RESIGN. Otherwise, she
would TERMINATE him (that would surely affect his future employments in other
entities, if any).
 No prior notice to explain was issued to him.

No formal charge was filed against him.

No administrative hearings (due process and opportunity to be heard) were held to discuss
the problem, resolve it amicably, and hear his side. His constitutional right to due process
of law was violated.

X x x.”

26.   Article 277 of the Labor Code provides for the DUE PROCESS OF LAW:

“x x x.

Article. 277. Miscellaneous provisions. - (a) All unions are authorized to collect reasonable
membership fees, union dues, assessments and fines and other contributions for labor
education and research, mutual death and hospitalization benefits, welfare fund, strike fund
and credit and cooperative undertakings. (As amended by Section 33, Republic Act No.
6715, March 21, 1989).

(b) Subject to the constitutional right of workers to security of tenure and their right to be
protected against dismissal except for a just and authorized cause and without prejudice to
the requirement of notice under Article 283 of this Code, the employer shall furnish the
worker whose employment is sought to be terminated a written notice containing a
statement of the causes for termination and shall afford the latter ample opportunity
to be heard and to defend himself with the assistance of his representative if he so
desires in accordance with company rules and regulations promulgated pursuant to
guidelines set by the Department of Labor and Employment.

Any decision taken by the employer shall be without prejudice to the right of the worker
to contest the validity or legality of his dismissal by filing a complaint with the
regional branch of the National Labor Relations Commission. The burden of proving
that the termination was for a valid or authorized cause shall rest on the employer.

The Secretary of the Department of Labor and Employment may suspend the effects of the
termination pending resolution of the dispute in the event of a prima facie finding by the
appropriate official of the Department of Labor and Employment before whom such
dispute is pending that the termination may cause a serious labor dispute or is in
implementation of a mass lay-off. (As amended by Section 33, Republic Act No. 6715,
March 21, 1989).

X x x.”
 27. Article 279 of the Code provides for the SECURITY OF TENURE of a worker:

“x x x.

ART. 279. Security of tenure. - In cases of regular employment, the employer shall not
terminate the services of an employee except for a 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 from the time his compensation was withheld from him up to the time of
his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March 21,
1989). 

X x x.”

28.   Article 282 of the Code speaks of the just grounds to dismiss an employee.

“x x x.

ART. 282. Termination by employer. - 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
representatives; and

X x x.”

29.   The complainant is guilty merely of the MINOR OFFENSE OF TARDINESS.

He is NOT GUILY of SERIOUS MISCONDUCT, GROSS AND HABITUAL

NEGLECT, FRAUD OR WILLFUL BREACH OF TRUST, OR COMMISSION OF
A CRIME AGAINST THE EMPLOYER OR HIS FAMILY OR REPRESENTATIVES.
 He did not deserve the supreme sanction of DISMISSAL (more so WITHOUT DUE
PROCESS OF LAW).

30.    In the case of CAPIN-CADIZ  VS. BRENT HOSPITAL AND COLLEGE, GR

187417, February 24, 2016, it was held that a worker who was illegally dismissed is
entitled to “entitled to reinstatement without loss of seniority rights, and with payment
of backwages computed from the time compensation was withheld up to the date of
actual reinstatement.”

“x x x.

Given the foregoing, Cadiz, therefore, is entitled to reinstatement without loss of

seniority rights, and payment of backwages computed from the time compensation
was withheld up to the date of actual reinstatement.

Where reinstatement is no longer viable as an option, separation pay should be

awarded as an alternative and as a form of financial assistance. 55

 X x x.

Generally, the computation of backwages is reckoned from the date of illegal

dismissal until actual reinstatement. 59

In case separation pay is ordered in lieu of reinstatement or reinstatement is waived

by the employee, backwages is computed from the time of dismissal until the finality
of the decision ordering separation pay. 60

Jurisprudence further clarified that the period for computing the backwages during
the period of appeal should end on the date that a higher court reversed the labor
arbitration ruling of illegal dismissal. 61

X x x.”

31.  In the case of NEW PUERTO COMMERCIAL, ET. AL. VS. LOPEZ, ET. AL., GR
NO.
1699999, JULY 26, 2010, discussed DUE PROCESS OF LAW in labor cases.

“x x x.

In order to validly dismiss an employee, he must be accorded both substantive and

procedural due process by the employer. Procedural due process requires that the
 employee be given a notice of the charge against him, an ample opportunity to be
heard, and a notice of termination. Even if the aforesaid procedure is conducted after
the filing of the illegal dismissal case, the legality of the dismissal, as to its procedural
aspect, will be upheld provided that the employer is able to show that compliance
with these requirements was not a mere afterthought.

X x x.

In termination proceedings of employees, procedural due process 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
apprises the employee of the particular acts or omissions for which his dismissal is
sought; and (2) the second informs the employee of the employer’s decision to dismiss
him. The requirement of a hearing is complied with as long as there was an opportunity to
be heard, and not necessarily that an actual hearing was conducted.[14] As we explained
in Perez v. Philippine Telegraph and Telephone Company:[15]

An employee’s right to be heard in termination cases under Article 277 (b) as implemented
by Section 2 (d), Rule I of the Implementing Rules of Book VI of the Labor Code should
be interpreted in broad strokes. It is satisfied not only by a formal face to face
confrontation but by any meaningful opportunity to controvert the charges against
him and to submit evidence in support thereof.

A hearing means that a party should be given a chance to adduce his evidence to
support his side of the case and that the evidence should be taken into account in the
adjudication of the controversy. Xxx.

X x x.”

IV.  URGENT EX PARTE MOTION FOR PRODUCTION, INSPECTION AND

EXAMINATION OF THE “201 FILE”  (PERSONNEL FILE) OF THE
COMPLAINANT IN THE POSSESSION OF THE RESPONDENTS.

32.  In the interest of fair play, the complainant hereby moves for the production,
inspection and examination of his 201 File (Personnel File), which is now being
withheld by the respondents, so that he can improve his defenses and arguments based on
the contents thereof, if any. He intends to discuss the same in his REPLY POSITION
PAPER to be filed in a future hearing.

V.   MISCELLANEOUS

33.   UNPAID OFFICIAL TIME (15 MINUTES DAILY BRIEFINGS BEFORE COMMENCING
 WORK). – A miscellaneous cause of action that the complainant has alleged is
his UNPAID WORKING HOURS OF FIFTEEN MINUTES DAILY WHICH THE
RESPONDENTS REQUIRED ALL EMPLOYEES TO UNDERGO BEFORE
COMMENCING DAILY WORK.   

He started work on January 7, 2013 and was illegally dismissed on May 8, 2015 – or a
period of two years and four months. His working hours of fifteen minutes of daily
briefings for the said period were all unpaid.

34.    For the record, the complainant will file a letter with the Arbiter, copy furnished the
adverse
counsel, a Letter, dated November 19, 2016, stating and praying for the following:

“x x x.

RE:   MANIFESTATION; XXX vs. XXX XXX, et. al.; NLRC RAD Case No. NCR-
xxx.                                   
           

MABUHAY:

In re: the hearing on November 29, 2016, Tuesday, 10:00 AM, may I please manifest the
following:

I am ready to file on November 29, 2016 at 10:00 AM my POSITION PAPER, without

prejudice to the revival of the Compromise Negotiation.

I move for fifteen days to file my REPLY POSITION PAPER, counted from November
29, 2016.

Despite the filing of the said pleadings, I respectfully move to revive the Compromise
Negotiation between the parties because I want to avoid a prolonged, costly and tedious
litigation, considering that I have been jobless since the time I was dismissed by the
respondent in May 2015.

During the last hearing on November 15, 2016, the counsel for the respondent, Atty. Xxx
Xxx tentatively offered me the following Compromise:

·  Three months’ separation pay;

·  Release of my unpaid receivables amounting to Fifty Thousand Pesos (P50,000.00)
·  Release of my Certificate of Employment (COE).
 I hereby respectfully counter offer to the respondent, through the kind intercession of Atty.
Xxx, the following Compromise, subject to mutual negotiation:

· Six months’ separation pay (subject to further negotiation);

· Release of my unpaid receivables amounting to Fifty Thousand Pesos (P50,000.00)
· Release of my Certificate of Employment (COE).

If Atty. Xxx is empowered to decide on my foregoing counter proposal during the next
hearing on November 29, 2016, I move that the simplified Compromise Agreement be
written by the Labor Arbiter in the Minutes of the Hearing  on the said date.

If Atty. Xxx will need to consult the management of the respondent on my foregoing
counter proposal, I move that the hearing on November 29, 2016 be reset to the following
week or two weeks so that Atty. Xxx could report back to the Labor Arbiter the
decision of the management on my counter proposal.

Thank you for your kind assistance. x x x.”

VI.         PRAYER

WHEREFORE, premises considered, it is respectfully prayed that judgment be issued declaring

that the complainant has been ILLEGALLY DISMISSED by the respondents.
FURTHER, it is respectfully prayed that the respondents be ordered to pay or issue to the
complainant, as the case may be:

(a) BACKWAGES from the date of his illegal dismissal on May 8, 2016 up to the time he
is REINSTATED to his former position without loss of seniority and other benefits.

(b) MORAL DAMAGES of P500,000.00.

(c) EXEMPLARY DAMAGES of P500,000.00.

d)  His RECEIVABLES representing salaries and other benefits due him in the amount

of P61,166.99 as discussed in Paragraph 13, supra.

(d) Attorney’s fees of Ten Percent of Damages AWARDED.

(e) Unpaid 15-minute daily staff briefings for two and one-half years (January 7, 2013 to
May 8, 2015).

(f) His CERTIFICATE OF EMPLOYMENT whether or not he is reinstated.

FINALLY, the complainants respectfully pays for such and other reliefs as may be deemed just
and equitable in the premises.

Xxx City, November 26, 2016.

MR. XXX XXX

Complainant
Address: x x x.

            SUBSCRIBED AND SWORN TO BEFORE ME in xxx City on November 28, 2016,

affiant showing his competent proof of identity as follows: LTO Driver’s License No. x x x.

                                                                             
       Notary Public

Doc. No.
Page No.
Book No.
Series of 2016.

Copy Furnished:

Atty. Xxx Xxx

Counsel for Respondents
(To be personally given during the
hearing on November 29, 2016 at 10:000 AM)