REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
PPSTA BLDG., BANAWE AVE., QUEZON CITY

OFFICE OF LABOR ARBITER x x x

ROOM 311, 3RD FLOOR, PPSTA BLDG.

X x x x,
Complainant,
NLRC RAB NCR
- Versus - CASE NO. NCR-
X x x.
X x x , INC.
X x x; AND
X x x,
Respondents.
x-------------------------------------------------------x

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

The COMPLAINANT, pro se, respectfully states:

I. STATEMENT OF FACTS

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

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

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

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

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

3. His position in the company was xxx Supervisor.

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

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

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

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

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

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

· Annex “A” - EMPLOYMENT OFFER, dated November

23, 2012;
· Annex “B” – COMPUTATION OF ANNUAL INCOME
AND WITHHOLDING TAX AS OF THE YEAR 2015.

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

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

10. The complainant was a regular employee of the respondent company when he was
terminated on May 8, 2015 having served it for more than one year as of that date.

11. He was imposed the following penalties for TARDINESS:

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

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

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

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

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

(b) On May 7-9, 2014 he was SUSPENDED FOR THREE DAYS. He had misplace his copy now of the
suspension order.
© On July 13-18, 2014 he was SUSPENDED FOR SIX DAYS. He had misplace his copy now of the suspension
order. Some of his tardiness before such suspension were caused by the street blockage due to the on-
going construction and/or improvement of the road where the Casino was located.

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

After his six-day suspension on July 13-18, 2014, he recall that he was late only once, i.e., January 15,
2015.
On May 8, 2015 at about 2:00 PM to 4:00 PM the complainant was ABRUPTLY AND VERBALLY DISMISSED
FROM EMPLOYMENT by the respondent Xxx Xxx in the presence of his immediate superior xxx xxx (xxx
Manager) inside the room of Xxx Xxx.

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

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

He was sequestered by Xxx Xxx inside her room.

He was threatened and forced by Xxx Xxx to IMMEDIATELY RESIGN. Otherwise, she would TERMINATE him
(that would surely affect his future employments in other entities, if any).

No prior notice to explain was issued to him.

No formal charge was filed against him.

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

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

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

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

For two hours he was forced to stay inside the room of the respondent Xxx Xxx and/or within its
immediate premises inside the HR area near the room od Xxx Xxx. He was treated like a prisoner.

Inside the room of respondent Xxx Xxx he begged her for three days to think about the former’s order for
him to issue immediately on the spot a handwritten resignation letter.

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

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

He was not allowed to go to the toilet.

He was not allowed to call up a lawyer.

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

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

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

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

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

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

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

13. RECEIVABLE SALARIES AND OTHE REMPLOYEE BENEFITS

The receivable salaries and other employee benefits of the complainant as of May 8, 2015 (date of illegal
termination) were as follows:

· Salaries for three days - P9,826.03;

· Unclaimed leave credits good for 4.5 days - P14,739.05;
· Service charge - April 2014 - P1,210.32;
· Service charge - May 2014 - P2,993.13;
· Refundable income tax - P25,189.07.

The total of the foregoing items was P53,357.60.

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

· Phase 1A bonus - P30,889.11; and

· Loyalty bonus = P57,528.00.

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

(Refer to Annex “B”, supra).

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

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

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

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

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

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

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

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

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

5, 2016.
· Annex “F” - MINUTES OF CONFERENCE, dated
October 19, 2016; and
· Annex “G” - REFFERAL, dated October 26, 2016.

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

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

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

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

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

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

See Annex “J” – LETTER of the complainant duly received by HR-CompenBen Staff Jerson Balandra on
November 17, 2016.

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

22. His National Bureau of Investigation (NBI) Clearance (valid until September 21, 2017) is
attached as Annex “M” hereof to prove his good moral character.

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

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

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

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

To prove the foregoing statement, see the following annexes:

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

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

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

II. ISSUE

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

III. DISCUSSION

24. A copy of the relevant parts of the TMCGB (employees’ manual/handbook) is attached as
Annex “P” hereof with submarkings.

Article X of the TMCGB contains the DUE PROCESS PROCEDURE of the respondent company.

The respondents violated the provisions or steps described hereinbelow.

Step One refers to the Counselling Procedures:

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

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

Step Two refers to the procedures for Written Explanation:

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

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

Step Three refers to the procedures for FACT-FINDING BY IMMEDIATE SUPERVISOR (not by the Vice
President for Human Resource Department headed by respondent Xxx Xxx).

(a) The employee files the written explanation.

(b) The supervisor gathers the facts “with HRD assistance”.
(c) He makes the recommendations (presumably to the HR Dept. and to the employee).
(d) The employee is given an “AMPLE OPPORTUNITY TO BE HEARD” during the fact-finding exercise
by the supervisor.
(e) There shall be an ADMINISTRATIVE HEARING where the imposable penalty is DISMISSAL.
(f) The supervisor may do the fact-finding with the representative of the employee. (It
presupposes the employee must be notified of such a right).
(g) The supervisor then submits his recommendations to his next-level superior. He uses the
“Notice of Corrective Action” for the purpose.
(h) The next-level superior reviews the recommendation. He will forward his findings to the HR xxx
(i.e., respondent Xxx Xxx).
(i) The “HRA” evaluates the findings/recommendations.
(j) She endorses the same to the Department Head of the employee.
(k) The Department Head decides within twenty four hours from receipt of the
findings/recommendations.
(l) The MINUTES OF THE MEETINGS shall be duly signed and made available to all concerned
(presumably, including the employee) within twenty four hours.

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

Step Four refers to APPEAL PROCEDURE.

(a) Within 15 days from receipt of the Decision of the Department Head (not the respondent HR
Business Partner, Xxx Xxx) the employee may submit an APPEAL to the TEAM MEMBER BEHAVIOR ACTION
REVIEW PANEL (again, not the HR Business Partner, respondent Xxx Xxx).
(b) The said Panel is convened by the MANAGEMENT.
It is presumed that the foregoing proceedings are documented in the 201 File of the employee.

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

(a) The Department Head recommends the referral of the issue to the TEAM MEMBER BEHAVIOR
ACTION REVIEW PANEL.
(b) The referral is addressed to the HR Business Partner (respondent Xxx Xxx).
(c) The HR Business Partner convenes the Panel.
(d) The Panel shall be composed of the HR Business Partner as the presiding officer, the Division
Head as the deputy presiding officer, the Security Director, one Neutral Manager, and the Vice President
for Human Resource and Administration (HRA).
(e) The Panel shall be “duly constituted” in writing.
(f) It shall conduct a “thorough fact-finding”.
(g) It shall submit its recommendations within five working days from date of constitution.
(h) The legal/constitutional rights of the employee shall be respected during this whole process.
(i) If the penalty imposed on an employee with a rank lower than Director position is DISMISSAL, it
is subject to JOINT AUTOMATIC REVIEW by the Vice President for HRA and the Chief Operating Office
(COO).
(j) The Panel decides by consensus.
(k) The dissenting opinions within the Panel shall be in writing.

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

Article XI refers to the graduated scale of penalties from CORRECTIVE ACTION/DECISION, CORRECTIVE
COUNSELLING (CODE: CC), WRITTEN WARNING (CODE: WW), SUSPENSION (CODE: S), AND DISMISSAL
(CODE: D).
The graduated scale of the penalty of SUSPENSION ranges from THREE DAYS TO THIRTY DAYS.
DISMISSAL is the worst of all the penalties. It is xxxed to only after a “THOROUGH FACT-FINDING HAS BEEN
DONE.”
The TMCGB empowers the Department Head, Division Head, Vice President – Human Resources and
Administration (respondent Xxx Xxx), and xxx (respondent Xxx Xxx) to DISMISS an employee and a
supervisor.
This power presupposes the prior observance of the DUE PROCESS rules stipulated in the TMCGB, supra.
A written NOTICE OF CORRECTIVE ACTION shall be served on the employee.
Article XIV refers to the DOCUMENTATION of the disciplinary process. Complete reports are required. This
means the 201 File of the employee must be furnished copies of all relevant documents.
Article XV refers to the PRESCRIPTIVE PERIOD OF RECORD KEEPING.
The prescriptive period is two years for penalties of three to fifteen days suspension and three years for
penalties of sixteen to thirty days suspension. A subsequent deviation during the prescriptive period stops
the running of such prescriptive period for the preceding deviation. (This provision appears to be
unconstitutional for being violative of substantive due process and for being unreasonable). The running
of the new prescriptive period is based on the “latest deviation”. Habituality negates the effects of
prescription.
Article XVIII refers to SUMMARY PROCEEDING IN LIEU OF FACT FINDING.
Summary proceeding is INAPPLICABLE to cases where the imposable penalty is LESS THAN DISMISSAL. This
covers TARDINESS cases.
For purposes of PREVENTIVE SUSPENSION (which is irrelevant in this case), no fact-finding is needed (and
it may be immediately imposed) IF: “committed in the presence of two or more witnesses”; “deviation is
serious and evidence of guilt is strong”; employee is “convicted by final judgment” in any court; “multiple
offender”; and “notoriously undesirable or dangerous.”
ARTICLE XX refers to the TABLE OF OFFENSES AND PENALTIES.
Per Rule 15 (Tardiness, Undertime, Overtime and Breaks) of Part VI (PUNCTUALITY AND ATTENDANCE) of
Article XX of the TMCGB (Page 64) the penalties are as follows:
(a) Reporting for work late for three times corresponds to one violation.
(b) The “reckoning is PER CALENDAR BASIS”.
(c) For the first violation (three incidents of tardiness in one calendar year) the penalty is
CORRECTIVE COUNSELLING.
(d) For the second violation (six incidents of tardiness in one calendar year) the penalty is
WARNING.
(e) For the third violation (nine incidents of tardiness in one calendar year) the penalty is three days
suspension.
(f) For the fourth violation (twelve incidents of tardiness in one calendar year) the penalty is six
days suspension.
(g) For the fifth violation (fifteen incidents of tardiness in one calendar year) the penalty is twelve
days of suspension.
(h) For the sixth violation (eighteen incidents of tardiness in one calendar year) the penalty is thirty
days suspension.
(i) For the seventh violation (twenty one incidents of tardiness in one calendar year) the penalty is
DISMISSAL.

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

“x x x.

FIRST VIOLATION

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

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

The complainant he assumes it was a CORRECTIVE COUNSELLING penalty.

SECOND VIOLATION

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

THIRD VIOLATION

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

FOURTH VIOLATION

In March 2014 or thereabout he was SUSPENDED FOR SIX DAYS. He has no copy now of the document
showing such suspension.
NOTE: Some, if not many, of the TARDINESS of the complainant were caused by the heavy traffic due to
the prolonged CONSTRUCTION and/or IMPROVEMENT of the street where the xxx was located (with
cranes and heavy equipment on the road) and the long papal visit of POPE FRANCIS in early 2015.

ABRUPT DISMISSAL
On May 8, 2014 at about 2:00 PM to 4:00 PM the complainant was ABRUPTLY AND VERBALLY DISMISSED
FROM EMPLOYMENT by the respondent Xxx Xxx in the presence of his immediate superior xxx xxx (xxx
Shift Manager) inside the room of Xxx Xxx.

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

He was sequestered by Xxx Xxx inside her room.

He was threatened and forced by Xxx Xxx to IMMEDIATELY RESIGN. Otherwise, she would TERMINATE him
(that would surely affect his future employments in other entities, if any).

No prior notice to explain was issued to him.

No formal charge was filed against him.

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

X x x.”

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

“x x x.

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

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

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

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

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

“x x x.

ART. 279. Security of tenure. - In cases of regular employment, the employer shall not terminate the
services of an employee except for a just cause or when authorized by this Title.

An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other
benefits or their monetary equivalent computed from the time his compensation was withheld from him
up to the time of his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March 21,
1989).

X x x.”

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

“x x x.

ART. 282. Termination by employer. - An employer may terminate an employment for any of the following
causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or
representative in connection with his work;

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

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized
representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representatives; and

X x x.”

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

He is NOT GUILY of SERIOUS MISCONDUCT, GROSS AND HABITUAL NEGLECT, FRAUD OR WILLFUL BREACH
OF TRUST, OR COMMISSION OF A CRIME AGAINST THE EMPLOYER OR HIS FAMILY OR REPRESENTATIVES.

He did not deserve the supreme sanction of DISMISSAL (more so WITHOUT DUE PROCESS OF LAW).

30. In the case of CAPIN-CADIZ VS. BRENT HOSPITAL AND COLLEGE, GR 187417, February 24,
2016, it was held that a worker who was illegally dismissed is entitled to “entitled to reinstatement
without loss of seniority rights, and with payment of backwages computed from the time compensation
was withheld up to the date of actual reinstatement.”

“x x x.
Given the foregoing, Cadiz, therefore, is entitled to reinstatement without loss of seniority rights, and
payment of backwages computed from the time compensation was withheld up to the date of actual
reinstatement.

Where reinstatement is no longer viable as an option, separation pay should be awarded as an alternative
and as a form of financial assistance. 55

X x x.

Generally, the computation of backwages is reckoned from the date of illegal dismissal until actual
reinstatement. 59

In case separation pay is ordered in lieu of reinstatement or reinstatement is waived by the employee,
backwages is computed from the time of dismissal until the finality of the decision ordering separation
pay. 60

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

X x x.”

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

“x x x.

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

X x x.

In termination proceedings of employees, procedural due process consists of the twin requirements of
notice and hearing. The employer must furnish the employee with two written notices before the
termination of employment can be effected: (1) the first apprises the employee of the particular acts or
omissions for which his dismissal is sought; and (2) the second informs the employee of the employer’s
decision to dismiss him. The requirement of a hearing is complied with as long as there was an
opportunity to be heard, and not necessarily that an actual hearing was conducted.[14] As we explained in
Perez v. Philippine Telegraph and Telephone Company:[15]

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

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

X x x.”
IV. URGENT EX PARTE MOTION FOR PRODUCTION, INSPECTION AND EXAMINATION OF THE “201
FILE” (PERSONNEL FILE) OF THE COMPLAINANT IN THE POSSESSION OF THE RESPONDENTS.

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

V. MISCELLANEOUS

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

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

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

“x x x.

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

MABUHAY:

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

I am ready to file on November 29, 2016 at 10:00 AM my POSITION PAPER, without prejudice to the
revival of the Compromise Negotiation.

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

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

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

· Three months’ separation pay;

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

I hereby respectfully counter offer to the respondent, through the kind intercession of Atty. Xxx, the
following Compromise, subject to mutual negotiation:

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

· Release of my unpaid receivables amounting to Fifty Thousand Pesos (P50,000.00)
· Release of my Certificate of Employment (COE).
If Atty. Xxx is empowered to decide on my foregoing counter proposal during the next hearing on
November 29, 2016, I move that the simplified Compromise Agreement be written by the Labor Arbiter in
the Minutes of the Hearing on the said date.

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

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

VI. PRAYER

WHEREFORE, premises considered, it is respectfully prayed that judgment be issued declaring that the
complainant has been ILLEGALLY DISMISSED by the respondents.
FURTHER, it is respectfully prayed that the respondents be ordered to pay or issue to the complainant, as
the case may be:
(a) BACKWAGES from the date of his illegal dismissal on May 8, 2016 up to the time he is
REINSTATED to his former position without loss of seniority and other benefits.
(b) MORAL DAMAGES of P500,000.00.
(c) EXEMPLARY DAMAGES of P500,000.00.
(d) His RECEIVABLES representing salaries and other benefits due him in the amount of P61,166.99
as discussed in Paragraph 13, supra.
(e) Attorney’s fees of Ten Percent of Damages AWARDED.
(f) Unpaid 15-minute daily staff briefings for two and one-half years (January 7, 2013 to May 8,
2015).
(g) His CERTIFICATE OF EMPLOYMENT whether or not he is reinstated.
FINALLY, the complainants respectfully pays for such and other reliefs as may be deemed just and
equitable in the premises.
Xxx City, November 26, 2016.

MR. XXX XXX

Complainant
Address: x x x.

SUBSCRIBED AND SWORN TO BEFORE ME in xxx City on November 28, 2016, affiant showing his
competent proof of identity as follows: LTO Driver’s License No. x x x.

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

Copy Furnished:

Atty. Xxx Xxx

Counsel for Respondents
(To be personally given during the
hearing on November 29, 2016 at 10:000 AM)
 VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

I, _______________________, of legal age, after having been duly sworn in accordance

with law, depose and state that:

1. I am a plaintiff in the above-stated case;

2. I caused the preparation of the foregoing complaint;

3. I have read the contents thereof and the facts stated therein are true and correct of my
personal knowledge and/or on the basis of copies of documents and records in my
possession;

4. I have not commenced any other action or proceeding involving the same issues in the
Supreme Court, the Court of Appeals, or any other tribunal or agency;

5. To the best of my knowledge and belief, no such action or proceeding is pending in the
Supreme Court, the Court of Appeals, or any other tribunal or agency;

6. If I should thereafter 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
undertake to report that fact within five (5) days therefrom to this Honorable Court.

___________________________

Affiant

SUBSCRIBED AND SWORN to before me this ___ day of __________ 200_ at

_________________ affiant exhibiting to me his Community Tax Certificate
No.____________________ issued on ________________ 200_ at ______________ City.

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

Republic of the Philippines

MUNICIPAL TRIAL COURT

7TH JUDICIAL REGION

BRANCH 8

Cebu City
THE PEOPLE OF THE PHILIPPINES,

Complainant,

CRIM. CASE NO.M-CEB-15-123-CR

FOR: THEFT

MARK GAVIOLA,

Accused.

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

JUDICIAL AFFIDAVIT

PRIVATE COMPLAINANT, ATTY. JESPHUP GAVIOLASKI, by and through the

undersigned counsel, most respectfully submit this Judicial Affidavit and states, that-

PRELIMINARY STATEMENT

The person examining me is ATTY. RUBY KIMBERLY C. LIBARIOS with office address
at Number 88 Deathstar Street, Talamban, Cebu City, Philippines. This judicial affidavit is
being taken at the office of Atty. Ruby Kimberly C. Libarios. Witness gave his answers
voluntarily in response to the questions propounded by said counsel, without coaching
from any person. Witness further affirms that he is fully aware that he is declaring his
answers under oath, that any falsehood in his answers can subject him to criminal liability
for false testimony and perjury.

OFFER OF TESTIMONY
The testimony of the witness is being offered to substantiate and prove the allegations
contained in the Information in the case of People vs. Mark Gaviola, docketed as Criminal
Case Number M-CEB-12-123-CR, to prove that the Accused, willfully and deliberately (1)
took money, (2) that the money taken belonged to the complainant, (3) that the taking
was done with intent to gain; (4) that the taking was done without the consent of the
owner, herein complainant; and (5) that the taking was accomplished without the use of
violence against or intimidation of persons or force upon things.

DIRECT EXAMINATION PROPER

Q01: Mister Witness, will you please tell the Honorable Court your name, age, and other
personal circumstances.

A01: I am ATTY. JESPHUP GAVIOLASKI (herein referred as Complainant for brevity),

of legal age, single, and currently working as a lawyer in Gaviolaski and Padawan Law Firm
located at 123 Planet Naboo, Lahug, Cebu City. I am one of the Senior Partners.

Q02: Do you know a certain Mark Gaviola?

A02: I know Accused Mark Gaviola (hereinafter referred to as the Accused for
brevity), who is of legal age, and a resident of 14 ObiWan Subdivision, Mandaue City,
Cebu, Philippines.

Q03: How do you know the Accused?

A03: I personally know the Accused as he is employed as the secretary of my law

firm.

Q04: What are the responsibilities of the Accused as a secretary in your law firm?
A04: The responsibilities of the accused would be copy typing, letter writing, dealing with
telephone and email inquiries, creating and maintaining a filing system, scheduling and
attending meetings, creating agendas and taking minutes of the meetings, and arranging
appointments, among others.

Q05: When was the Accused employed to work in your law firm?

AO5: He started last September 01, 2000.

Q06: What were the requirements required of him before employment?

A06: I have requested that he submit the following: NBI Clearance, Barangay
Clearance, Police Clearance, Employment and Exit Clearance plus a Certificate of Good
Moral Character from his former employer.

Q07: How much was the Accused’s monthly salary?

A07: His salary was P15,000 per month.

Q08: What time does he usually clock in and out of the office?

A08: He is usually at the office by 7:40am and clocks out by 6pm. His last month’s
punch card is marked as Exhibit “A”.

Q09: Since the Accused was employed as your firm’s secretary, in what areas of
the office did he have access to?

A09: Aside from his assigned table, the pantry and other common areas, he has
access to the drawers, vault, and even the cabinets of my office. He also has a copy of the
office keys since he is assigned to open the office during the morning.
 Q10: Mr. Witness, since you mentioned that your office has drawers, a vault, and
cabinets, may I know what is inside these compartments?

A10: I place in the drawer my personal petty cash. In the vault, I place my land
titles and stock certificates, and other personal documents. And as for the cabinets, this is
where I store my law books. It is only him and me who have access to my office since there
is an ID security scanner.

Q11: You have mentioned, that you store petty cash in your drawer, why is this so?

A11: The petty cash is used for my daily expenses ranging from meals, pocket
money, tips, parking, and other miscellaneous expenses that I need for the week.

Q12: How much is this weekly petty cash?

A12: It would really vary. Sometimes it would be five thousand pesos, sometimes,
up to fifty thousand pesos. It would depend on the activities that I might do for the week.

Q13: Mr. Witness, that is quite a big amount. Do you have any security in your law
firm so as to address if this kind of money gets lost?

A13: Yes, we have agreed amongst our partners that we would install a Closed
Circuit Television (CCTV) so as to monitor the movements of all employees and the people
coming in and out of the law firm.

Q14: How many cameras are there?

A14: There are eight (8) cameras.

Q15: Where are these CCTVs located?

A15: The following are the locations of the CCTV:

1. Camera 1- Office Lobby

2. Camera 2-Library

3. Camera 3- Pantry
4. Camera 4- Library

5. Camera 5- Atty. Darth Vader’s office

6. Camera 6- Atty. Jesphup Gaviolaski’s office

7. Camera 7- Office Hallway

8. Camera 8- Administrative Office

Q16: Who monitors the CCTV?

A16: We have outsourced a security company, named Yoda Green Securities, who
monitors the feeds of the cameras. They gave us sealed reports every week.

Q17: What did Yoda Green Securities report on January 16, 2017?

A17: The report indicated “A certain individual was recorded to have appeared
taking wads of money from the drawer of Atty. Jesphup Gaviolaski at exactly January 12,
2017 at 8:01 in the morning. Said act was finished by 8:13. This was captured in Camera 6.
A CD containing a copy of such footage is enclosed within this report.” The Head of
Security, Diego G. Luna, signed it. The report is marked as Exhibit “B”, and the cd
containing the footage is marked as “Exhibit C”.

Q18: What did you do afterwards?

A18: After I viewed the CD, I went directly to my drawer and saw that my petty
cash was indeed gone. Thereafter I called Yoda Green Securities to schedule an
appointment. I wanted to watch the original footage. I was able to go there immediately
and saw the original copy.

Q19: What did you see in the footage?

A19: I saw the Accused entering the office and headed directly to my desk. He
opened the drawer where my petty cash is, and extracted the bills. He placed the bills
inside a pouch.
 Q20: How did you know that it was the accused?

A20: I know him personally for 17 years, I know how he looks like plus he was
wearing his favorite Hawaiian themed polo.

Q21: When did the taking happen?

A21: It was on January 12, 2017, at 8:01 in the morning.

Q22: On January 12, 2017, what time did the Accused clocked in the office?

A22: At exactly 7:40 a.m.. He was the only one in the office during that time. His
punch card for that week is marked as Exhibit “D”.

Q23: How much was taken?

A23: The amount was roughly P20, 000.00. I was going to use it for the IBP Golf
Tournament for the week in Tagaytay.

Q24: Knowing that it was the Accused who was in the feed, did you talk with him regarding
the matter?

A24: Yes, I did talk privately with him in my office. He denied everything. I did not
show him the video so as to avoid any altercation.

Q25: Given that he has denied the same, what did you do next?

A25: I reported the matter to the police and showed the CCTV video. Thereafter,
the police went to the office and invited the accused for questioning.

Q26: What did the Accused do?

 A26: Upon seeing the police, he ran out of the office. The policemen chased him
and soon caught up with the Accused at the third block. They arrested him and brought
him to jail.

Q27: Do you think that Accused committed a crime?

A27: Yes. He took my personal petty cash, without asking my permission and with
intent to gain.

Q28: Why do you now come before this Court?

A28: I come before this Honorable Court to attest to the truth of all the foregoing
and for purposes of testifying against the Accused for violation of Article 308 of the
Revised Penal Code.

I hereby warrant that all documents marked as exhibits and referred to in my

foregoing answers are true, correct and faithful reproductions of the original.

IN WITNESS WHEREOF, I have hereunto set my hand this 28th day of January 2017 at Cebu
City.

JESPHUP GAVIOLASKI

Affiant
SUBSCRIBED AND SWORN TO BEFORE ME, a notary public in and for the City of Cebu, this
29th day of January 29, 2017. Affiant personally came and appeared with his Driver’s
License 124567 issued by the Land Transportation Office, bearing his photograph and
signature, known to me as the same person who personally signed the foregoing
instrument before me and avowed under penalty of law to the whole truth of the contents
of said instrument.

Doc. No. 51

Page No. 5

Book No. 10

Series of 2017

ATTY. JABBA D. HUTT

Notary Public

Commission Serial No. 1854

Notary Public for Cebu City

Until December 31, 2017

Office: No. 76 Planets,

Storm Trooper Business District,

Cebu City

Roll No. 12345

IBP Lifetime Roll No.

123456; 11/11/2016; Cebu

PTR No. 123456; 11/12/2016; Cebu

(Motion to Dismiss)
(CAPTION)
MOTION TO DISMISS
COMES NOW the Respondent, _____________ Inc., through the
undersigned counsel, appearing especially and solely for this purpose,
and to this Honorable Court, most respectfully moves for the dismissal
of the Complaint on the following ground that THE HONORABLE COURT
HAS NOT ACQUIRED JURISDICTION OVER THE PERSON OF THE
DEFENDING PARTY.

DISCUSSION
A cursory reading of the Summons and Return of Service would readily
show that the copies of the Summons dated 08 May 2001 and the
Complaint and its corresponding annexes were allegedly delivered and
tendered upon the Movant _____________ INC. through a certain
Maria Clara alleged to be the authorized personnel of Movant
_____________ INC., Bacolod City on 29 August 2001. Copies of the
said Summons and Return of Service that form part of the records on
the case are hereto pleaded as integral part of this Motion;

Said service of Summons, however, constitutes an improper service of

summons amounting to lack of jurisdiction over the person of the
herein Movant Corporation _____________ INC. since the summons
was improperly served upon a person who is not one of those persons
named or enumerated in Section 11, Rule 14 of the 1997 Rules of Civil
Procedure upon whom service of summons shall be made;
The material provision on the service of summons provided for in
Section 11 of Rule 14 of the 1997 Rules of Civil Procedure reads as
follows:

"Section 11. Service upon domestic private juridical entity.- When the
defendant is a corporation, partnership or association organized under
the laws of the Philippines with a juridical personality, service may be
made on the president, managing partner, general manager, corporate
secretary, treasurer, or in-house counsel" (underscoring ours)

It bears no further emphasis that the service of the summons was

done on a person who is not included in the exclusive enumeration
provided for under the said Section, as service was done only on an
alleged authorized personnel of the Movant Corporation;

This new revision of the Rules of Court for the service of summon is a
clear departure from the old rule as stated in Section 13, Rule 14 of
the Rules of Court which provided that:

"SECTION 13.Service upon private domestic corporation or

partnership. - If the defendant is a corporation organized under the
laws of the Philippines or a partnership duly registered, service may be
made on the president, manager, secretary, cashier, agent, or any of
its directors."

It must be equally noted that the changes in the new rules are
substantial and not just general semantics as the new rules restricted
the service of summons on persons clearly enumerated therein. In
effect, the new provision makes it more specific and clear such that in
the case of the word "manager", it was made more precise and
changed to "general manager", "secretary" to "corporate secretary",
and excluding therefrom agent and director;

The designation of persons or officers who are authorized to accept

summons for a domestic corporation or partnership is under the new
rules, limited and more clearly specified, departure from which is fatal
to the validity of the service of the summons and resulting in the
failure of the court to acquire jurisdiction over the person of the
respondent corporation.

PRAYER
WHEREFORE, it is respectfully prayed that the Complaint with respect
to the Movant Corporation be dismissed for lack of jurisdiction over the
person of the defendant.

Other reliefs just and equitable are likewise prayed for.

 _____________, Philippines, __Date__.

(COUNSEL)

(NOTICE OF HEARING)

(EXPLANATION)

COPY FURNISHED:

OPPOSING COUNSEL

REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE

OFFICE OF THE PROSECUTOR

MANILA