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Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. XI
Davao City

HON. LABOR ARBITER ROVYNE G. JUMAO-AS

ROGER CASTRODES BISMAR

Complainant,
-versus- NLRC Case No. RABXI-03-00061-23
I.P.I INTERNATIONAL PHARMACEUTICALS,
INC./ PIO CASTILLO – PRESIDENT/ JOHN JAMES
DINOPOL – BOD MANAGER
Respondents.

x------------------------------------------------/

POSITION PAPER

Respondents, INTERNATIONAL PHARMACEUTICALS, INC.,

“IPI” for brevity, PIO CASTILLO AND JOHN JAMES DINOPOL, by
counsel, unto this Honorable Office, respectfully state:

STATEMENT OF FACTS

1) Respondent IPI is a domestic corporation engaged in the

business of manufacturing and distributing various
pharmaceutical and healthcare products which includes
liniments, antiseptics, herbal food and beverages as well as
cosmetics, toiletries and medical devices in the Philippines;

2) Respondent IPI’s principal office is in Tingub, Mandaue City.

It maintains a branch in Davao City.

3) Respondent Pio Castillo is the President of respondent

corporation;

4) Respondent John James Dinopol is the BOD Manager in

Davao City;
 Page |2

5) Complainant was a delivery personnel assigned in IPI Davao.

He was hired on 4 July 2004. As delivery personnel, he is
entrusted with the custody and care of IPI’s products that he
is tasked to deliver. He is responsible for the effective, safe
and secure loading/unloading of the delivery. He has the task
of ensuring that all the stocks are delivered to the right
address and persons, ;

6) The standard operating protocol for all delivery personnel is

as follows:

i. Check the accuracy of the stocks to be delivered

against the items reflected in the invoice prior to any
deliveries. When the items and the delivery documents
are found correct and in order then delivery shall
commence.

ii. All stocks have to be delivered to the Customer Name

and Addresses as reflected in the invoice. The delivery
personnel should also ensure that the mode of
payment is duly noted (e.g. Cash on Delivery, Cash,
Post-Dated-Check or CHOD).

iii. Should there be any concern during deliveries, such

as non-payment of delivered items for COD deliveries,
non-acceptance of stocks by the customer,
interception of stocks by the salesman, change in the
delivery address, among other, has to be coordinated
with the Shipping Supervisor.

iv. Have customers acknowledge the deliveries by letting

them affix their signatures;
v. Provide customers a copy of the collection receipt;
vi. For COD deliveries, ensure that the payment is
collected and remitted to the Branch Cashier
afterwards;
vii. Facilitate liquidation of delivery expenses upon return
to the branch.
The standard protocol strictly prohibits deviations in the
delivery.
 Page |3

7) Sometime in September 2022, it was found out that one of

the respondents’ Customer Business Specialist, Jose Carlo
Almonte, had an unremitted collection amounting to Two
Million Nine Hundred One Thousand Seven Hundred
Seventy- Nine Pesos & 62/100 (PHP 2,901,779.62);

8) Mr. Almonte was subjected to disciplinary proceedings

wherein it was revealed that there were several deliveries
which were assigned to Complainant Bismar which were
unloaded to be delivered to the former’s customers. Based on
the statement of Mr. Almonte, a random confirmation of the
Sales Invoices that were assigned to the Complainantwas
conducted. The random confirmation was based on the Daily
Coverage report of the Complainant;

9) Upon confirmation with the customers, it was learned that

some of the them did not receive the deliveries despite the
invoices showing signatures that they were received. These
customers executed statements detailing that the signatures
appearing in the sales invoices do not belong to their
authorized representatives or any of their employees.1

10) The random confirmation revealed that the following

deliveries were not received by the intended customers:

11) The amount of the above-mentioned deliveries that were

not received by the right customers is in the total amount of
Seven Hundred Sixty-One Thousand, Seven Hundred Thirty
Two Pesos & 63/100 (PHP 761,732.63).

1
Annex 1 – 1H Sworn statements of customers that the signatures as appearing in the invoices are not theirs
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12) In view of the result of the audit, Complainant was given a

memorandum requiring him to explain in writing to why the
deliveries were not received by the customers that he was
assigned to deliver the stocks to. 2

13) Complainant sent his letter of explanation3 and said he

actually delivered the items to the customers as can be
proven by the signatures in the sales invoice.

14) To verify the claims of the customers, and the explanation

of the Complainant, comparisons were made between the
signature in the invoices in which the deliveries were actually
received by the customers, and the signatures in the above-
mentioned invoices.

15) The signatures in Sales Invoice 594334, 609585 and

6027654, the deliveries of which and the signatures thereto
were denied by the customer, are different from the
signatures in the sales invoices of deliveries that were
actually received by customer Maejoy Aries Convenience
Store and signed by its authorized receiver5

16) The signatures in Sales Invoice 599685, 614926, 598178

and 6113726, the deliveries of which and the signatures
thereto were denied by the customer, are different from the
signature/s of the authorized receiver/s as can be shown in
the sale invoices of the deliveries which were actually received
by customer r Amplayo Grocery and signed by its authorized
receiver7

17) The signatures in Sales Invoice 606514, 611535 8, the

deliveries of which and the signatures thereto were denied by
the customer, are different from the signature/s of the
authorized receiver/s as can be shown in the sale invoices of
deliveries which were actually received by customer Melanie
Pharmacy9

2
Annex 2 – AUD Memo 220-22
3
Annex 3 – Written Explanation of Complainant
4
Annex 4 – 4B - Sales Invoices denied by Maejoy Aries Convenience Store
5
Annex 5-5H – Sales Invoices of Maejoy Aries Convenience Store showing authorized signatures
6
Annex 6 - 6C - Sales Invoices denied by Amplayo Grocery
7
Annex 7 – 7HSales Invoices Amplayo Grocery showing authorized signatures
8
Annex 8 - 8a - Sales Invoices denied by Melanie Pharmacy
9
Annex 9 – 9HSales Invoices Melanie Pharmacy showing authorized signatures
 Page |5

18) The signatures in Sales Invoice 608959, 608960 10, the

deliveries of which and the signatures thereto were denied by
the customer, are different from the signature/s of the
authorized receiver/s as can be shown in the sale invoices of
deliveries which were actually received by customer Pet’s
Drugstore11

19) The signatures in Sales Invoice 591018, 607438 12, the

deliveries of which and the signatures thereto were denied by
the customer, are different from the signature/s of the
authorized receiver/s as can be shown in the sale invoices of
deliveries which were actually received by customer 3R
General Merchandise13

20) The signature in Sales Invoice 609941 14, the delivery of

which and the signature thereto were denied by the
customer, is different from the signature/s of the authorized
receiver/s as can be shown in the sale invoices of deliveries
which were actually received by customer Princess & Kylle
Sari-sari Store15

21) The signature in Sales Invoice 607474 16, the delivery of

which and the signature thereto were denied by the
customer, is different from the signature/s of the authorized
receiver/s as can be shown in the sale invoices of deliveries
which were actually received by customer Botica Melanie17

22) The signature in Sales Invoice 605053 18, the delivery of

which and the signature thereto were denied by the
customer, is different from the signature/s of the authorized
receiver/s as can be shown in the sale invoices of deliveries
which were actually received by customer Survive Marketing
Warehouse19

23) The signature in Sales Invoice 610767 20, the delivery of

which and the signature thereto were denied by the

10
Annex 10 - 10a - Sales Invoices denied by Pet’s Drugstore
11
Annex 11 – 11I- Sales Invoices of Pet’s Drugstore showing authorized signatures
12
Annex 12- 12A- Sales Invoices denied by 3R General Merchandise
13
Annex 13 – 13F - Sales Invoices of 3R General Merchandise showing authorized signatures
14
Annex 14- - Sales Invoice denied by Princess & Kylle
15
Annex 15 – 15D - Sales Invoices of Princess & KYlle showing authorized signatures
16
Annex 16- - Sales Invoice denied by Botica Melanie
17
Annex 17 – 15D - Sales Invoices of Botica Melanie showing authorized signatures
18
Annex 18- - Sales Invoice denied by Survive Marketing Warehouse
19
Annex 19– 19J - Sales Invoices of Survive Marketing Warehouse showing authorized signatures
20
Annex 20 - Sales Invoice denied by Dos Ihas Mini Mart
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customer, is different from the signature/s of the authorized

receiver/s as can be shown in the sale invoices of deliveries
which were actually received by customer Dos Ijas Mini
Mart21

24) The signature in Sales Invoice 606510 22, the delivery of

which and the signature thereto were denied by the
customer, is different from the signature/s of the authorized
receiver/s as can be shown in the sale invoices of deliveries
which were actually received by customer Woodhaven
Funeral Chapels23

25) The case was then endorsed to the HR Department in

respondent’s principal office and a memorandum 24 requiring
the Complainant to explain in writing and which included a
schedule for the administrative hearing was served to the
Complainant.

26) The Complainant appeared in the administrative hearing

on 3 December 2022. In said hearing he alleged that Mr. Jose
Carlo Almonte did not interfere with his deliveries. However,
he also declared that he called Mr. Almonte on several
occasion when customers refused to accept the deliveries due
to paddings and no order of items. This is in violation of the
standard operating protocol as it requires that if there are
issues, the delivery personnel should coordinate with the
shipping supervisor and not the Customer Service
Specialist/salesman;

27) When asked to identify and confirm the personalities

behind the sales invoice in question, the Complainant was
unable to do so despite having done numerous deliveries with
the same customers for several years;

28) A Notice of Decision25 was sent to the complainant. He was

terminated for loss of trust and confidence, serious
misconduct and gross negligence of duty.
29) Complainant filed a case for illegal dismissal before the
NLRC. The parties were unable to settle the case, and thus,

21
Annex 21 – 21 D - Sales Invoices of Dos Ihas Mini Mart showing authorized signatures
22
Annex 22 - Sales Invoice denied by Woodhaven Funeral Chapels
23
Annex 23– 23D - Sales Invoices of Woodhaven Funeral Chapels showing authorized signatures
24
Annex 24 – Notice to Explain and Formal Investigation
25
Annex 25 – Notice of Dismissal
 Page |7

were ordered to submit their respective position papers on or

before 10 May 2023. Thus, this timely filing.

ARGUMENTS/DISCUSSION

THE COMPLAINANT WAS TERMINATED FOR JUST

AND VALID CAUSES

Under the Labor Code, an employer shall not terminate the

services of an employee except only for a just or authorized
cause.

Article 282 of the same Code codifies the just causes of

termination:

Article 282. Termination by employer. An employer may

terminate an employment for any of the following just
causes:

(a) Serious misconduct or willful disobedience by the

employee of the lawful orders of his employer or
representative in connection with his work;

(b) Gross and habitual neglect by the employee of his

duties;

(c) Fraud or willful breach by the employee of the trust

reposed in him by his employer or duly authorized
representative;

(d) Commission of a crime or offense by the employee

against the person of his employer or any immediate member
of his family or his duly authorized representative; and

(e) Other causes analogous to the foregoing.

The requirement for a just cause is satisfied in this case.

Complainant Bismar was validly terminated for loss of trust

and confidence, serious misconduct and gross negligence.

The Complainant was Terminated

for Loss of Trust and Confidence
 Page |8

Article 282 of the Labor Code allows an employer to dismiss

an employee for willful breach of trust or loss of confidence.
As firmly entrenched in our jurisprudence, loss of trust and
confidence, as a just cause for termination of employment, is
premised on the fact that an employee concerned holds a
position where greater trust is placed by management and from
whom greater fidelity to duty is correspondingly expected.
In the case of Philippine Plaza Holdings, Inc. v. Ma.
Flora M. Episcope26, the Supreme Court held that:

Loss of trust and confidence will validate an employee’s

dismissal only upon compliance with certain
requirements, namely: (1) the employee concerned must
be holding a position of trust and confidence; and (2)
there must be an act that would justify the loss of trust
and confidence.

In the same case, the Highest court identified two classes

of positions of trust:

First, are the managerial employees whose primary duty

consists of the management of the establishment in
which they are employed or of a department or a
subdivision thereof, and to other officers or members of
the managerial staff. The second class consists of the
fiduciary rank-and-file employees, such as cashiers,
auditors, property custodians, or those who, in the
normal exercise of their functions, regularly
handle significant amounts of money or property.
These employees, though rank-and-file, are
routinely charged with the care and custody of the
employer’s money or property, and are thus
classified as occupying positions of trust and
confidence.

Moreover, in the case of JR HAULING SERVICES AND

OSCAR MAPUE, PETITIONERS, VS. GAVINO L. SOLAMO, et
al.27, the Supreme Court in determining whether a position is
imbued with trust and confidence held:

Loss of trust and confidence as a ground for

dismissal of employees covers employees occupying a
26
G.R. No. 192826 February 27, 2013

27
G.R. No. 214294, September 30, 2020
 Page |9

position of trust who are proven to have breached the

trust and confidence reposed on them. Moreover, 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. In this
regard, it is not the job title but the nature of the
work that the employee is duty-bound to perform
which is material in determining whether he holds
a position where greater trust is placed by the
employer and from whom greater fidelity to duty is
concomitantly expected.

Complainant, as a delivery personnel, was entrusted with

the custody, and transportation of IPI’s products, which includes
ensuring the safe and secure delivery of these products to the
proper address and customer, and which entails adhering to the
standard operating protocol to ensure proper delivery. Although
he is not occupying a supervisory position, he was, undoubtedly,
holding a position of responsibility. He is entrusted with
confidence with respect to the handling or care and protection of
the property and assets of the respondent IPI. He was routinely
charged with the care and custody and proper delivery of the
employer’s property. It is, therefore, undisputed that the
complainant was holding a position which is unmistakably
imbued with trust and confidence.
Having addressed the nature of his position, the next
question is whether the acts complained of justified the loss of
trust and confidence so as a valid cause for dismissal.
There is substantial evidence to show that the respondents
have ample reason to distrust the employee.

First, the Customer business specialist, Jose Carlo Almonte,

the prime author of the anomaly, has revealed that several
 P a g e | 10

deliveries assigned to Complainant were unloaded for Mr.

Almonte to be delivered to Mr. Almonte’s customers.

Second, an audit of the Daily Coverage report supported the

claim of Mr. Almonte as it has been shown that some of the
deliveries that were assigned to the Complainant for delivery,
were not received by the customers, despite the fact that the
sales invoices contained signatures acknowledging receipt of the
items.

An inspection of the sales invoices, the receipt of which were

denied by the customers, would show that the signatures as
indicated in these sales invoices, are fictitious and not the
signatures of the customers’ authorized representatives nor of
any of their employees. To buttress this finding, sales invoices of
deliveries to the customers which were actually received and
signed by their authorized receivers are attached and made
integral part of this Position paper for comparison.

Third, when asked to identify and confirm the personalities

behind the sales invoice in question, the Complainant was
unable to do so despite having done numerous deliveries with
the same customers and authorized representatives for several
years.

The Complainant was clearly dishonest when he claimed he

delivered the items to the actual customers as the signatures as
shown in the questioned sales invoices, and the actual receipt of
the items, were firmly denied by the customers.

Fourth, the diversion of the deliveries is clearly a violation of

the standard operating protocol of the respondents as the
protocol was for him to deliver the items to the address and
customer indicated in the sales invoice. The protocol is in place
to ensure the integrity of the deliveries. This was violated by the
Complainant as the IPI products were not received by the actual
customers but were diverted to Mr. Almonte.

Fifth , during the investigative hearing, despite denying that

he did not divert the stocks entrusted to him to Mr. Almonte, he,
however, admitted that he called Mr. Almonte on several
occasions when the customers refused to receive the deliveries
due to padding and that there were no order of items. This is
again, a violation of the SOP as the standard was for the delivery
 P a g e | 11

personnel to contact the Shipping Supervisor, and not the

customer business specialist.

Fifth, the Customers have issued certifications that the

deliveries were not received by them and that the signatures in
the invoices are not of their authorized representatives or any of
their employees.

The discrepancies in the signatures of the sales invoices

and the non-receipt of the customers of the items that were
under the custody of the Complainant, the statement of Mr.
Almonte, the firm denials of the receipt of the items by the
customers, are substantial evidence that Complainant had
breached the trust and confidence reposed in him by the
respondents.

Moreover, the significant amount of loss that the

respondents suffered due to the diversion of stocks and the
bogus signing of the sales invoices further justified the loss of
trust and confidence.

THE COMPLAINANT IS GUILTY

OF SERIOUS MISCONDUCT

Misconduct involves the transgression of some established

and definite rule of action, forbidden act, a dereliction of duty,
willful in character, and implies wrongful intent and not mere
error in judgment28.

For misconduct to be serious and therefore a valid ground

for dismissal, it must be:

1. of grave and aggravated character and not merely

trivial or unimportant and
2. connected with the work of the employee.29

Complainant’s misconduct is serious and of grave

character as it involved fraud and deceit. By diverting the
stocks, and making it appear that the items were received by
the customers, when in fact, they were not, is deceitful and
which caused a significant loss for the company.

Intent to defraud is apparent in the fact in the

discrepancies of the signatures of the sales invoices, the items
28
Nissan Motors Phils vs Victorino Angelo GR 164181 Sept 4 2011
29
Id.
 P a g e | 12

of which were actually received by the customers, and the

signatures in the sales invoices of the items which were not
received by the customers. This is further reinforced by the
sworn statements of the customers that the signatures as
appearing in the subject sales invoice are not of their
representative nor of any of their employees.

The second element is also satisfied as the misconduct

was connected to his work as a delivery personnel.

For committing serious misconduct, Complainant’s

termination was valid.

The Complainant was Validly Terminated

For Gross Neglect of Duties

Under Article 382 of the Labor Code, gross and habitual

neglect of duties by an employee is considered as a just cause
for termination of employment.

Gross neglect of duty or gross negligence "refers to

negligence characterized by the want of even slight care, or by
acting or omitting to act in a situation where there is a duty to
act, not inadvertently but willfully and intentionally, with a
conscious indifference to the consequences, insofar as other
persons may be affected. It is the omission of that care that even
inattentive and thoughtless men never fail to give to their own
property." It denotes a flagrant and culpable refusal or
unwillingness of a person to perform a duty.30

Complainant was clearly grossly negligent when he willfully

failed to follow the established standard operating procedure of
the respondents with regards to the delivery of their items.

Part of the responsibilities of a Delivery personnel is to

ensure that the IPI products will be delivered to the actual
address and customer as indicated in the sales invoice.
Deviations in the delivery is strictly prohibited.

The complainant is well aware of this procedure as he had

been with the company for years, and this established procedure
is constantly reminded to all the Delivery personnel. There was
30
Office of the Ombudsman vs Samson de Leo G.R. No. 154083 February 27, 2013
 P a g e | 13

a flagrant and culpable refusal or unwillingness of the

complainant to perform his duty.

COMPLAINANT IS NOT ENTITLED

TO SOME OF THE MONEY CLAIMS

Complainant was only able to work for 1 month for the year 2023
as his date of termination is 11 February 2023.
Complainant is, therefore, only entitled to his pro-rated 13 th
month pay.
As to his claim for rice allowance, Complainant was able to
receive his January rice allowance but he is not entitled to his
February rice allowance as the CBA requires that for an employee
to receive his rice allowance for the month, he/she should have
rendered work for more than 15 days for the month.
Complainant was only able to work for 11 days.
Complainant is not entitled to
Separation Pay and backwages
------------------------------------------/

An illegally dismissed employee is entitled either to

reinstatement, if viable, or separation pay if reinstatement is no
longer viable, and backwages.31

The reliefs of reinstatement and its alternative, separation

pay, are only given when there is a finding that an employee
was illegally dismissed. The dismissal of complainants in the
instant case being valid and legal, therefore, complainants are
not entitled to full backwages and separation pay.

Complainant is not
Entitled to moral,
Exemplary
damages
-----------------------------/

With respect to complainant’s claim for damages, as a rule,

moral damages are recoverable only when the dismissal or
suspension of the employee was attended by bad faith, fraud, or
constituted an act oppressive to labor, or was done in a manner
contrary to moral, good customs or public policy. (Philippine

31
Aliling vs Feliciano GR No. 185829 April 25 2012
 P a g e | 14

Airlines, Inc. vs. National Labor Relations Commission, G.R. No.

132805, February 2, 1999)
Exemplary damages are recoverable if the dismissal was
done in a wanton, oppressive, or malevolent manner.

In the instant case, the respondents were not moved by

some evil motive in terminating the services of the complainants.
His serious misconduct which resulted to substantial loss of the
company justified the respondents in revoking the trust and
confidence reposed upon him.

Therefore, complainant is not entitled to moral damages.

Further, her dismissal was not effected in a wanton manner,
thus she is also not entitled to exemplary damages.

There being no procedural defect in effecting the dismissal,

there is also no entitlement to nominal damages.

Being dismissed for just cause, complainant is also not

entitled to attorney’s fees.

PRAYER

WHEREFORE, premises considered, it is respectfully

prayed that a judgment be rendered dismissing the instant case.

10 May 2023. Cebu City (for Davao City).

BADUEL * ESPINA & ASSOCIATES

Suite 307, 3rd Floor GMC Plaza Building
Legaspi Ext., cor. M.J. Cuenco Ave.,
Cebu City
Tel No. (032) 254-4626; 254-8403

By:

MANUEL A. ESPINA
Roll No. 32368
PTR No. 4788754-01.04.23-Cebu City
IBP OR No. 274201-01.06.23-Cebu City
MCLE Compliance No. VII-0006410-06.28.21
Email add.: lion81956@yahoo.com.ph
 P a g e | 15

Copy furnished:

Roger C. Bismar
c/o ALU-PSU – 3rd Flr.
ALU Bldg., Roxas Ave.
Cor. Pade Faura St.,
Davao City