Position Paper - Nikko Echaluce v. First Seed of Hope Credit Corp. - NLRC Case No. RAB V-12-00230-23

Nikko Echaluce v. First Seed of Hope Credit Corp.
NLRC Case No. RAB V-12-00230-23

Page 1 of 47
Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. V
Legaspi City
NIKKO F. ECHALUCE,
Complainant,
-versus-
FIRST SEED OF HOPE

CREDIT CORP./JAN PETER
LAHPOR,
Respondents,
NLRC Case No. RAB V-12-

00230-23
Hon. Gener T. Cano
Labor Arbiter
COMPLAINANT’S POSITION PAPER
COMES NOW, the Complainant, by himself and unto this

Honorable Labor Arbitration Office, most respectfully submits this
Verified Position Paper, and in support thereof avers the following, to wit:
I
PREFATORY STATEMENT
1. This is a case of Constructive Dismissal, maliciously and

deliberately perpetrated by the Respondent in order to punish the
Complainant for alleged acts that have no basis in fact or law
simply because the Complainant knew his legal rights and decided
to stand up for himself against a vicious and malevolent employer.
2. Not only did the Respondent make spurious and malicious

allegations of poor performance against the Complainant, after
being placed on preventive Suspension for those allegations, the
Complainant was left to rot, while the Respondent had no intention
of ever reinstating the Complainant or of resolving the
administrative charges filed against him.
Page 2 of 47
3. With deliberate intent, the Respondent placed the Complainant on

preventive suspension indefinitely, for the sole purpose of forcing
the Complainant to resign so that they do not have to dismiss him,
because their charges are fraudulent.
4. This was a case of deliberate and intentional spite, designed to get

rid of an employee without the risk of any form of illegal dismissal.
Such behavior should be punished to the fullest extent of the law.
II
PARTIES
5. The Complainant in this case is NIKKO F. ECHALUCE

(hereinafter referred to as the “Complainant”), Filipino, of legal
age, with post office address at #70, Purok 1, Brgy. Buyoan,
Legazpi City, where he could be served with summons and other
legal processes of this Honorable Office.
6. The Respondent is FIRST SEED OF HOPE CREDIT

CORPORATION (hereinafter referred to as the “Respondent”), a
business organized and existing under the laws of the Philippines,
with SEC Registration Number CS201713212 and business address
at Armstel Bldg., Bagtang Rd., Sagpon, Daraga, Albay, where the
said company and representatives could be served with summons
and other legal processes of this Honorable Office.
7. Party-Respondent is JAN PETER LAHPOR (hereinafter referred to

as “Respondent Lahpor”), a CEO of the aforementioned
Corporation, with address at Armstel Bldg., Bagtang Rd., Sagpon,
Daraga, Albay, where he could be served with summons and other
legal processes of this Honorable Office.
III
STATEMENT OF FACTS
8. The Complainant was hired on 27 August 2022 as a “Field

Consultant” for the Respondent Company, with a salary in the
amount of Eight Thousand Nine Hundred Seventy (Php 8,970.00)
pesos per calendar month1 based on a six-day working week (26
working days per month or 312 working days per year), in violation
of the Minimum Wage Rate given by the National Wages and
Productivity Commission – Regional Tripartite Wages and
Productivity Board for Region V.2
1
A copy of "Pay Slips" is attached herein as Annex “A” and is made an integral part hereof.
2
See Wage Order No. RBV-20, dated 2 June 2022 and effective 18 June 2022
Page 3 of 47
9. Complainant was issued a Job Offer from the Respondent on 24

August 20223, wherein the Complainant was offered the hired
position of Field Consultant, with benefits and requirements posited
therein.
10.Complainant agreed to the job offer, and signed his Employment

Contract, which contained the requirements for the position, as well
as several basic contractual clauses regarding his employment with
the Respondent Company.4
11.The Employment Contract also agreed to the following benefits,

which are to be included as part and parcel of the remuneration of
the Complainant for the purposes of computing back wages and
other awards in this herein case:
 13th Month Pay: 1/12 of Annual Basic Pay per Labor Law
Guidelines;
 Non-Taxable Allowance of Php 1,300.00 per month;
12.Complainant worked diligently from his start date on 27 August
2022 until he was surprisingly suspended for alleged “poor
performance” on 12 January 2023, just before he was due to be
regularized.
13.On 12 January 2023, the Complainant was presented with a letter

entitled “NOTICE OF SUSPENSION”, the contents of which
stated, for the record:
MEMORANDUM
DATE : JANUARY 12, 2023
TO : NIKKO FERNANDEZ ECHALUCE

Field Consultant Daraga Branch
FROM : THE CEO
SUBJECT : NOTICE OF SUSPENSION
Your collection performance in November 2022 was 7.07%

and the last two weeks it was only 3.86%. You have been
asked to improve your performance several times through the
BM and the CEO. However you are still failing. Please
explain to us why you have such a bad performance and you
3
A copy of "Job Offer dated 24 August 2022" is attached herein as Annex “B” and is made an integral
part hereof.
4
A copy of "Employment Contract dated 27 August 2022" is attached herein as Annex “C” and is made
an integral part hereof.
Page 4 of 47
don't improve. We expect your response on these issues in

writing not later than January 13, 2023.
In compliance with the company policy and rules this

violation is considered Class E section 6:
"Gross and habitual neglect by the employee of his/her
work"
Penalty: Dismissal.
In the meantime you are suspended from January 12, 2022

without pay. You are required to turn over all company-
owned possessions detailed to you as an employee.
Further, you are disallowed to report at any of our offices

nor perform all your duties and responsibilities until further
notice.
JP LAHPOR
CEO5
14.Since the Notice required the Complainant to submit his response

within one day of receipt of the Notice, the Complainant, under
duress, submitted his Explanation, but did not retain a copy of his
handwritten response.
15.Following the receipt of the Notice by the Complainant, he also

returned all the equipment provided by the Respondent Company,
as required in the Notice, and went home to await further
instructions from HR.
16.However, no further real instructions or reasons regarding this

illegal suspension came from HR, or from anyone else, and for
several months, the Complainant attempted to contact the
Respondent to find out what was going to happen, but most of his
communications received no reply.
17.Primarily, on 14 January 2023, the Complainant contacted Ms.

Wayne Lopez, of the HR Department, to query the validity of the
suspension.
18.Instead of giving any explanation, Ms. Lopez passed the buck to

Dhan Jay De Dios, informing the complainant that he would
explain anything the Complainant needed to know.6
5
A copy of "Notice of Suspension dated 12 January 2023" is attached herein as Annex “D” and is made
6
A copy of "Conversation with Ms. Wayne Lopez" is attached herein as Annex “E” and is made an
integral part hereof.
Page 5 of 47
19.On 17 January 2023, the Complainant contacted Mr. De Dios, the

Head of the Respondent Company’s HR Department, asking about
the period of the suspension.
20.Mr. De Dios responded to the Complainant’s query with the

statement that the suspension was “indefinite”, to wit:
“suspension nyo is indefinite kaya wlang date so

anytime yon at it will depend on your
explanation letter nagpasa naba kayo.”
(Your suspension is indefinite, so there is no

date, so it's anytime and it will depend on your
explanation letter that you passed.)7
21.The Complainant expressed his dismay and informed the HR Head

that the suspension was unjustified, but got no further responses
from Mr. De Dios.
22.Complainant tried to contact the Respondent Company several

times, but to no avail, and in December 2023, after no contact at all
from the Respondent Company for 11 months, the Complainant
was advised by legal counsel to file a Complaint for Constructive
Dismissal.
23.On 18 December 2023, the Complainant filed a Request for

Assistance with the Single Entry Approach (SEnA) Desk of the
Department of Labor and Employment (DOLE) for “Illegal
Dismissal”.
24.In the corresponding conciliation and mediation conferences, no

settlement was achieved, and SEnA Proceedings were terminated
for referral to the NLRC for Mandatory Arbitration.
25.The Complaint in the NLRC for Mandatory Arbitration was filed

on 19 December 2023, and mandatory conferences were set for 1
and 13 February 2024.
26.In the first conference on 1 February 2024, the Respondent’s

representative was insistent that the suspension was legal and was
allowed to be indefinite because of alleged “unremitted
collections”, and refused to agree to negotiations for settlement.
7
A copy of "Conversation with Mr. De Dios, Head of HR," is attached herein as Annex “F” and is made
Page 6 of 47
27.In the second conference on 13 February 2024, the Respondent

failed to attend, despite notice, so mandatory mediation was
terminated and this Honorable Office gave the order for submission
of Position Papers within ten days, or until 23 February 2024 at
2:00 pm. Hence, this Position Paper is timely filed.
IV
ISSUES
A
THE COMPLAINANT WAS
ILLEGALLY SUSPENDED.
B
THE COMPLAINT WAS
CONSTRUCTIVELY
DISMISSED DUE TO BEING
SUSPENDED INDEFINITEY
AND NOT BEING
REINSTATED AFTER 30
DAYS.
C
THE COMPLAINANT WAS
SUBJECTED TO
UNDERPAYMENT OF
MINIMUM WAGE.
D
THE RESPONDENT IS
LIABLE FOR PAYMENT OF
COMPLAINANT’S BACK
WAGES AND SEPARATION
PAY.
E
RESPONDENT IS LIABLE
FOR MORAL AND
EXEMPLARY DAMAGES,
AND ATTORNEY’S FEES.
V
ARGUMENTS/DISCUSSIONS
A. THE COMPLAINANT WAS ILLEGALLY SUSPENDED.

Page 7 of 47
1. Complainant was placed on “preventive suspension” on 12 January

2023, as can be gleaned from the Notice of Suspension he was
provided with.
2. Suspension actually only comes in three forms in labor law;

preventive suspension, punitive suspension, and forced leave or
temporary retrenchment.
3. Forced leave or temporary retrenchment is a form of suspension of

the employer-employee relationship for a defined period not
exceeding six (6) months in law, or 180 days.
4. This form of suspension is resorted to in cases where the employer

needs to reduce his head-count and overheads due to financial
losses or reverses and is preferable to outright termination. Hence it
is known as “temporary” retrenchment.
5. Punitive Suspension is resorted to in cases where an employee has

violated the Labor Code or the Company’s Code of Conduct or
Company Policies, and has been found guilty of the administrative
charges against him.
6. The employee is then punished or sanctioned with the penalty laid

out in the Code of Conduct for such, of which periods of 1, 3, 5, 7,
10, and 30 days of suspension without pay are often given as the
permitted punishment.
7. And then we have Preventive Suspension, the third type of

suspension, which is meted out only in cases where the employee is
suspected and charged of offenses under the Labor Code or the
Company Code of Conduct and his continued presence in the
workplace may be a danger to the employer or the workforce, or the
employee may be likely to interfere with the Company’s
investigation into the allegations in the Administrative Charges.
8. Preventive suspension is a disciplinary measure for the protection

of the company's property pending investigation of any alleged
malfeasance or misfeasance committed by the employee.
9. The pertinent provision regarding preventive suspension is Section

8 of Rule XXIII, Book V of the Omnibus Rules Implementing the
Labor Code (Omnibus Rules), to wit:
“Section 8. Preventive suspension.— The

employer may place the worker concerned
under preventive suspension if his continued
Page 8 of 47
employment poses a serious and imminent

threat to the life or property of the employer or
of his co-workers.”
10.As can be seen from the attached “Notice of Suspension”, the

Complainant was alleged to have had some poor performance in his
collections over the previous few weeks, and the Notice of
Suspension, which was also a Notice to Explain (the first notice in
the Twin Notices Rule), required the Complainant to explain in
writing no later than the following day why his performance has
dropped and not improved.
11.And yet, not a single piece of evidence, other than the baseless and
self-serving statements of the Respondent, was provided in the
Notice of Suspension to show that there was any drop in the
Complainant’s performance.
“Your collection performance in November

2022 was 7.07% and the last two weeks it was
only 3.86%.”
12.This was the ONLY thing provided by the Respondent to “explain”

the allegations of a drop in performance of the Complainant, and
this is nothing more than some figures randomly plucked out of thin
air with no basis in actual hard facts or evidence to support its
truthfulness.
13.One must wonder where in this allegation the Complainant has

committed an infraction, offense, or violation that would warrant
being issued a notice of Preventive Suspension.
14.In Lafuente and Panaguiton v. Davao Central Warehouse Club,

Inc.8, the Supreme Court reiterated its stance on Preventive
Suspension to state:
“Preventive suspension is a disciplinary

measure for the protection of the company's
property pending investigation of any alleged
malfeasance or misfeasance committed by the
employee. The employer may place the worker
concerned under preventive suspension if his
continued employment poses a serious and
imminent threat to the life or property of the
employer or of his co-workers.” [Emphasis
supplied]
8
G.R. No. 247410, March 17, 2021
Page 9 of 47
15.Even assuming, in arguendo, the alleged failure to perform to the

required levels is true, the continued presence of the Complainant
in his duties poses no “serious and imminent threat to the life or
property of the employer or of his co-workers”.
16.Preventive suspension may be legally imposed against errant

employee only when his alleged violation is the subject of an
investigation and resorted to only while he is undergoing an
investigation for certain serious offenses. Its purpose is to prevent
him from causing harm or injury to the company as well as to his
fellow employees.
17.It is justified only in cases where the employee’s continued

presence in the company premises during the investigation poses a
serious and imminent threat to the life or property of the employer
or of the employee’s co-workers. Without this threat, preventive
suspension is not proper.9
18.The Complainant was a mere Field Agent. To remove the

Complainant and place him under preventive suspension was
excessive in the extreme.
19.It should be noted here that, as per the case of Premiere

Development Bank v. NLRC, where a preventive suspension is
without valid cause it is tantamount to CONSTRUCTIVE
DISMISSAL:
“By placing her on indefinite suspension,

complainant was unduly deprived of her right to
security in employment which is her only means
of livelihood. It is very evident that complainant
was already placed on constructive dismissal
status as of March 13, 1986 when she was
placed on preventive suspension indefinitely.
The actuation of respondents since no other
sound interpretation but a predetermined effort
of dismissing complainant from the service in
the guise of preventive suspension.”10
20.In Michelle Tay vs. Apex 8 Studios, the Supreme Court made
several interesting remarks as to the validity of placing an
employee on preventive suspension. Not the least of which was, to
wit:
9
Maula v. Ximex Delivery Express, Inc., G.R. No. 207838, January 25, 2017
10
G.R. No. 114695, July 23, 1998
Page 10 of 47
“The Court is not convinced that the above

incidents are justifiable basis for preventive
suspension. Respondents failed to present any
substantial evidence of how petitioner's
presence in the work place posed a serious and
imminent threat to the life and property of the
company and its employees to justify petitioner's
suspension for 30 days. Respondents likewise
did not prove that petitioner's presence would
hinder or obstruct the investigation. Thus, the
preventive suspension imposed on petitioner
was illegal and she is entitled to her unpaid
salaries for the period that she was preventively
suspended without pay.”11
21.In the instant case, the Respondent has provided no reasons as to

how the Complainant posed such a grave and serious threat to the
life and property of the company and its employees to justify the
preventive suspension of the Complainant.
22.The ONLY allegation of the Respondents against the Complainant

was a completely unsubstantiated and refuted claim that his
collection performance was failing. But with no evidence to show
that, the claims of the Respondent are baseless and unsubstantiated,
and therefore worthless in the extreme.
23.Since there was no ground for a charge that would warrant being
placed on preventive suspension, such preventive suspension
obviously becomes illegal. And if the preventive suspension is
illegal or wrongly implemented, the Complainant was
Constructively Dismissed on 12 January 2023.
24.But even assuming the preventive suspension was within the rights
of the Respondent to issue, it was still illegal because the terms of
that preventive suspension violated the rules given in the
Implementing Rules of the Labor Code.
25.The Respondent, in its Notice of Suspension, failed to state that the

preventive suspension of the Complainant was for a mere 30-day
period:
“In the meantime you are suspended from

January 12, 2022 without pay. You are
required to turn over all company-owned
possessions detailed to you as an employee.
11
G.R. No. 241360, Jul 06, 2021
Page 11 of 47
Further, you are disallowed to report at any of

our offices nor perform all your duties and
responsibilities until further notice.”
26.UNTIL FURTHER NOTICE. The exact statement provided by the

Respondent in their Notice of Suspension issued to the
Complainant on 12 January 2023.
27.Not thirty (30) days, as per the LAW. But “until further notice”, a
period undefined and indefinite, for as long as the Respondent
deems it suitable for the Complainant to remain suspended.
28.While no period was mentioned in the Notice of Suspension, the

Complainant was actually told “until further notice” in the Notice
itself, and was told by Mr. De Dios that “suspension nyo is
indefinite kaya wlang date”.
29.With this information, the Complainant was obviously placed on

preventive suspension for an indefinite period, which means the
preventive suspension itself is actually illegal.
B. THE COMPLAINT WAS CONSTRUCTIVELY DISMISSED

DUE TO BEING SUSPENDED INDEFINITEY AND NOT
BEING REINSTATED AFTER 30 DAYS.
30.As previously shown, the Complainant was illegally placed on

preventive suspension.
31.However, assuming in arguendo that the preventive suspension was

applied correctly, the Complainant was still constructively
dismissed for the twin-reasons of: 1. Being suspended indefinitely;
and 2. Not being reinstated after 30 days.
“When preventive suspension exceeds the

maximum period allowed without reinstating the
employee either by actual or payroll
reinstatement12 or when preventive suspension is
for indefinite period13, only then will
constructive dismissal set in.”14
32.The Complainant was placed under preventive suspension and not

reinstated, either in actuality or through payroll, and was left on
preventive suspension for months.
12
Hyatt Taxi Services, Inc. v. Catinoy, supra note 16 at 305.
13
Pido v. National Labor Relations Commission, G.R. No. 169812, 23 February 2007
14
Mandapat v. Add Force Personnel Services, Inc., G.R. No. 180285, July 6, 2010
Page 12 of 47
33.To this day, the preventive suspension has neither been lifted nor
ended with a Notice of Decision for the alleged violations of the
Company Code of Conduct
34.Section 9 of Rule XXIII, Book V of the Omnibus Rules

Implementing the Labor Code (Omnibus Rules) also gives the
period for which a Preventive Suspension can be implemented, to
wit:
“SECTION 9. Period of suspension. — No

preventive suspension shall last longer than 30
days. The employer shall thereafter reinstate the
worker in his former or in a substantially
equivalent position or the employer may extend
the period of suspension provided that during
the period of extension, he pays the wages and
other benefits due to the worker. In such case,
the worker shall not be bound to reimburse the
amount paid to him during the extension if the
employer decides, after completion of the
hearing, to dismiss the worker.” [Emphasis
supplied]
35.The MAXIMUM period for preventive suspension is just thirty (30)

days. If the preventive suspension is given for an indefinite period,
it is deemed to be an illegal suspension.
36.In ENLI v. Maria Minellie Dela Cruz,15 citing Pido v. National

Labor Relations Commission,16 the Supreme Court stated that
placing an employee on preventive suspension for an indefinite
period led to Constructive Dismissal.
“Section 9 is clear that the employer had the

positive duty of reinstating the preventively
suspended employee upon the lapse of the 30-
day period sans extension. When the period of
preventive suspension exceeds the maximum
period allowed without reinstating the employee
actually or through payroll, or when the
preventive suspension is for an indefinite
period, constructive dismissal sets in.”
[Emphasis supplied]
15
G.R. No. 225100, February 19, 2020
16
G.R. No. 169812, February 23, 2007
Page 13 of 47
37.Thus, the Complainant may again be considered terminated due to

Constructive Dismissal because his preventive suspension violated
the rules, the law, and settled jurisprudence.
38.Even assuming, in arguendo, that there was a valid ground for the
Complainant being placed on preventive suspension, and the
“indefinite” period is not applied, that preventive suspension is
always subject to the rules laid out for it in the Omnibus Rules
Implementing the Labor Code and Supreme Court jurisprudence.
39.Preventive Suspension is permitted when there is ground for a

belief that the employee may pose “a serious and imminent threat”,
but even then, there are limits to a preventive suspension, and those
limits are provided for in Section 9 of the Omnibus Rules, as
previously cited.
40.The Supreme Court has had a lot to say about such matters over
recent years, and has covered almost every eventuality when it
comes to issues of preventive suspension.
41.In PAL vs. National Labor Relations Commission 17, the Supreme
Court was faced with an employee who was placed on preventive
suspension for a period in excess of 30 days, and found that the
failure of the employer to reinstate after the end of the 30 day
maximum period, or to pay wages as a paid suspension, meant that
the suspension had ripened into Constructive Dismissal.
“Thus, the NLRC was correct in reversing the

Decision dated February 21, 2013 of the Labor
Arbiter not because Dela Cruz was illegally
dismissed on June 22, 2012, but because her
preventive suspension which was initially valid
had ripened into constructive dismissal upon the
lapse thereof on July 22, 2012 without Dela
Cruz having been reinstated actually or in the
payroll.”
42.Even assuming the Respondents’ placing of the Complainant on

preventive suspension was valid, which is a far stretch of the
imagination, the Complainant was still terminated due to
Constructive Dismissal when he was not reinstated at the end of the
30 days.
43.The Complainant was placed on Preventive Suspension on 12

January 2023. This means the last day of his MAXIMUM period of
17
G.R. No. 114307 July 8, 1998
Page 14 of 47
30 days was on 11 February 2023, assuming the first day is not

counted but the last day is, as per usual.
44.But was the Complainant reinstated on 12 February 2023? Did he

go back to work? Was he paid all the salary and benefits that he
was due? No. he was not. Instead, the Respondent forgot all about
him and left him hanging on that preventive suspension
indefinitely.
45.So if the Complainant was never reinstated, then he was considered

as Constructively Dismissed following the end of the MAXIMUM
period of preventive suspension of 30 days and the Respondents’
failure to reinstate him.
46.Since it is blatantly obvious from the foregone evidence that the

preventive suspension of the Complainant for the notice provided
on 12 January 2023 was incorrect, illegal, and extended past 30
days, the preventive suspension had fully ripened into Constructive
Dismissal.
47.As Section 9 of the Implementing Rules expressly provides, in the

event the employer chooses to extend the period of suspension, he
is required to pay the wages and other benefits due the worker and
the worker is not bound to reimburse the amount paid to him during
the extended period of suspension even if, after the completion of
the hearing or investigation, the employer decides to dismiss him.
48.The herein Respondents did not inform the Complainant that it was
extending the period, nor did it pay him his wages and other
benefits after the lapse of the 30-day period of suspension. Neither
did Respondents issue an order lifting the Complainant’s
suspension, or any official assignment, memorandum or detail
order for him to assume his post or another post. Respondent
merely chose to ignore the fact that the period had ended, and went
about its usual business.
49.The Notice of Suspension that was issued against the Complainant

for alleged “poor performance”, which required him to submit his
Written Explanation within just ONE (1) DAY, was never resolved.
No hearing was ever convened, despite the Complainant submitting
his Written Explanation by the day following issuance of the Notice
of Suspension.
50.With no resolution of this Notice for more than a year now, it can
be deemed that the Respondent decided not to follow through with
its Administrative Action and release any Decision on the matter,
Page 15 of 47
therefore the matter of the Notice and the allegations of “poor

performance” may now be considered closed.
51.And yet, one can almost guarantee that, in their Position Paper, the
Respondent will attempt to claim that they had valid grounds to
terminate the employment of the Complainant, so there can be no
claim of Constructive Dismissal.
52.This is utter poppycock, and any claim for “valid grounds” should
be dismissed for lack of merit.
53.The Respondent will also attempt to claim that the indefinite

suspension is valid because the Respondent will also claim that the
Complainant owes them money.
54.In the Mediation Conference before this Honorable Office on 1

February 2024, the Respondent’s representative confirmed that the
suspension was meant to be indefinite, and that the company had no
intention of reinstating the Complainant because of the money they
alleged he owed them from allegedly unremitted collections.
55.The allegations against the Complainant of unremitted collections

was not even mentioned to the Complainant until eleven (11)
months after the Complainant was suspended in January 2023, on
the filing of the Notice with the Respondent for the SEnA
Conciliation and Mediation Conference.
56.At the time of the suspension of the Complainant on 12 January

2023, there were no allegations of unremitted collections. Nor has
any Notice of these alleged unremitted collections ever been
provided to the Complainant.
57.From the mouth of the Respondent’s representative, before this

Honorable Office, the admission came that the indefinite
suspension was deliberate, and that the Complainant would not be
reinstated because of the alleged unremitted collections.
C. THE COMPLAINANT WAS SUBJECTED TO

UNDERPAYMENT OF MINIMUM WAGE.
58.The Complainant was hired on 27 August 2022 as a probationary

employee with a salary in the amount of EIGHT THOUSAND
NINE HUNDRED SEVENTY (Php 8,970.00) pesos per month,
“paid on twice-per-monthly schedule and based on a 12-month
calendar year”.
Page 16 of 47
59.The complainant’s Contract of Employment18 states that his

schedule of work consists of an eight-hour working day and a six-
day working week. Thus, the Complainant would be expected to
work a total of 312 days per year, based on his six-day working
week.
60.Considering the amount of his salary was provided as Php 8,970.00

per month, this comes to a total of Php 107,640.00 per year.
(8,970.00 x 12 months)
61.If the Complainant earns Php 107,640.00 per year, and works 312
days per year, the daily wage rate of the Complainant comes to just
Php 345.00 per day.
62.As can clearly be seen from the payslips issued to the Complainant,
the daily rate therein was given as Php 345.00 per day.
63.On 27 August 2022, the Minimum Wage Rate for the

Complainant’s location in Albay Province, was Three Hundred
Sixty-Five (Php 365.00) pesos per day.19
64.For the period from his engagement on 27 August 2022 to the date
of his December 15 pay, complainant was underpaid of the
Minimum Wage in the amount of Twenty (Php 20.00) pesos per
day.
65.While this may not seem like much, it amounts to around 95 days
of underpayment of Minimum Wage. That actually amounts to a
total of around One Thousand Nine Hundred (Php 1,900.00) pesos.
66.The Respondent did correct its incorrect pay amount in December

2022, wherein the pay slip for 31 December 2022 reflected the
correct pay amount of Php 365.00 per day.
67.But at no time did the Respondent offer to pay the Complainant for
this underpayment, and in fact kept it quiet from the Complainant,
who was not aware that he had been underpaid until this Complaint
was raised, and it was noticed by counsel.
D. THE RESPONDENT IS LIABLE FOR PAYMENT OF

COMPLAINANT’S BACK WAGES AND SEPARATION
PAY.
18
See Annex “C” herein
19
A copy of "Wage Order No. RBV-20, effective 18 June 2022 " is attached herein as Annex “G” and is
made an integral part hereof.
Page 17 of 47
68.As to the entitlement of Remuneration for the termination of

employment, the Complainant believes that he is entitled to be paid
what he is owed for the period from the illegal termination of his
employment up to the date of Finality of Judgment of the Decision
of the Honorable Labor Arbiter, for an unethical, illegal, and
malicious suspension that resulted in his Constructive Dismissal.
The Complainant was deprived of his livelihood due to the
unethical and immoral acts of the Respondent.
69.The Complainant has a right to security of tenure, a right afforded

by nothing less than the Constitution. Moreover, the Complainant
has the right under the Labor Code to Due Process, a right which
was also blatantly ignored by the Respondent.
70.The herein Complainant is entitled to “back wages” from the date

of his constructive dismissal on 12 February 2023, the date of the
end of the period of Preventive Suspension which caused his
Constructive Dismissal, to the date of the decision of this
Honorable Office.
71.This fact is based on the longstanding jurisprudence of the Supreme

Court, wherein back wages have always been given where the
Illegal or Constructive Dismissal of an employee has resulted in the
loss of their salary.
72.This was clearly given in the case of CICM Mission Seminaries, et

al. v. Perez, which stated that payment of back wages:
“x x x …shall be reckoned from the time

compensation was withheld up to the finality of
this Court's decision. This was reiterated in
Surima v. NLRC20 and Session Delights Ice
Cream and Fast Foods v. CA.21 [Emphasis
supplied]
73.Such back wages should include all his benefits and allowances, or
their monetary equivalents, as well as any salary increases that have
been promulgated for his former position since the date of
separation from employment.
74.In Paguio v. Philippine Long Distance Telephone Co., Inc., the

Court explained the ratio for the award of backwages:
“In several cases, the Court had the opportunity

to elucidate on the reason for the grant of
20
Surima v. NLRC, G.R. No. 121147. June 26, 1998
21
Session Delights Ice Cream and Fast Foods v. CA., G.R. No. 172149, February 08, 2010
Page 18 of 47
backwages. Backwages are granted on grounds

of equity to workers for earnings lost due to
their illegal dismissal from work. They are a
reparation for the illegal dismissal of an
employee based on earnings which the employee
would have obtained, either by virtue of a lawful
decree or order, as in the case of a wage
increase under a wage order, or by rightful
expectation, as in the case of one's salary or
wage. The outstanding feature of backwages is
thus the degree of assuredness to an employee
that he would have had them as earnings had he
not been illegally terminated from his
employment.”22
75.Article 294 (279) of the Labor Code states that an employee who is
dismissed unjustly shall be entitled to back wages, allowances and
other benefits from the time of his dismissal to the time of
reinstatement.
76.In the event, however, that reinstatement is no longer feasible, or if

the employee decides not be reinstated, the employer shall pay him
separation pay in lieu of reinstatement. In sum, an illegally
dismissed employee is entitled to: (1) either reinstatement (if
viable) or separation pay (if reinstatement is no longer viable); and
(2) back wages.
“Clearly, the law intends the award of

backwages and similar benefits to accumulate
past the date of the Labor Arbiter’s decision
until the dismissed employee is actually
reinstated. But if, as in this case, reinstatement
is no longer possible, this Court has consistently
ruled that backwages shall be computed from
the time of illegal dismissal until the date the
decision becomes final.”23
77.In the case of Aliling v. Feliciano24, citing Golden Ace Builders v.

Talde25, the Supreme Court explained:
“Thus, an illegally dismissed employee is

entitled to two reliefs: backwages and
reinstatement. The two reliefs provided are
separate and distinct. In instances where
22
Paguio v. Philippine Long Distance Telephone Co., Inc., G.R. No. 154072, December 3, 2002
23
Daniel P. Javellana, Jr. vs. Albino Belen, G.R. No. 181913, March 05, 2010
24
Aliling vs. Feliciano, et. al., G.R. No. 185829, April 25, 2012
25
Golden Ace Builders & Arnold U. Azul vs. Jose A. Talde, G.R. No. 187200, May 05, 2010
Page 19 of 47
reinstatement is no longer feasible because of

strained relations between the employee and the
employer, separation pay is granted. In effect,
an illegally dismissed employee is entitled to
either reinstatement, if viable, or separation pay
if reinstatement is no longer viable, and
backwages.
The normal consequences of respondents' illegal

dismissal, then, are 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 equivalent to one (1)
month salary for every year of service should be
awarded as an alternative. The payment of
separation pay is in addition to payment of
backwages.”
78.In this instant complaint, the Complainant no longer wishes for

reinstatement due to the reprehensible treatment at the hands of his
former employers, the Respondents, and the breakdown of the
relationship due to their illegal, unethical, immoral, and disgusting
actions.
79.Therefore, the Complainant is entitled to Separation Pay in the

amount given by this Honorable Office, as reinstatement with the
Respondent Company is no longer possible, in accordance with the
previous next paragraph, and other remunerations pertaining to his
employment that remain outstanding.
80.Following the pronouncements of the Supreme Court in Sagales v.

Rustan’s26, the computation of separation pay in lieu of
reinstatement includes the period for which backwages is awarded:
“Thus, in lieu of reinstatement, it is but proper

to award petitioner separation pay computed at
one-month salary for every year of service, a
fraction of at least six (6) months considered as
one whole year. In the computation of
separation pay, the period where backwages are
awarded must be included.”
81.The Complainant had a right to security of tenure, a right afforded

by nothing less than the Constitution, which was violated, resulting
26
Julito Sagales v. Rustan’s Commercial Corporation, G.R. No. 166554, November 27, 2008
Page 20 of 47
in his illegal dismissal, and the complaint before this Honorable

Office. Consequently, such right must be rectified at the expense of
the Respondent.
E. RESPONDENT IS LIABLE FOR MORAL AND

EXEMPLARY DAMAGES, AND ATTORNEY’S FEES.
82.Cleary, the Respondents violated the statutory rights of the herein

Complainant i.e. the right to Due Process in dismissal. It is
blatantly obvious from the foregoing details of this instant case that
the Complainant’s rights were violated without thought or
consideration.
83.Complainant is entitled to moral and exemplary damages because

the Preventive Suspension of the Complainant was attended by bad
faith and constitutive of an act oppressive to labor. In the case of
Lim vs. NLRC,27 the Supreme Court upheld the award of moral as
well as exemplary damages in view of the bad faith attendant to the
treatment of the employee.
84.In the instant case at bar, there is no other plausible explanation for
the acts of the Respondents in their blatant and malicious
termination of the herein Complainant without Due Process by
refusing to reinstate him after the 30 days preventive suspension.
85.Under Philippine law, Bad Faith implies a conscious and

intentional design to do a wrongful act for a dishonest purpose or
moral obliquity.
86.In the instant case, the Respondent deliberately and maliciously

failed to reinstate the Complainant at the end of the maximum
period of 30 days for Preventive Suspension, and later used the
malicious excuse of “unremitted collections” to justify the
“indefinite” suspension the Respondent’s representative admitted to
before this Honorable Office on 1 February 2024.
87.The Respondent had no intention of ever reinstating the

Complainant. This was not a mere oversight on the part of the
Respondent in failing to reinstate the Complainant. It was a
deliberate act of malice to refuse to reinstate the Complainant for an
obviously dishonest purpose.
88.Where a company prerogative is exercised in Bad Faith, as in this

case, the employee’s right to Due Process is violated. As such, the
failure of the Respondent to follow Due Process in the Preventive
27
Samuel Casas Lim v. NLRC and Victoria R. Calsado, GR No. 79907, Mar 16, 1989
Page 21 of 47
Suspension and failure to reinstate the Complainant denotes Bad

Faith in their exercise of this action.
89.On the subject of Legal Fees payable to the Complainant for their
costs in filing this instant case, it is requested that the Honorable
Labor Arbiter award fees in the amount of ten (10) percent of the
total amount of the award.
90.Under the Labor Code, legal fees are a given, and the respondent
must be assessed for the cost of attorney’s fees when the employer
unlawfully withholds the wages of the employee, as was done in
this instant case. The Labor Code specifically states, to wit:
“Art. 111. Attorney’s fees. In cases of unlawful

withholding of wages, the culpable party may be
assessed attorney’s fees equivalent to ten
percent of the amount of wages recovered.”
91.In the instant case, not only was the Complainant illegally
suspended and constructively dismissed, but his wages were
illegally withheld, wherein the Complainant was DELIBERATELY
underpaid of the Minimum Wage for the region of his employment.
92.Moreover, the Civil Code of the Philippines also stipulates where

such award of attorney’s fees may be granted, and states, to wit:
“ARTICLE 2208. In the absence of stipulation,

attorney’s fees and expenses of litigation, other
than judicial costs, cannot be recovered, except:
(2) When the defendant’s act or omission has

compelled the plaintiff to litigate with third
persons or to incur expenses to protect his
interest;
(5) Where the defendant acted in gross and

evident bad faith in refusing to satisfy the
plaintiff’s plainly valid, just and demandable
claim;
(11) In any other case where the court deems it

just and equitable that attorney’s fees and
expenses of litigation should be recovered.”
93.Based on the aforementioned grounds, attorney’s fees should be

awarded for the Complainant’s expenses in bringing this instant
Page 22 of 47
case before this Honorable Office for the recovery of wages;

because of the bad faith actions of the Respondent; and to recover
the expenses of litigation that the Complainant has been forced by
the Respondent to pay in order to rectify the illegal, immoral, and
unethical actions of the Respondent Company.
VI
PRAYER
WHEREFORE, premises considered, it is most respectfully

prayed of this Honorable Labor Arbiter, that decision be rendered, to wit:
1. Declaring the Complainant herein to have been Illegally Suspended

due to the “indefinite” period of suspension applied to the
Complainant; and
2. Declaring the Complainant herein to have been Constructively

Dismissed due to the failure of the Respondents to reinstate him at
the end of the period of Preventive Suspension; and
3. Awarding the amount for the Underpayment of Minimum Wage in

the amount provided by this Honorable Office for the period of
underpayment; and
4. Awarding back wages from the time of the adjudged dismissal of

the Complainant to the time of the Finality of Judgment of this
herein Complaint, based on the Minimum Wage Rates current from
the date of deemed dismissal on 12 February 2023 to Finality of
Decision of this Honorable Office; and
5. Awarding Separation Pay at the rate of One Month per year of

service from the date of hire to the date of Finality of Judgment;
6. Awarding Moral Damages in the amount of One Million (Php

1,000,000.00) pesos and Exemplary Damages in the amount of One
Million (Php 1,000,000.00) pesos for the bad faith treatment and
illegal suspension of the Complainant.
Other reliefs, just and equitable under the premises, are likewise
prayed for.
RESPECTFULLY SUBMITTED.
Legazpi City, Philippines, February ____, 2024.

Page 23 of 47
_____________________
Nikko F. Echaluce
Copy furnished: (by hand)
First Seed Of Hope Credit Corporation

c/o Dhan Jay De Dios, HR Head
Armstel Bldg., Bagtang Rd.,
Sagpon, Daraga, Albay
Received by:
_________________________
(For and on behalf of First Seed Of Hope Credit Corporation)
Page 24 of 47
VERIFICATION AND CERTIFICATION
I, Nikko F. Echaluce, Filipino, of legal age, and with post office

address at #70, Purok 1, Brgy. Buyoan, Legazpi City, after having duly
sworn to in accordance with law, do hereby depose and state:
1. That I am the Petitioner in the above-entitled case;

2. That I 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;
6. That I further certify that there is no pending action or proceeding
involving the same issues in the Supreme Court, Court of Appeals,
or any other tribunal or agency. If I should thereafter learn that the
same or similar action is pending, I shall undertake to inform the
Honorable Office of this fact within five (5) days therefrom.
IN WITNESS WHEREOF, I have hereunto affixed my signature

this _____ day of ___________, 2024 in ______________________.
___________
Nikko F. Echaluce
SUBSCRIBED AND SWORN TO before me this _____ day of

_________, 2024 in ______________, with _________________ (ID)
No. __________, valid until _____________, and I hereby certify that I
personally examined the affiant herein and that I am fully satisfied that he
voluntarily executed the foregoing petition and understood all the
allegations herein.
WITNESS MY HAND AND SEAL at the place and date first written
above.
NOTARY PUBLIC
Doc. No. ____

Page No. ____
Book No. ____
Series of 2024.
Page 25 of 47
ANNEX “A”
Page 26 of 47
Page 27 of 47
ANNEX “B”
Page 28 of 47
ANNEX “C”
Page 29 of 47
Page 30 of 47
Page 31 of 47
ANNEX “D”
Page 32 of 47
ANNEX “E”
Page 33 of 47
Page 34 of 47
Page 35 of 47
Page 36 of 47
Page 37 of 47
Page 38 of 47
Page 39 of 47
Page 40 of 47
Page 41 of 47
Page 42 of 47
Page 43 of 47
ANNEX “F”
Page 44 of 47
Page 45 of 47
Page 46 of 47
ANNEX “G”
Page 47 of 47

Position Paper - Nikko Echaluce v. First Seed of Hope Credit Corp. - NLRC Case No. RAB V-12-00230-23

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Position Paper - Nikko Echaluce v. First Seed of Hope Credit Corp. - NLRC Case No. RAB V-12-00230-23

Uploaded by

Copyright:

Available Formats

Nikko Echaluce v. First Seed of Hope Credit Corp.

NLRC Case No. RAB V-12-00230-23

Republic of the Philippines

FIRST SEED OF HOPE

NLRC Case No. RAB V-12-

COMPLAINANT’S POSITION PAPER

COMES NOW, the Complainant, by himself and unto this

1. This is a case of Constructive Dismissal, maliciously and

2. Not only did the Respondent make spurious and malicious

3. With deliberate intent, the Respondent placed the Complainant on

4. This was a case of deliberate and intentional spite, designed to get

5. The Complainant in this case is NIKKO F. ECHALUCE

6. The Respondent is FIRST SEED OF HOPE CREDIT

7. Party-Respondent is JAN PETER LAHPOR (hereinafter referred to

8. The Complainant was hired on 27 August 2022 as a “Field

9. Complainant was issued a Job Offer from the Respondent on 24

10.Complainant agreed to the job offer, and signed his Employment

11.The Employment Contract also agreed to the following benefits,

13.On 12 January 2023, the Complainant was presented with a letter

DATE : JANUARY 12, 2023

TO : NIKKO FERNANDEZ ECHALUCE

FROM : THE CEO

SUBJECT : NOTICE OF SUSPENSION

Your collection performance in November 2022 was 7.07%

don't improve. We expect your response on these issues in

In compliance with the company policy and rules this

In the meantime you are suspended from January 12, 2022

Further, you are disallowed to report at any of our offices

14.Since the Notice required the Complainant to submit his response

15.Following the receipt of the Notice by the Complainant, he also

16.However, no further real instructions or reasons regarding this

17.Primarily, on 14 January 2023, the Complainant contacted Ms.

18.Instead of giving any explanation, Ms. Lopez passed the buck to

19.On 17 January 2023, the Complainant contacted Mr. De Dios, the

20.Mr. De Dios responded to the Complainant’s query with the

“suspension nyo is indefinite kaya wlang date so

(Your suspension is indefinite, so there is no

21.The Complainant expressed his dismay and informed the HR Head

22.Complainant tried to contact the Respondent Company several

23.On 18 December 2023, the Complainant filed a Request for

24.In the corresponding conciliation and mediation conferences, no

25.The Complaint in the NLRC for Mandatory Arbitration was filed

26.In the first conference on 1 February 2024, the Respondent’s

27.In the second conference on 13 February 2024, the Respondent

A. THE COMPLAINANT WAS ILLEGALLY SUSPENDED.

1. Complainant was placed on “preventive suspension” on 12 January

2. Suspension actually only comes in three forms in labor law;

3. Forced leave or temporary retrenchment is a form of suspension of

4. This form of suspension is resorted to in cases where the employer

5. Punitive Suspension is resorted to in cases where an employee has

6. The employee is then punished or sanctioned with the penalty laid

7. And then we have Preventive Suspension, the third type of

8. Preventive suspension is a disciplinary measure for the protection

9. The pertinent provision regarding preventive suspension is Section

“Section 8. Preventive suspension.— The

employment poses a serious and imminent

10.As can be seen from the attached “Notice of Suspension”, the

“Your collection performance in November

12.This was the ONLY thing provided by the Respondent to “explain”

13.One must wonder where in this allegation the Complainant has

14.In Lafuente and Panaguiton v. Davao Central Warehouse Club,

“Preventive suspension is a disciplinary

15.Even assuming, in arguendo, the alleged failure to perform to the

16.Preventive suspension may be legally imposed against errant