Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSIONS

Regional Arbitration Branch No. VI
Bacolod City
-oOo-

XXX T. CRUZ
Complainant,
RAB Case No. NIR-08-xxxx-16
-versus-

XXX REAL ESTATE

DEVELOPMENT CORP./---
LAWRENCE XXX - PRESIDENT
Respondents.

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

POSITION PAPER

RESPONDENTS, through counsel, unto this Honorable Regional

Arbitration Branch, most respectfully avers as follows:

STATEMENT OF THE CASE

1. This is a case for illegal dismissal and for money claims such as
salaries/wages, overtime pay, holiday pay, premium pay for holiday, service
incentive leave pay, 13th month pay and separation pay against respondent
XXX Real Estate Development Corporation and its --- Lawrence XXX as
allegedly President of respondent corporation, filed by their former
employee, complainant XXX Cruz.

2. On July 22, 2016, XXX Cruz filed a complaint with the National
Labor Relations Commission RAB No. VI, Bacolod City for the above-
mentioned causes of action. Summons were issued to then respondents XXX
Xxxand --- XXX as owner/manager, requiring their presence for conciliation
conferences which were set on August 18, 2016 and August 23, 2016. A
preliminary mandatory conference was then set on November 16, 2016
Regional Arbitration Branch - NIR.

3. On November 17, 2016, complainant XXX Cruz filed and amended

complaint impleading XXX Real Estate Development Corporation instead
and --- Lawrence XXX as President. Summons were again received by the
respondents to appear for a mandatory conference on January 23, 2017.
However, despite diligent efforts from the respondent, no amicable
settlement was arrived and any attempt towards amicable settlement was
futile. Hence, this position paper.

THE PARTIES

4. XXX Cruz (complainant) was a motorpool truck helper of the

respondent, XXX Real Estate Development Corporation (CORP for brevity)
from years 2009 - 2015. During that time, he showed the corporation his
interest in taking on driving jobs while he was learning how to drive. On
January 2016, XXX Lake Ranch, a recreational resort owned by Micheal
XXX as a single proprietor, gave complainant Cruz an opportunity to better
his occupational status and drive its company van within the premises of the
resort. At this time, he was no longer employed by CORP but with XXX
Xxxuntil his date of termination on May 30, 2016.

5. XXX Real Estate Development Corporation/CORP1 (respondent) is a

juridical entity organized and existing under the laws of the Republic of the
Philippines with principal address at Door # 1 & 2 Hi Strip 4 Commercial
Road, Bacolod City. It is engaged in the business of real estate buying,
developing, subdividing and selling within the Philippines. It is represented
in this instance by __, who is duly authorized by the Board of Directors to
represent CORP in this case.

6. --- Lawrence XXX as President of CORP (respondent) is not a real

party in interest in this case. The inclusion of Mr. XXX as respondent in his
alleged capacity as CORP President is a superfluity. Mr. XXX, while being
one of the _board/owner?_ of the respondent corporation, is a sepraate and
distinct personality from CORP and as a matter of course, he should be
excluded as respondent from this case.

FACTS OF THE CASE

7. Complainant Cruz was formerly employed by respondent CORP from

2009 - 2015 as motorpool truck helper. He worked as an assistant and
1
Copies of BREDC’s Certificate of Registration and Certificate of Incorporation is hereto attached as Annex “” and
Annex “” and made an integral part of this position paper.
companion of the company’s truck driver. His duty included but was not
limited to ensuring basic maintenance of the truck, extra set of eyes during
traffic safety and assistance during truck parking.

8. While employed in the motorpool, complainant Cruz showed interest

in driving and learned how to drive while he was still a truck helper. He
would also present himself whenever driving tasks are available. In fact, on
July 21 2015, XXX Cruz made a cash advance request of Five Hundred
Pesos (P500.00) with CORP for him to process his student permit with the
Land Transportation Office (LTO). This request was granted and evidenced
by complainant’s cash advance2 request and Cash Voucher3 dated July 21,
2015.

9. On January 2016, XXX Lake Ranch, a single proprietorship owned by

--- XXX but with a personality separate and distinct from CORP, gave
complainant Cruz a job opportunity to better his employment. They offered
him to take on the task of driving their resort van within the premises of the
resort. This offer was accepted by complainant and severed his ties with
CORP.

10. On January 25, 2016, XXX Cruz submitted a letter request4 and cash
advance request5 to the management of XXX Xxxfor the amoung of Two
Thousand Five Hundred (P2, 500) Pesos . He expressed that he needed this
money for him to process his professional driver’s license since he be driving
the resort van.

11. XXX Xxxis aware that the complainant does not need a professional
driver’s license since he will only be driving the van within company
premises, but good will considered, complainant’s cash advance was granted
the next day. This is evidenced by Cash Voucher No. 0011536 dated January
26, 2016 (incorrectly dated as 2015). Due to the cash advance requests of
complainant Cruz for his LTO License, XXX Xxxreasonably assumed that
XXX Cruz has had acquired a Driver’s License.

12. It also worth noting at this point, and also for future reference that
XXX Cruz commonly asks other people to write on his behalf with his
express instructions. He claims that he is only able to write a few words and
sign by hand. His requests and and letters, however were always taken as his,
without question.
2
A copy of the Complainant Templado’s cash advance request to BREDC is hereto attached as Annex “” and made an
integral part of this position paper
3
A copy of the BREDC Cash Voucher is hereto attached as Annex “” and made an integral part of this position paper
4
A copy of the Complainant Templado’s Letter Request to XXX Lake Ranch dated January 25, 2016 is hereto attached
as Annex “” and made an integral part of this position paper.
5
A copy of the Complainant Templado’s cash advance request to XXX Lake Ranch dated January 25, 2016 is hereto
attached as Annex “” and made an integral part of this position paper.
6
A copy of the Cash Voucher is hereto attached as Annex “” and made an integral part of this position paper.
 13. A quick examination of complainant’s cash advance request dated
July 21 2015, letter request and cash advance request both dated January 25,
2016 i.e. exhibits “”, “” and “” would readily show that these have been
written by different persons and none of them could have been XXX Cruz.
But these letter requests were all used and submitted by the complainant and
all redounded to his benefit.

14. On May 8, 2016, XXX Cruz logged in for work in XXX Xxxin the
morning. Without notice, however, he went missing for his afternoon shift
which should have been from 1:30 - 5:00 PM. He did not come back to the
resort for work until after five o’clock in that same afternoon, drunk and out
of control.

15. Albeit drunk, he went straight to the Mitsubishi L300 Van owned by
the resort and drove it recklessly around the company premises, all against
the instructions and plea of his direct supervisor, Raquel Sombe. The
statements of Raquel Sombe are all supported and attesed by her Incident
Report7 dated May 8, 2016 and her Affidavit8 dated February _, 2017.

16. XXX Cruz’s reckless driving resulted him to run over a wheelbarrow
owned by XXX Lake Ranch. After which, he smashed the company van into
a rambutan tree causing serious damage to the vehicle. After which he
proceeded to deliberately flatten the same wheelbarrow by running over it,
multiple times until the wheelbarrow no longer serviceable to the company
and became nothing but pieces of scrap metal.

17. Other XXX XxxEmployees worked together to contain the turmoil

XXX Cruz by closing gates and traffic barriers to avoid damage to resort
guests and their properties.

18. He caused unnecessary fear and panic among his co-workers and
became an imminent threat to other employees, resort guest and their
properties. While he caused actual damage to company properties. These
assertions are supported by Affidavits dated February __, 2016 executed by
complainant’s former co-workers, Michelle Flores9, Robert Gaisen10 and
Margarito Agravante11.

19. Due to the series of unfortunate events caused by the complainant,

the management of XXX Xxxissued a notice of suspension, suspending

7
A copy of Raquel Sombe’s Incident Report is hereto attached as Annex “” and made an integral part of this position
paper.
8
A copy of Raquel Sombe’s Affidavit is hereto attached as Annex “” and made an integral part of this position paper.
9
A copy of the Affidavit of Michelle Flores is attached as Annex “” and made an integal part of this position paper.
10
A copy of the Affidavit of Robert Gaisen is attached as Annex “” and made an integal part of this position paper.
11
A copy of the Affidavit of Margarito Agravante is attached as Annex “” and made an integal part of this position
paper.
XXX Cruz until May 24, 2016 in order that the management may review his
case.

20. This notice was received by complainant Cruz in the morning of May
10, 2016 but refuse to sign its receipt. The Show Cause Memo served to
XXX Cruz contained a notice of his violation and nothing else.

21. A few hours after its service or around 11 o’clock in the morning that
same day, XXX Cruz returned the copy of the suspension notice with his
written and signed explanation.

22. XXX Xxxhad no hand whatsoever in preparing his written response

or explanation. In the affidavit of Raquel Sombre, the wife of a certain
Ruperto Cabigo was asked by complainant Cruz to write down his
explanation on his behalf, through his own instructions. The one who wrote
down the explanation for XXX Cruz is no in anyway connected to XXX
Xxxand XXX Xxxhad no previous knowledge about it.

23. It is worth repeating that XXX Cruz commonly asks other people to
write on his behalf with his express instructions. Thus, management, after
learning of the fact that another person wrote XXX Cruz’s explanation, did
not make an issue out. Especially so that his authentic signature appears on it
and the his written explanation was personally brought and submitted by the
complainant to the management.

24. After deliberate review and consideration, XXX Xxxissued a Notice

of Termination to complainant XXX Cruz. This notice was explained to him
by XXX Lake Ranch’s Human Resource Officer, Ms. Carmeli XXX on May
31, 2016. Complainant Cruz received and acknowledged this Notice of
Termination or second notice by affixing his signature on a copy of the
notice.

25. XXX Cruz initiated the filing of this baseless complaint on July 22,
2016 to extort money from the company and people who gave him
employment opportunities and venue where he can better himself. He
alegges that he has been illegally dismissed with money claims, which are
without basis in fact and in law.

COUNTER ARGUMENTS

Respondents in this case are not the

Real Party in Interest
---------------------------------------------
 26. Respondents hereby repleads and restates the allegations in the
preceding paragraphs and further allege that respondents in this case are not
the real party in interest.

27. Impleaded herein as respondents are XXX Real Estate Development

Corporation (CORP) and --- Lawrence XXX in his alleged capacity as
President of CORP.

28. CORP, a corporation which line of business is buying, selling,

developing and subdividing real estate properties, was the employer of
complainant XXX Cruz where he worked as a truck helper from 2009 -
2015. Complainant Cruz’s employment with respondent CORP has long
been amiably severed when XXX Xxxoffered him a better employment
opportunity which he freely accepted on January 2016. XXX Lake Ranch, on
the other hand, is a single proprietorship owned by --- XXX, a completely
separate entity from CORP, which has not been impleaded in this case.

29. --- Lawrence XXX in his alleged capacity as President of CORP is a

separate and distinct personality from CORP. Following the doctrine of
separate corporate existence, an officer, stockholder, owner or member of the
board of a corporation has a personality separate and distinct from the
persons composing it.

30. In Francisco v. Mallen, Jr.12, the Supreme Court repeats the time-
honored doctrine:

“A corporation is a juridical entity with legal personality

separate and distinct from those acting for and in its behalf
and, in general, from the people comprising it. The rule is that
obligations incurred by the corporation, acting through its
directors, officers and employees, are its sole liabilities.
 
To hold a director or officer personally liable for corporate
obligations, two requisites must concur: (1) complainant
must allege in the complaint that the director or officer
assented to patently unlawful acts of the corporation, or
that the officer was guilty of gross negligence or bad
faith; and (2) complainant must clearly and convincingly
prove such unlawful acts, negligence or bad faith.”
(Emphasis, not ours)

31. The inclusion of --- Lawrence XXX in this case thereby is not only a
superfluity but is contrary to long established legal principles.

12
G.R. No. 173169, September 22, 2010
 32. XXX Lake Ranch, a single proprietorship owned by --- Lawrence
XXX, a registered business in the line of recreational activities. XXX
Xxxemployed the services of the complainant from January 2016 until his
Termination on May 31, 2016. XXX Lake Ranch, however, is not a party in
this case. A party not impleaded shall not be affected by its judgment and
subsequent legal actions. Thus no relief can be recovered from XXX
Xxxwithout violating the law, the rules and the right to due process.

Complainant was not illegally

dismissed and is not entitled to
separation pay.
---------------------------------------------

33. Respondents hereby repleads and restates the allegations in the

preceding paragraphs and further allege that there is no case for illegal
dismissal.

34. By way of summarizing, XXX Cruz, committed the following

specific acts which merited his dismissal, to wit:

a) Complainant Cruz abandoned his work in the afternoon of May

8, 2016;
b) He went back after his shift drunk, and drove the L300 van
owned by his employer against the instructions of his immediate
supervisor;
c) He caused fear, panic to his co-workers and became a threat to
the company, company employees, company property, company
guests and their respective properties;
d) He deliberately destroyed a wheelbarrow owned by XXX Lake
Ranch;
e) He smashed the L300 van owned by the company, into a tree
and caused serious damage to the van;
f) He caused commotion in the workplace and disrupting the
otherwise peaceful conditions of XXX Lake Ranch.

35. The dismissal of XXX Cruz was grounded upon his commission of a
series of offenses constisuting Serious Misconduct and Willful
Disobedience. XXX Cruz was legally dismissed by his employer due to just
and valid causes pursuant to Article 282 of the Labor Code of the
Philippines.

36. Based in the foregoing, it was complainant Cruz who had given
grounds for his rightful termination. Hence, there is no factual basis to hold
the respondent, or any other person accountable for illegally dismissing the
complainant other that himself.

37. As a measure of self-protection against act inimical to its interest, a

company has the right to dismiss its erring employees.13 The law does not
impose unjust situations on either labor or management.

38. In the same vein, complainant Cruz, having been rightfully

dismissed, is not entitled to separation pay. Separation pay is an amount a
severed employee receives in cases of termination due to authorized causes
such as installation of labor saving devices or redundancy. It is not given to
employees terminated due to just or valid causes as it was the employee who
has given ground for his/her termination.

39. By way of exemption, as a measure of social justice the law may

grant separation pay based on compassionate justice taking into
consideration the length of service of the employee. This exemption,
however, is not awarded to employees guilty of gross misconduct or for
cause reflecting on his moral character, as in this case.

40. In Manila Water Co. v. Del Rosario14 the Supreme Court stressed
caution in awarding separation pay.

“Indubitably, the appellate court erred in awarding

separation pay to Del Rosario without taking into
consideration that the transgression he committed constitutes
a serious offense. The grant of separation pay to a dismissed
employee is determined by the cause of the dismissal. The
years of service may determine how much separation pay may
be awarded. It is, however, not the reason why such pay
should be granted at all.

In sum, we hold that the award of separation pay or any

other kind of financial assistance to Del Rosario, under the
nomenclature of compassionate justice, is not warranted in the
instant case. A contrary rule would have the effect of
rewarding rather than punishing an erring employee,
disturbing the noble concept of social justice. (Emphasis ours)

41. Procedural due process was likewise afforded to XXX Cruz. He was
served a first notice which he received on May 10, 2016. Along with is was
the chance to be heard by the management. XXX Xxxlikewise made a fair
review of the violations committed by their former employee.

13
Dole Phil., Inc. v. National Labor Relations Commission, 123 SCRA 673, (1983)
14
G.R. No. 188747. January 29, 2014
 42. However, after much deliberation, XXX Xxxdecided to sever the
employment of the complainant and issued a Notice of Termination,
compliant with the twin-notice rule of our Labor Laws.

Complainant’s claim for Wage

Differentials, Overtime Pay, Holiday
Pay, Service Incentive Leave Pay,
Damages and Attorney’s Fees are
bereft of merit.
---------------------------------------------

43. Respondent hereby repleads and restates the allegations in the

preceding paragraphs and further allege that complainant’s claim for wage
differentials, overtime pay, holiday pay, service incentive leave pay,
damages and attorney’s fees are bereft of merit.

Was the complainant paid his salaries, in

accordance with Labor Standard Laws

44. The answer is in the affirmative.

45. (payslips not completed yet by XXX)

II

Was the complainant paid his 13th month pay

46.

III

Is the complainant entitled to Overtime Pay,

Holiday Pay and/or Service Incentive Leave Pay

47. The answer is in the negative.

48. Complainant Cruz, having been hired to drive the company van
around the XXX Xxxpremises is a field employee. As defined by the Labor
Code, a "field personnel" is one who performs the work away from the office
and whose regular work hours cannot be determined with reasonable
certainty. They are those who perform functions which "cannot be
effectively monitored by the employer or his representative”15.

15
Duterte v. Kingswood Trading Co., Inc., G.R. No. 160325, October 4, 2007
 49. Article 82 of the Labor Code specifically excludes field employees
from the coverage of the law regarding conditions of employment which
include overtime pay, holidays, and service incentive leaves. XXX Cruz,
being a field employee is thereby not entitled to his claims of overtime pay,
holiday pay and service incentive leave pay.

50. XXX Cruz thereby is not entitled to Overtime Pay, Holiday Pay
and/or Service Incentive Leave Pay.

51. Moreover, Article 95 of the Labor Code provides that:

Art. 95. Right to service incentive leave. – (a) Every

employee who has rendered at least one year of service shall be
entitled to a yearly service incentive leave of five days with pay.

52. XXX has only been employed by XXX Xxxfrom January to May of
2016 which is only five (5) months. The law requires a minimum of one (1)
year of service before an employee may be entitled to service incentive
leave.

IV

Is the complainant entitled to moral damages,

exemplary damages and attorney’s fees?

53. It is a hornbook doctrine that when a party is claiming damages, he

bears the burden of presenting clear and convincing evidence that he is
entitled to damages. In this case however, the complainant miserably failedd
to present an iota of meritorious evidence that (1) there was an illegal
dismissal; and (2) that it 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.

54. The Supreme Court instructs that claims that are unsupported by
evidence must be denied. The Court made this point very clear in the
landmark case of Audion Electric Co., Inc., v. NLRC, where it ruled as
follows:

“However, the award of moral and exemplary damages

must be deleted for being devoid of legal basis. Moral and
exemplary damages are recoverable only where the dismissal
of an 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. The person claiming moral damages must prove the
existence of bad faith by clear and convincing evidence for
the law always presumes good faith. It is not enough that one
 merely suffered sleepless nights, mental anguish, serious
anxiety as the result of the actuations of the other party.
Invariably, such action must be shown to have been willfully
done in bad faith or with ill motive, and bad faith or ill motive
under the law cannot be presumed but must be established
with clear and convincing evidence. Private respondent
predicated his claim for such damages on his own allegations
of sleepless nights and mental anguish, without establishing
bad faith, fraud or ill motive as legal basis therefor.

Private respondent not being entitled to award of moral

damages, an award of exemplary damages is likewise
baseless. Where the award of moral and exemplary damages
is eliminated, so must the award for attorney's fees be
deleted. Private respondent has not shown that he is entitled
thereto pursuant to Art. 2208 of the Civil Code.”

55. The foregoing doctrine was reiterated and strengthened by the

Supreme Court in succeeding cases, no less than in the case of Acua v. Hon.
Court of Appeals,16 to wit:

“Moral and exemplary damages are recoverable only where

the dismissal of an 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.
The person claiming moral damages must prove the existence
of bad faith by clear and convincing evidence, for the law
always presumes good faith. Petitioners allege they suffered
humiliation, sleepless nights and mental anguish, thinking
how they would pay the money they borrowed for their
placement fees. Even so, they failed to prove bad faith, fraud
or ill motive on the part of private respondents. Moral
damages cannot be awarded. Without the award of moral
damages, there can be no award of exemplary
damages, nor attorneys fees.”

56. On the strength of the foregoing definite jurisprudential rule,

respondent respectfully asserts that complainant’s prayer for moral damages,
exemplary damages and lawyer’s fees should be DENIED.

RELIEFS

WHEREFORE, premises considered, respondent respetfully prays that

the complaint for illegal dismissal, money claims, damages and attorney’s
fees, filed in this instant case, be DISMISSED.

16
G.R. No. 159832. May 5, 2006.
 Other relies deemed just and equitable are likewise prayed for.

Bacolod City Philippines, February 23, 2017.

DIAZ+ DIAZ BORROMEO AND

ASSOCIATES LAW OFFICES
Counsel for the Respondent
Room 215, 2nd Floor, Capitol Subd., Bldg.
15th Lacson Street, Bacolod City

RAYFRANDO P. DIAZ II
Roll No. 44841
IBP Lifetime Member No. 011556
PTR No. 6346396 - 01/03/17 Bacolod City
MCLE Compliance No. V-0010979/10-08-2015

KATHLEEN ANNE S. KING

Roll No. 65324
IBP Lifetime Member No. 015163
PTR No. 6686257 01/04/17 Bacolod City
MCLE Governing Board Order No. 1
Series of 2008

Copy Furnished:

ATTY. VALENTINO J. ESPIRITU

2906 Gen. Malvar St., Gonzaga Subd.,
Brgy.Villamonte Bacolod City