Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region Arbitration Branch
Quezon City

JOY C. PALCON, AND NLRC CASE No.

DAVID L. ESPINO, NCR-08-00963-19

Complainants,

- versus –

SUTHERLAND GLOBAL SERVICES PHILIPPINES INC.,

DILIP VELLODI, AND ANGEMHEL CASTRO.

Respondents.
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REPLY FOR
THE COMPLAINANT

The COMPLAINANTS, pro se, most respectfully states:

I. THE COMPLAINANTS WERE ILLEGALLY TERMINATED BY WAY OF

CONSTRUCTIVE DISMISSAL BY THE RESPONDENTS.

1. It is useful to review and reiterate the ultimate facts, as discussed in the Position
Paper of the complainants, proving the ILLEGAL TERMINATION of the
complainants by way of constructive dismissal as committed by the respondents.

(a) On April 28, 2019, or on the last day of Intuit QuickBooks account operation,
complainants were issued by the corporate respondent’s Human Resources
department, Redeployment notices, informing them of their being put in a
“floating status” citing business exigencies brought about by the client pull-
out resulting to an alleged suspension of portion of the business operations of
the corporate respondent, as herein evidenced by Annex “C” –
Redeployment Notice for Joy C. Palcon, and Annex “D” – Redeployment
Notice for David L. Espino.

(b) Complainants were also told to report to the corporate respondent’s office
every 15th and 30th of each month while complainants were still on floating
status. Furthermore, as complainants attendance during the 15 th and 30th of
each month that complainants were required to report to the corporate
respondent’s office were unpaid, complainants were instructed to file and
 utilize their leaves to compensate for their lack of salary during the period
that complainants were in a floating status.

(c) On April 29, 2019, complainant Joy C. Palcon started working for corporate
respondent’s temporary account FTD, for three (3) weeks or up to May 20,
2019. Meanwhile, complainant David L. Espino also started working for
corporate respondent’s temporary account Petco, from April 29, 2019 up to
July 1, 2019.

(d) From that time onwards, complainants have repeatedly followed up on the
status of their employment and reported to the corporate respondent’s office
every 15th and 30th, even though respondent Ms. Angemhel Castro have told
them that reporting to the said premises was no longer necessary, so long as
complainants will be available when called upon for either an interview or
assessment.

(e) Complainants, desperate to return to work and earn a decent salary, went
thru the rigors of going to the corporate respondent’s office at 8:00 PM and
wait two to three hours before being attended to by respondent Ms.
Angemhel Castro. Aggravating this situation is that the complainants had to
repeatedly request from the same respondent Ms. Angemhel Castro to
activate complainants company log-ins which the corporate respondent have
deactivated when the complainants were put on floating status.

(f) Because of complainants constructive dismissal from their jobs, the

complainants were forced to borrow money from their friends, secure loans
from local government agencies, and bank/credit card companies in order to
support their family and to make both ends meet, as evidenced by Annex “E”
– Promissory Note For Joy C. Palcon, Annex “F” – Credit Card Statements of
Accounts for Joy C. Palcon, Annex “G” – Promissory Note for David L. Espino,
and Annex “H” – Loan Receipts for David L. Espino.

(g) Complainants continues to suffer financial difficulties as they are the ones
supporting their families. Their family life and psychological well-being as a
family have been terribly traumatized, tortured, disturbed, inconvenienced,
and shamed to this very day.

2. An in-depth discussion of the respondent’s position paper, will help this

Honourable Office to appreciate the facts of this case.

(a) The complainant respectfully calls the attention of the Honourable Arbiter to
page 4, paragraph 14 in the respondent’s position paper, to wit:

“ Eventually, on 20 May 2019, or the day of Joy’s temporary assignment in

FTD ended, Sutherland Philippines has to suspend a portion of the business
operations of Intuit GBD PH (Joy’s program prior to her temporary assignment
to FTD).“

And on page 4, paragraph 15:

“ The Company issued a Notice of Redeployment dated 20 May 2019,
informing Joy that:

a. Due to reduction of transaction/call volumes, and/or immediate client pull-

out, leading to excess staffing and superfluous positions, Sutherland
Philippines has suspended a portion of the business operations in Intuit
GBD PH.”

While on page 8, paragraph 21, the respondents stated:

“ However, due to reduction of transaction/call volumes, and/or immediate

client pull-out, leading to excess staffing and superfluous positions, Sutherland
Philippines has suspended a portion of the business operations in Petco. On 25
June 2019, the Company issued a Notice of Redeployment, informing David
that:

a. Due to reduction of transaction/call volumes, and/or immediate client pull-

out, leading to excess staffing and superfluous positions, Sutherland
Philippines has suspended a portion of the business operations in Petco.”

As discussed in complainant’s position paper, the Supreme Court held that the
“paramount consideration” to take note for a bona fide suspension of
business operation is the “dire exigency” of the employer’s business
compelling it “to put some of its employees temporarily out of work.”

There are no hard and fast rules on what may constitute as a dire exigency.
Thus, the validity of a bona fide suspension of business operation will be on a
case to case basis and taking into consideration the surrounding
circumstances.

Thus, it is incumbent upon the respondents to present evidence of the

“business exigencies in relation to unforeseen reduction of transaction/call
volumes, and/or immediate client pull-out, leading to excess staffing and
superfluous positions” in order to substantiate this claim. In the absence of
which, such contention will naturally not hold water in any proceedings.
Respondents have utterly failed to present such evidence to substantiate this
baseless claim.

First, and basic among these requirements is the Notice of bona fide
suspension to The Department of Labor and Employment (DOLE) by the
respondents. This is a statutory requirement on the part of the employer to
inform DOLE within one (1) month after the suspension of operations done by
the employer and putting it’s employees on “floating status” or what
respondents like to call “Redeployment”.

In as much as the respondents would like to present evidence of compliance

with this requirement, however, it utterly fails to do so, not with lack of trying
but because there is no evidence to show proof that it has complied with this
basic requirement of the law.
 Also, how can the respondents claim “business exigencies in relation to
unforeseen reduction of transaction/call volumes, and immediate client pull-
out, leading to excess staffing and superfluous positions” when in truth and
in fact, corporate respondent is continuosly hiring fresh candidates of
applicants for managerial positions on a daily basis, as supported by Annex “I”
– Team Manager Job Post.

It is hard to imagine how respondents can claim “dire exigency” and put their
employees on a floating status and yet continuosly hire candidates of
applicants for managerial positions everyday. The fact that respondents are
hiring applicants, and even offering signing bonuses, would logically
contradict their alleged assertions of business exigencies, as why would
respondents hire applicants if respondents don’t have any available positions
to place them with? Positions that respondents could easily offer to the
complainants if respondents really wanted to.

Thus, it is incumbent upon the respondents to present evidence of the

“business exigencies suffered by Intuit/Petco account” in order to
substantiate this claim. In the absence of which, such contention will naturally
not hold water in any proceedings. Respondents have utterly failed to present
such evidence to substantiate this baseless claim.

(b) The respondents in page 6, paragraph 17 of their position paper claims:

“ Soon after placing Joy on redeployment status, the Company has exhausted
all means to find her a program for immediate transfer. As in fact, (the) Joy
was endorsed to the following programs:

a. Joy was endorsed to eBay account; however, she failed the client interview
on 5 July 2019;
b. On 8 July 2019, Joy was again endorsed to Median account, but she
declined because she is not interested to work in Cubao; and
c. On 30 September 2019, Joy was again endorsed to Disney account, but she
declined again.

And on page 10, paragraph 23, respondents stated:

“ 23. Soon after placing David on redeployment status, the Company has
exhausted all means to find him a program for immediate transfer. As in fact,
he was endorsed to the program Disney account.”

“ 24. However, David did not reply to the follow up of the Company’s Human
Resources representative, Ms. Castro, on 21 September 2019 through
Facebook. Again, on 23 September 2019, Ms. Castro texted David to follow-up
his acceptance of the offer of the Company for his transfer to Disney...”

Nothing is more far from the truth as these baseless allegations that the
respondents would like this Honourable Office to believe. The truth of the
matter in relation to the eBay and Median accounts are concerned was that
 the complainants was forced to forego the said accounts as they were
informed that their benefits will be diminished in the said accounts. Naturally,
the complainants will refuse to accept the said accounts as the complainants
are fully aware of their rights under the labor code that their can be no
diminution of benefits in cases of transfers to another account.

The Disney account is another matter altogether. The said notice was sent to
the complainants on 30 September 2019 and on 23 September 2019
respectively or more than a month after the complainants filed a complaint
on 20 August 2019 at the National Labor Relations Commission for
constructive dismissal. It is hard to fathom why it took the respondents such a
very long period of time for them to have found an account for their transfer.

From the time that the complainant was first put in a “Floating Status” or 28
April 2019, or for the sake of argument, from the time that the FTD account
allegedly pulled out, which is 20 May 2019, in the case of complainant Joy C.
Palcon, and from the time that the Petco account also allegedly pulled out on
1 July 2019, the complainants were desperately waiting for the respondents
to transfer and assign them to one of its permanent accounts but to no avail.
Therefore, the timing of the notice dated 30 September 2019 and 23
September 2019 for the Disney account transfer is obviously suspect and
tainted.

Any ordinary person under the circumstances would naturally reach the
conclusion that such an act made by the respondents is only an after-thought
brought about by the filing of the complaint by the complainants against the
respondents.

(c) Also, it is note-worthy to discuss the offer being made by the respondents to
the complainants. A cursory reading of the email or mail sent out by the
respondents uses the words “Auto-transfer” but a more careful analysis of
this sinister offer will reveal that being accepted and transferred to the Disney
account is still dependent on the complainants successfully passing an
assessment and client interview. And from the previous experience of the
complainants with the respondents, taking an assessment test and going thru
a client interview is not a guarantee that the complainants will indeed be
transferred to a permanent account. The respondents have a knack of just
verbally informing its employees of the results of their assessments and
interviews without proof of the results.

(d) Finally, complainants would like to call the attention of the Honourable
Arbiter to page 11, paragraph 26, wherein respondents quoted verbatim the
full text of the case of Superior Maintenance Services, Inc., and Mr. Gustavo
Tambunting vs. Carlos Bermeo which the respondents so heavily rely their
defense on, citing that the complainants had prematurely filed their
complaint within the 6-month period allowed by the law.

However, it must be emphasized here that in the case cited by the

respondents, the High Court justified the temporary off-detail of employees
 due to a consequence of lack of available posts with the agency's subsisting
clients, a condition that is non-existent in the case at bar as already proven by
the complainants with their position paper Annex “I” – Team Manager Job
Post. The respondents have failed to grasp the simple raison d’etre of the
complainants’ complaint, and that is that the complainants were subjected to
an act of clear discrimination, insensibility, or disdain by an employer
becoming so unbearable on the part of the employees that it could foreclose
any choice by him or her except to forego their continued employment. Thus
being the circumstances, the cited case by the respondents have no bearing
with the case at bar.

3. Taking the foregoing into context, due to the “grim economic consequences” to
the employee, the employer has the burden of proving that suspension of
operation is valid. The same rule applies for employees who are placed on
“Floating Status.” Failure to do so, the employer may be held liable for illegal
dismissal.

For suspension of business operations due to serious financial losses, these are
ordinarily evidenced by the audited financial statements, balance sheets, profit
and loss statements, annual income tax returns. The Supreme Court held in
Manila Mining Corporation v. Amor, G.R. No. 182800, April 20, 2015, the
employer (mining company) was held liable after failing to present substantial
evidence to support its claim for serious financial losses as the basis for
temporary suspension of operations.

Further, this burden of proof is designed to guard against scheming employers

who may just be feigning or pretending of business losses or reverses in their
business so as to manage or ease out employees.

4. Finally, a note on constructive dismissal. The Supreme Court held in Nelson B.

Gan v. Galderma Philippines, Inc. and Rosendo C. Veneracion, G.R. No. 177167,
January 17, 2013, that:

“Constructive dismissal is defined as quitting or cessation of work because

continued employment is rendered impossible, unreasonable or unlikely; when
there is a demotion in rank or a diminution of pay and other benefits. It exists if
an act of clear discrimination, insensibility, or disdain by an employer becomes so
unbearable on the part of the employee that it could foreclose any choice by him
except to forego his continued employment. There is involuntary resignation due
to the harsh, hostile, and unfavorable conditions set by the employer. The test of
constructive dismissal is whether a reasonable person in the employee's
position would have felt compelled to give up his employment/position under
the circumstances.” (Emphasis ours.)

In the instant case, the complainants were put in a “Floating Status” and was not
given any definite and reasonable answer as to why they were not given new
posts despite the corporate respondents having available manager positions or
slots , which would lead any ordinary person to conclude that there is no lack of
available work but there is lack of concern for the welfare of ordinary employees
 including the complainants. It can be clearly seen that the respondents had taken
upon themselves to make sure that the complainants will be subjected to harsh,
hostile, and unfavorable conditions that any reasonable person in the
complainants’ position would have felt compelled to give up their employment
and position under the prevailing circumstances.

II. PRAYER

WHEREFORE, premises considered, it is respectfully prayed that judgment be

issued declaring the complainants have been ILLEGALLY DISMISSED by way of
constructive dismissal by the respondents.

FURTHER, it is respectfully prayed that the respondents be ordered to pay or

issue to each of the complainants, as the case may be:

(a) SEPARATION PAY.

(b) BACKWAGES from the date of their constructive dismissal on April 28, 2019
up to the time of the finality of the decision.

(c) MORAL DAMAGES of P1,000,000.00.

(d) EXEMPLARY DAMAGES of P1,000,000.00

(e) NOMINAL DAMAGES of P500,000.00.

(f) LEGAL FEES of Ten (10%) Percent of Damages AWARDED.

(g) LEGAL INTERESTS of Six (6%) Percent per annum of the award from the time
of the Decision is rendered, and

(h) Complainants’ CERTIFICATE OF EMPLOYMENT.

FINALLY, the complainants respectfully prays for such and other reliefs as may be
deemed just and equitable under the premises.

Quezon City, October 21, 2019.

JOY C. PALCON
Complainant
Unit 304 Luciana Bldg., 82 C. Jose St., Malibay,
Pasay City, Philippines
DAVID L. ESPINO
Complainant
71 Tubo St., Guinayang, San Mateo,
Rizal, Philippines

Copy Furnished:

ANGEMHEL CASTRO
HR Manager
Sutherland Global Services Philippines Inc.
12F Philplans Building, North Triangle Drive, BGC,
Taguig City, Philippines