Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Ppsta Bldg., Banawe., Quezon City

John Paul S. Ocampo,

Complainant,

-versus- NLRC NCR CASE NO. ________________

SECURE SECURITY AGENCY, INC.

Respondent,
X------------------------------------------X

POSITION PAPER

COMPLAINANT by the undersigned counsel and unto this Honorable

Labor Arbitration Office, most respectfully submits this position paper and
avers the following to wit:

PREFATORY STATEMENT

The Complainant in this case is John Paul S. Ocampo, of legal age, married,
with post office address at Justice Ramon Jabson St., Malinao R., Pasig City
where he could be served with summons and other legal processes of this
Honorable Office.

The Respondent is SECURE SECURITY AGENCY, INC. a business

establishment owned by Mr. Ricardo Mabantay, with business address at
389 Quezon Ave, Corner West 6th Street, Diliman, Quezon City, where the
said representatives could be served with summons and other legal
processes of this Honorable Office.

Consequently, the complainant filed the instant complaint before this

Honorable Office last February 14, 2017 specifically claiming illegal dismissal
from service.
 Page 2 of 8

STATEMENT OF FACTS

1. The complainant John Paul S. Ocampo was an employee, hired as a

security guard by the Respondent, Secure Security Agency, Inc. on
December 2013.

2. From then on, he was assigned by the Respondent to its various clients
within Metro Manila area. The business undertaking of the said
Respondent is to deploy Security Guards to its various clients all over the
Philippines.

3. In fact, the Complainant was deployed by the Respondent sometime in

2014 for five (6) to six (7) months. The Complainant worked for six (6)
days a week but sometimes must render seven (7) days a week. He
normally worked for 8 hours per day but there were times he must render
twelve (12) hours depending on their assigned post.

4. The monthly wage rate of the Complainant is more or less Php 13,400
inclusive of COLA, Uniform allowance, Incentive Pay, Night Differential (if
any), Additional Time, as reflected in his latest payslips.

5. Sometime in 2015, the Complainant was assigned in the Bureau of

Internal Revenue (BIR) NOB Security Detachment in Agham Road,
Diliman, Quezon City.

6. On April 2016, Complainant and his co- security guards were told by the
Respondent that their contract with their client BIR was no longer
renewed and thus were told to wait for their next assignment or posting.
Thereafter, Complainant made follow- ups in the Respondents office
regarding his next assignment or posting however was told by the officer-
in- charge to wait and in fact in some instances told that he was already
unqualified for whatever reasons to be assigned to some posts/ or of
because of clients preference.

7. The Complainant was not given any monthly pay by the Respondent
starting from his last assignment or duty (April up to this date).

8. Disappointed with the Respondents response on his wish to finally be

given another post/ duty, complainant filed the instant complaint before
this Honorable Office on February 14, 2017.
 Page 3 of 8

9. On February 20 and 22, 2017, a mandatory conciliation and mediation

conferences were held but no settlement was reached, although the
Respondent through its representative/ counsel offered by way of
settlement an amount of more or less Php100,000. The Complainant
however requested to be reinstated. As a consequence, this Honorable
Office issued an order directing the parties to submit their respective
position paper.

Hence, this position paper.

ISSUES

1. WHETHER OR NOT THE COMPLAINANT WAS ILLEGALLY DISMISSED.

2. WHETHER OR NOT COMPLAINANT REINSTATEMENT CAN STILL BE

ADJUDGED UNDER THE FOREGOING CIRCUMSTANCES, OR IN LIEU OF
REINSTATEMENT, COMPLAINANT IS ENTITLED TO SEPARATION PAY, 13TH
MONTH PAY FOR THE YEAR 2016, SERVICE INCENTIVE LEAVE PAY,
HOLIDAY PAY, OVERTIME/ NIGHT DIFFERENTIAL PAY, UNIFORM
ALLOWANCE, BACKWAGES AND OTHER BENEFITS MANDATED BY LAW.

3. WHETHER OR NOT, THE RESPONDENT IS LIABLE TO THE COMPLAINANT

FOR NOMINAL, EXEMPLARY AND MORAL DAMAGES.

DISCUSSIONS / ARGUMENTS

FIRST ISSUE: (ILLEGAL DISMISSAL)

From the foregoing facts, the dismissal of the complainant was illegal thus
he should be paid of his backwages, and further to be reinstated to his
former position or assigned as a security guard, without loss of seniority
rights or other benefits. If reinstatement is no longer feasible that payment
of separation pay is awarded as provided by law. The Respondent was put
on a Floating Status for a period exceeding six (6) months. The "floating
status" of such an employee should last only for a reasonable time. As in the
case of PHESCHEM Industrial Corporation v. Pablito V. Moldez (G.R. Nos.
161158, May 9, 2005) where in this case, respondent labor arbiter correctly
held that when the "floating status" of said employees lasts for more than
six (6) months, they may be considered to have been illegally dismissed from
 Page 4 of 8

the service. Thus, they are entitled to reinstatement or the corresponding

benefits for their separation.

Further in Exocet Security v. Armando D. Serrano. (G.R. 198538, Sept. 29,

2014), states that, A floating status requires the dire exigency of the
employers bona fide suspension of operation, business or undertaking. In
security services, this happens when the clients that do not renew their
contracts with a security agency are more than those that do and the new
ones that the agency gets. However, in the case at bar, the Agency was
awarded a new contract by its Client. There was no surplus of security guards
over available assignments. If there were, it was because the Agency hired
new security guards. Thus, there was no suspension of operation, business
or undertaking, bona fide or not, that would have justified placing the
complainants off-detail and making them wait for a period of six months. If
indeed they were merely transferred, there would have been no need to
make them wait for six months. The only logical conclusion from the
foregoing discussion is that the Agency illegally dismissed the complainants.

In all indications, the Respondent has no reason not to give another duty
or position to the Complainant for a period exceeding six (6) months. The
Respondent in fact continues its operation and hire new Security Guards and
have posted them all over their clients here in Metro Manila and the rest of
the country. The Respondent has so many clients in the country. Thus,
constructive dismissal is glaring in this instant case.

SECOND ISSUE: REINSTATEMENT CAN STILL BE ADJUDGED, OR IN LIEU OF

REINSTATEMENT, COMPLAINANT IS ENTITLED TO SEPARATION PAY.

In the case of Gold City Integrated Port Service, Inc. v. NLRC, et al, 245
SCRA 627 (1995), Reinstatement is the restoration to a state or condition
from which one had been removed or separated. In providing foremost for
the reinstatement of an illegally dismissed employee, the Labor Code not
only recognizes the security of tenure granted by law to regular employees,
but also gives substance and meaning to the protection accorded by the
Constitution to labor. Employment is significant to every working man. It is
how he sustains himself and his family, hence, the law mandates the
reinstatement of an illegally dismissed employee to his former position. In
addition as in the case of Pantranco North Express, Inc. v. NLRC, 252 SCRA
237 (1996) Payment of separation pay as a substitute for reinstatement is
allowed only under exceptional circumstances, viz: (1) when reasons exist
which are not attributable to the fault or beyond the control of the employer,
such as, when the employer, who is in severe financial strait and has suffered
serious business losses, has ceased operations, implemented retrenchment,
or abolished the position due to the installation of labor-saving devices; (2)
 Page 5 of 8

when the illegally dismissed employee has contracted a disease and his
reinstatement will endanger the safety of his co-employees; or, (3) where
strained relationship exists between the employer and the dismissed
employee.

The circumstances in the case at bar do no warrant the award of

separation pay to complainant in lieu of reinstatement to his former duties.
The complaint for damages filed by complainant against respondent, does
not by itself justify the non-reinstatement of respondent due to the alleged
antagonism engendered by the complaint. Hence, the existence of strained
relations between the parties is not clearly established. In the case of Procter
and Gamble Philippines v. Bondesto, GR. No. 139847, (March 5, 2004) The
SC have ruled that the doctrine of "strained relations" cannot be used
recklessly or applied loosely to deprive an illegally dismissed employee of his
means of livelihood and deny him reinstatement. While the Court
acknowledges that, in the natural course of events, a certain degree of
hostility is engendered by litigation, it will not by itself constitute sufficient
proof of the existence of strained relations to rule out the possibility of
reinstatement.

However, if reinstatement is no longer feasible then in lieu of

reinstatement separation pay and other benefits as mandated by the law is
to be awarded. As to the entitlement of 13th Month pay, service incentive
leave pay, holiday pay premiums, overtime/ night differential pay, uniform
allowance and other benefits mandated by law, the Complainant believes
that he is entitled to the same just like all other regular employees and as
guaranteed by the Labor Code of the Philippines. The complainant because
of the illegal dismissal was deprived of his 13th Month pay, service
incentive leave pay, holiday pay premiums, overtime/ night differential pay,
uniform allowance and other benefits.

Following the case of Sentinel Security Agency, Inc. vs. NLRC, et.al. (G.R.
122468, Sept. 3, 1998) when however, reinstatement is no longer feasible
in this case. The Agency cannot reassign them to the Client, as the former
has recruited new security guards; the complainants, on the other hand,
refuse to accept other assignments. Thus, separation pay is awarded in lieu
of reinstatement.

The Complainant is entitled to separation pay as affirmed by the Supreme

Court in the case of Agro Commercial v. NLRC GR. No. 82823-24 (1989), as
well as the case of Sentinel Security Agency, stated above, thus, when the
labor arbiter rendered his decision, he considered those who have been out
of work or "floating status" for a period exceeding six (6) months to have
been terminated from the service without just cause thus entitling them to
 Page 6 of 8

the corresponding benefits for such separation. Thus, pursuant to Article

283 of the Labor Code the Complainant is entitled to his separation pay
equivalent to one (1) month pay for every year of service.

The Complainant because of his illegal dismissal is entitled to backwages,

the Supreme Court pronounced in Philippine Industrial Security Agency Corp.
vs. Dapiton (377 Phil. 951, 966 (1999), that the backwages had to be paid
by the employer as part of the price or penalty he had to pay for illegally
dismissing his employee. It was to be computed from the time of the
employees illegal dismissal up to the time of his reinstatement.

THIRD ISSUE: (NOMINAL, EXEMPLARY AND MORAL DAMAGES)

Cleary, the Respondent violated the statutory right of the herein

complainant. In a case like this, the proper award is nominal damages under
the Civil Code as it is aimed to vindicate the right to procedural due process
violated by the employer. In the case of Jenny Agabon and Virgilio Agabon
vs. NLRC (G.R. No. 158693, November 17, 2004), for lack of statutory due
process, the employer was ordered to indemnify the employee for the
violation of his statutory right which warrants the indemnity in the form of
nominal damages.

The herein Complainant is entitled to moral damages because the

dismissal of the complainant was attended by bad faith of constitutive of an
act oppressive to labor. In the case of Lim vs. National Labor Relations
Commission (G.R. No. 79907, March 16, 1989), 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.

In the instant case, there is no other plausible explanation for the acts (or
its conspicuous absence) of the Respondent of the manner wherein the
Complainant was deprived of his employment except bad faith. There are
clearly abusive conduct of the Respondent and an attempt to exploit the
socio-economic standing of its employees/ workers. This is oppressive thus
warrants Exemplary Damages for the Complainant by way of example or
correction for the public good.

Furthermore, as the Complainant suffered mental anguish, serious

anxiety, besmirched reputation, and social humiliation because of the
Respondents unreasonable acts and because the former has to face financial
uncertainty caused by this Legal Action a claim for Moral Damages therefore
is in order.
 Page 7 of 8

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Labor Arbiter that a decision in this case be now rendered in
favor of the complainant as follows:

1. Declaring the act of the herein Respondent as constituting illegal

dismissal.

2. Ordering Respondent to reinstate the complainant to his former

position or given an assigned post without loss of seniority rights or
other benefits, or to pay unto the Complainant separation pay of 1
(one) Month salary for every year of service, 13th month pay for the
year service incentive leave pay, holiday pay, overtime/ night
differential pay, uniform allowance, backwages, and other benefits
mandated by law.

4. Furthermore, it is likewise prayed unto the Honorable Labor Arbiter

to order the Respondent to pay the herein Complainant the amount
of Php10,000 as nominal damages, Php100,000 as moral damages
and the amount of Php50, 000 as exemplary damages.

5. Such other reliefs just and equitable under the premises are also
prayed for.

MOST RESPECTFULLY SUBMITTED.

Quezon City, Metro Manila, March 14, 2017.

 Page 8 of 8

OFFICE OF THE LEGAL AID

Polytechnic University of the Philippines
Sta. Mesa, Manila, Metro Manila
Counsel for Complainant

By:

_______________________________________
Roll of Attorneys No. ___________
IBP No. ___________; __/__/__; ____________
PTR No. ___________; __/__/__; ____________
MCLE Compliance No. _____________: __/__/__
Email Address: ____________________________
Tel. / Cel. Nos. : ___________ / _______________

Signing under Law Student Practice Rule

(Pursuant to Rule 138-A of the Revised Rules of Court)

By:

Ed Al Renzi B. Salles
Office of the Legal Aid
Polytechnic University of the Philippines
Sta. Mesa, Manila, Metro Manila
Email Address: clear.salles@y7mail.com
Tel. / Cel. Nos. : 0920 972 9466 / 0917 885 4782
 VERIFICATION and CERTIFICATION

I, JOHN PAUL S. OCAMPO, of legal age, married, Filipino and with

residential address at Justice Ramon Jabson St., Malinao R., Pasig City,
after having been duly sworn to in accordance with law, hereby depose
and state that:

I am the complainant in the above-entitled case; I have caused the

preparation of the foregoing complaint and I have read the same and
the contents of which are true and correct of my own personal
knowledge and belief.

Furthermore, in compliance with the Rules of Court, I hereby certify

that I have not commenced any other action or proceedings involving
the same issues in the Supreme Court, the Court of Appeals, or
different divisions thereof, or any other tribunal or agency; and that
to the best of my knowledge, no such action or proceeding is pending
in the Supreme Court, the Court of Appeals, or any other tribunal or
agency. If I learn that a similar action or proceeding has been filed or
is pending before the Supreme Court, the Court of Appeals, or any
other tribunal or agency, I shall notify the court, tribunal or agency
within five (5) days from notice.

IN WITNESS, WHEREOF, I hereunto affix my signature this 14th day of

March, 2017

JOHN PAUL S. OCAMPO

Complainant

SUBSCRIBED AND SWORN to before me this ___ day of March, 2017 the
affiant has personally appeared before me and exhibiting to me his
_________________ issued at ________________ on ______________
as his competent evidence of identity.

I am satisfied that the complainant read and understands his verification

and certification.

NOTARY PUBLIC

Doc. No. ;
Page. No. ;
Book. No.;
Series of 20__.
COPY FURNISHED:

SECURE SECURITY AGENCY, INC.

389 Quezon Ave, Corner West 6th Street,
Diliman, Quezon City, Metro Manila.
P.O. Registry Receipt No. ____________
Dated __/__/ ____

Atty. Garri C. Marundan,

Counsel of Respondent
2nd Floor APL Building, United Nations Avenue
Corner San Marcelino St., Paco, Manila
P.O. Registry Receipt No. ____________
Dated __/__/ ____

EXPLANATION

Due to distance, time and other constraints to effect personal service

and filling, copies of the foregoing Position Paper is being served on.
Respondent and counsel for respondent by LBC Delivery with tracking
number 139336478750 transacted on March 14, 2017.

Signing under Law Student Practice Rule

(Pursuant to Rule 138-A of the Revised Rules of Court)

By:

Ed Al Renzi B. Salles
Office of the Legal Aid
Polytechnic University of the Philippines
Sta. Mesa, Manila, Metro Manila
Email Address: clear.salles@y7mail.com
Tel. / Cel. Nos. : 0920 972 9466 / 0917 885 4782
Republic of the Philippines)
Manila City) S.S.
X---------------------------------X

AFFIDAVIT OF SERVICE

I, Ed Al Renzi B. Salles, single, Filipino, of legal age and with residential

address at Lot 17 Blk 24 KABISIG San Andres, Cainta, Rizal, hereby depose
and state that:

1. I am a practicing law student under the Office of the Legal Aid of the
Polytechnic University of the Philippines, located at Sta. Mesa,
Manila, Metro Manila.

2. Due to the distance, time and other constraints to effect personal

service and filling of copies of the foregoing documents is being
served on the Respondent and Counsel of the Respondent through
LBC Delivery with tracking number 139336478750 transacted on
March 14, 2017.

3. I served two (2) copies of Position paper, pending before the National
Labor Relations Commission of the labor case for the following
parties as follows:

a. The respondent agency, Secure Security Agency, Inc. with

office address at 389 Quezon Ave, Corner West 6th Street,
Diliman, Quezon City, Metro Manila.

b. The counsel of respondent agency, Atty. Garri C. Marundan,

with office address at 2nd Floor APL Building, United Nations
Avenue Corner San Marcelino St., Paco, Manila.

4. I am executing this affidavit to attest the truth of the foregoing.

IN WITNESS, WHEREOF, I hereunto affix my signature this 14th day of

March, 2017.

Signing under Law Student Practice Rule

Ed Al Renzi B. Salles
SUBSCRIBED AND SWORN to before me this ___ day of March, 2017 the
affiant has personally appeared before me and exhibiting to me his
_________________ issued at ________________ on ______________
as his competent evidence of identity.

I am satisfied that the complainant read and understands his verification

and certification.

NOTARY PUBLIC

Doc. No. ;
Page. No. ;
Book. No.;
Series of 200_.