Republic of the Philippines

Department of Labor and Employment

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

ROMMEL M. TUMANDAO, NLRC RAB-X1-00035-19

Complainant,

-versus-

RALPH EVANGELISTA- FOR: ILLEGAL DISMISSAL

CONTRACTOR, WITH MONEY CLAIMS
Respondents.

X ---------------------------------------- X

POSITION PAPER

COMES NOW, Complainant, unto this Honorable Office, most

respectfully submit this Position Paper for consideration, as follows:

THE PARTIES

1. Complainant, ROMMEL M. TUMANDAO, of legal age, Filipino,

may be served with notices, orders, writs and processes of this
Honorable Office at the Office of Councilor Leah A. Librado-Yap,
2/F, Room 203, Sangguniang Panlungsod Building, San Pedro
Street, Davao City, Philippines.

2. Respondent, RALPH EVANGELISTA is a contractor and may

be served with notices, orders, writs and processes of this
Honorable Office at Socrro St., KM. 11 Sasa, Davao City.

3. All parties may sue and be sued.

 FACTS OF THE CASE

5. On November 18, 2018, Ralph Evangelista proposed a project to

the Complainant, ROMMEL M. TUMANDAO, wherein he will be
working as a “painter.” Complainant accepted the offered job and
agreed with the salary rate of 160php per square meter.
Complainant also requested for a “meal allowance” of 100php per
day for each person considering the fact that the employment
location is far from hired workers’ abode. Respondent acceded to
said terms and conditions and assured the Complainant that there
will be no problems regarding the payment of the salary and meal
allowance.  Hereto attached as  Annex
    “
   A
   ” is the copy of Affidavit of Witness;

6. Regularly, Complainant earned Five Hundred Pesos (P500) per

day based on the usual rate of 160php per squaremeter. Hereto
 attached as  Annex
    “
   B
   ” is the copy of Complainant’s payroll;

7. On November 19, 2018, Respondent brought the complainant to

the area where work is to be done. Upon arriving, the Complainant
keenly observed that the ongoing construction of the building,
which is supposed to be measured is not ready to be precisely
portioned. Complainant further observed that there are still
construction laborers presently working on their assigned areas.
The painting of the building would be difficult as there are too many
distractions—rough surfaces and ongoing construction.
Complainant informed respondent about the said predicament but
Respondent merely shrugged and insisted on doing the job despite
the difficulties.

8. On November 25, 2018, Ralph still insisted for the complainant

and his workers to paint and coat the said building. Complainant
clearly manifested that to insist would have an unlikely result
considering the fact that the surfaces of the building are still not
smooth enough to be painted on. To insist would most probably
result to double expenses due to its unsmoothed quality. But the
respondent again maintained his decision.
9. The Complainant and his co-workers started working on
November 26, 2018. Respondent assured Complainant that he will
not to be blamed for whatever failures that will happen as he was
already warned. Respondent further assured Complainant that he
must still paint the rough patches so that his Uncle, the owner of
the building, can see that the constructed building is about to be
done and thus, he can start billing for payment.

10. On December 10, 2018. Complainant called Respondent to

follow up the last materials for final coatings. The respondent,
declined to pay until the latter will able to measure the whole area
and give him a proper quotation. To which the Complainant
complied and gave the quotation of 962.03 square meter. Upon
calculating the whole billing, respondent bargained that he cannot
afford the 160php per square meter as agreed and asked for a
discount of 10php. Complainant approved to the diminution of
150php per square meter. Complainant afterwards asked for the
agreed meal allowance but the respondent did not heed to such
demand.

11. On December 14, 2018, Respondent called Complainant and

ordered the cessation of work due to unjustified reasons.
Complainant begged respondent as there is only 1 week left for the
work to be completed and holidays such as Christmas and New
Year is almost near. Respondent still ordered the stoppage of
Complainant and his laborers’ work. Respondent even threatened
Complainant that he will file a suit if complainant will insist in
continue working.

12. On January 15, after Complainant went to Barangay to report

the illegal dismissal and non-payment of wages, Respondent
challenged the complainant for a fist fight with his uncle Nelson
Evangelista and even threatened the Complainant to quote “Any
time pwede tika ipatumba ug bantay-bantay lang.” Said threats
caused fear and discomfort on the part of the complainant
 Hereto attached as  Annex
    “C” is the copy of Complainant’s Police Blotter;
13. The complainant wasted no time and filed appropriate action to
seek outright justice for himself. An illegal dismissal case against
Respondent was thereafter filed before the office of NLRC-Davao
after efforts to settle the parties proved futile.

ISSUE/S

I. WHETHER OR NOT COMPLAINANT WAS ILLEGALLY

DISMISSED BY HEREIN RESPONDENT; AND

II. WHETHER OR NOT COMPLAINANT IS ENTITLED TO

MONEY CLAIMS?

ARGUMENT AND DISCUSSIONS

I. There is Illegal Dismissal in the present case.

14. Illegal dismissal occurs when just or authorized cause is not

established by the employer upon the termination of the
employee and when there is no due process upon the
termination of the employee as provided by (Section 5,
Department Order No. 147-15).

15. In the case of Rance et. al. vs NLRC, G.R. NO. 68147, June 30,
1988, the Supreme Court held that dismissals must not be
arbitrary and capricious. Due process must be observed in
dismissing an employee because it affects not only his
position but also his means of livelihood. Employers should,
therefore, respect and protect the rights of their employees,
which include the right to labor.

16. For a dismissal to be valid, the rule is that the employer must
comply with both substantive and procedural due process
requirements. Substantive due process requires that the
dismissal must be pursuant to either a just or an authorized
cause under Articles 282, 283 or 284 of the Labor Code.
 Procedural due process, on the other hand, mandates that
the employer must observe the twin requirements of notice
and hearing before a dismissal can be effected. (ALPS
TRANSPORTATION AND/OR ALFREDO E. PEREZ, vs.
ELPIDIO M. RODRIGUEZ, G.R. No. 186732, JUNE 13, 2013)

17. In the case of Gapayao VS. Rosario, the Supreme Court held
that “Pakyaw workers are considered regular employees for as
long as their employers have control over them. The power of
the employer to control the work of the employee is
considered the most significant determinant of the existence
of an employer-employee relationship. This is the so called
control test and is premised on whether the person for whom
the services are performed reserves the right to control both
the end achieved and the manner and means used to achieve
that end. It should be remembered that the control test
merely calls for the existence thereof. It is not essential that
the employer actually supervises the performance of duties by
the employee. It is enough that the former has a right to wield
the power.” In this case, it is apparent that Respondent
has the power to control the work of the complainant. It
can control whether the complainant will paint on the
rough surface even if the complainant already warned
respondent of its unlikely result. Respondent does not
actually supervises the performance of duties of the
Complainant but it has the right to wield the power to
control.

SUBSTANTIVE DUE PROCESS

18. As to the substantive requirement, an employee should be

terminated only for authorized or just causes. Just causes
are grave misconduct, willful disobedience or
insubordination, gross and habitual neglect of duties, fraud
or willful breach of trust, loss of confidence, commission of a
crime or offense or other analogous circumstance Section 5.2,
Department Order No. 147-15). On the other hand, just
causes consist of installation of labor saving devices,
 redundancy, retrenchment, closure and disease Section 5.3,
Department Order No. 147-15).

19. The above-mentioned just and authorized causes are not

present in the Complainant’s case. The Complainant has
never engaged in grave misconduct, willful disobedience
or insubordination, gross and habitual neglect of duties,
fraud or willful breach of trust, loss of confidence,
commission of a crime or offense or other analogous
circumstances.

20. Furthermore, the cause of Complainant’s dismissal was not

well-founded based on substantive evidence. The
Complainant was able to explain and present evidence to
prove illegality of his suspension and yet Respondent
turned blind eye to this legal and factual truth and still
choose to terminate Complainant’s employment without
valid cause contrary to the Labor Code provisions.

21. In illegal dismissal cases like the one at bench, the burden of
proof is upon the EMPLOYER to show that the employee’s
termination from service is for a just and valid cause. The
employers case succeeds or fails on the strength of its
evidence and not on the weakness of that adduced by the
employee, in keeping with the principle that the scales of
justice should be tilted in favor of the latter in case of
doubt in the evidence presented by them. Often described
as more than a mere scintilla, the quantum of proof is
substantial evidence which is understood as such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion, even if other equally reasonable minds
might conceivably opine otherwise. Failure of the employer to
discharge the foregoing onus would mean that the dismissal
is not justified and therefore illegal. (FUNCTIONAL, INC. vs
SAMUEL C. GRANFIL, G.R. No. 176377, November 16, 2011)

22. In consideration of the above-mentioned facts and

circumstances, there is a clear indication that Complainant
 was illegally dismissed for lack of substantive requirements
provided for by law.

PROCEDURAL DUE PROCESS

23. As to the procedural requirement, the employees must be

given two (2) notices before his employment could be
terminated: (1) a first notice to apprise the employees of their
fault, and (2) a second notice to communicate to the
employees that their employment is being terminated.

24. The case of KING OF KINGS TRANSPORT vs MAMAC, G.R. No.

166208, JUNE 29, 2007 further elucidate the procedure
relating to the twin notice and hearing requirement, thus:

a) The first written notice to be served on the employees

should contain the specific causes or grounds for
termination against them, and a directive that the
employees are given the opportunity to submit their
written explanation within a reasonable period. xxx
Moreover, in order to enable employees to intelligently
prepare their explanation and defenses, the notice
should contain a detailed narration of the facts and
circumstances that will serve as basis for the charge
against the employees. A general description of the
charge will not suffice. Lastly, the notice should
specifically mention which company rules, if any, are
violated and/or which among the grounds under Article
282 is being charged against the employees.

b) After serving the first notice, the employers should

schedule and conduct a hearing or conference wherein
the employees will be given the opportunity to: (1)
explain and clarify their defenses to the charge against
them, (2) present evidence in support of their defenses;
and (3) rebut the evidence presented against them by
the management. During the hearing or conference, the
employees are given the chance to defend themselves
 personally, with assistance of a representative or
counsel of their choice. xxx

c) After determining that termination of employment is

justified, the employers shall serve the employees a
written notice of termination indicating that: (1) all
circumstances involving the charge against the
employees have been considered; and (2) grounds have
been established to justify the severance of their
employment.

25. On the surface, it would seem that herein Respondent did not
observe due process when he terminated the Complainant on
December 14, 2018.

26. In view of the infirmities in the proceedings, it is clear

therefore that the termination of Complainant was railroaded
in serious breach of his right to due process. And as a
consequence of the violation of his statutory right to due
process, Respondent is liable to pay nominal damages to the
Complainant. (R.B. MICHAEL PRESS AND ANNALENE
REYES ESCOBIA vs NICASIO C. GALIT, G.R. No. 153510,
February 13, 2008)

27. Any worker to be removed from his job is entitled to

“due process”. By present jurisprudence, absence of
substantive due process makes the dismissal illegal, while
absence of procedural due process does not invalidate the
dismissal but makes the employer liable for monetary
penalty. (Everybody’s Labor Code, 2015 Edition, Azucena)

II. Complainant is entitled for money claims.

1. Backwages, in general, are granted on grounds of equity for

earnings which a worker or employee has lost due to his illegal
dismissal. (Torillo vs. Leogardo, G.R. No. 77205, May 27, 1991)
2. Since the Complainant in the case at bar was illegally
dismissed, he is entitled to payment of backwages based on
his salary;

3. As illegally dismissed employee, Complainant is therefore

entitled to reinstatement without loss of seniority rights and
other privileges and to full back wages, inclusive of
allowances, plus other benefits or their monetary equivalent
computed from the time their compensation was withheld from
him up to the time of their actual reinstatement. If
reinstatement is no longer feasible, as when the relationship
between the employer and employee has become strained,
payment of separation pay in lieu of reinstatement is in order.
(PERPETUAL HELP CREDIT COOPERATIVE, INC. vs
BENEDICTO FABURADA, et. al., G.R. No. 121948, October 8,
2001)

4. Moral damages, as defined in the Civil Code, is recoverable in

labor cases. Moral damages cannot be justified solely upon the
premise that the employer fired his employee without just
cause or due process. Additional facts must be pleaded and
proven to warrant the grant of moral damages under the Civil
Code, these being, to repeat, that the act of dismissal was
attended by bad faith or fraud, or was oppressive to labor,
or done in a manner contrary to moral, good customs, or
public policy; and of course, that social humiliation,
wounded feelings, great anxiety, etc. resulted therefrom.
(NANCY S. MONTINOLA vs PHILIPPINE AIRLINES, G.R. No.
198656, SEPTEMBER 8, 2014)

5. Exemplary or corrective damages are imposed, by way of

example or correction for the public good, in addition to the
moral, temperate, liquidated or compensatory damages. They
are designed by our civil law to permit the courts to reshape
behavior that is socially deleterious in its consequence by
creating negative incentives or deterrents against such
behavior. In labor cases, the court may award exemplary
damages “if dismissal was effected in a wanton, oppressive
 or malevolent manner.”(NANCY S. MONTINOLA vs
PHILIPPINE AIRLINES, G.R. No. 198656, SEPTEMBER 8, 2014)

6. Here, the dismissal of Complainant was maliciously effected

since the dismissal was committed without just cause.
Respondent had no intention to retain Complainant’s
employment except to get rid of him in not to further pay
him. The award of exemplary damages in favor of Complainant
should yield to the purpose and spirit of the law imposing
them—that is, to correct behavior that is socially deleterious
and serve as an example for future employers.

7. In view of the foregoing complaint, the Complainant was

compelled to engage the services of herein counsel to protect his
rights. Also, Article 2208 of the Civil Code enumerates the
instances when attorney’s fees can be awarded, and one of
which is when exemplary damages are awarded. (NANCY S.
MONTINOLA vs PHILIPPINE AIRLINES, G.R. No. 198656,
SEPTEMBER 8, 2014)

8. Since Complainant is entitled to exemplary damages, he is

also entitled to an award of attorney’s fees and expenses of
litigation in the amount of 10% of the total amount of the
claims of Complainant.

PRAYER

WHEREFORE, PREMISES CONSIDERED, it is most

respectfully prayed of this Honorable Office that a decision be
rendered ordering that the Complainant was illegally dismissed and
is entitled to all money claims mentioned above.

Other reliefs just and equitable are likewise prayed for.

March 08, 2019, Davao City, Philippines.

 ROMMEL M. TUMANDAO

Assisted by:

Office of Councilor Leah A. Librado-Yap

2/F, Room 203, SP Building, San Pedro Street, Davao City

By

ATTY. DARWIN A. TENAJA
Counsel for Complainant
PTR No. OR No. 9734415/01­08­2018/Davao City
IBP No. 025685/12­28­2017/Davao City
Series No. 047­2016/Davao City
ROLL No. 57556 April 2010
MCLE Compliance No. V1­0009825/6­7­2018
Email add: darz_kant@yahoo.com

Copy furnished:

RALPH EVANGELISTA
Respondent
Socorro St., KM. 11
Sasa, Davao City

Republic of the Philippines )

City of Davao ) S.S.
x---------------------------------x

VERIFICATION / CERTIFICATION
 I, ROMMEL M. TUMANDAO, of legal age, Filipino, married
and a resident of Davao City, Philippines, after having been sworn
to in accordance with law, hereby depose and say:

That I am the Complainant in the above-entitled case. I have

caused the preparation of the foregoing Position Paper. I have read
and understood the same and attest that all statements therein are
true and correct to the best of my personal knowledge and belief.

That I have not commenced any suit or proceeding in the

Supreme Court, or any other court, office or tribunal involving the
same issues and the same parties;

That in the event that I come to know of the pendency of any

suit or proceeding involving the same issues between the same
parties, I hereby undertake to inform this Honorable Office within
five days from knowledge thereof.

IN WITNESS WHEREOF, I have hereunto affixed my signature

this _________________ 2019 in Davao City, Philippines.

ROMMEL M. TUMANDAO
Affiant

SUBSCRIBED AND SWORN to before me this ______________

2019 in Davao City, Philippines.

Doc. No. __________ ;

Page No. __________ ;
Book No. __________ ;
Series of 2019.