Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch
Cordillera Administrative Region
Baguio City

FRANCISCO S. RAMOS,
Complainant,
NLRC CASE NO. RAB-CAR-03-0138-10
-versus-

CHALET TEPEYAC/QUALITYTIME VENTURES, INC.,

ALFREDO E. REONSITO, PRESIDENT; ALMA
V. ROSANTO, Officer-in-charge,
Respondents.
x------------------------------------x

POSITION PAPER WITH MOTION TO ADMIT

BELATEDLY FILED POSITION PAPER

COMES NOW, the Respondents, through the undersigned counsel, and unto this
Honorable Commission, most respectfully submits their Position Paper to the above
entitled case and thus say that:

BY WAY OF MOTION

1. The undersigned counsel had just been engaged to handle this case in favor of
the Respondents;

2. That the Respondents to this case had just recently seen the order of the
Honorable Commission dated April 14, 2010 ordering the submission of the
party’s respective Position Papers within the (10) days from receipt thereof;

3. That it was the front desk clerk who received the order by the Honorable
Commission and inadvertently failed to transmit the same to any of the
Respondents and this is why they were not able to file their Position Paper in
accordance with the Order of the Honorable Commission;

4. That on the 29th day of June, 2010 the Respondents filed with the Honorable
Commission a Motion for the Extension to File Position Paper praying therein
for an additional ten (10) days from filing of the Motion to submit their
Position Paper;
 5. That with the foregoing as premise, and in the interest of substantial justice,
the Respondents by and through the undersigned counsel prays for the
admission and consideration of this belatedly filed Position Paper.

PREFARATORY STATEMENT

A complaint was filed with the Honorable Commission by the Complainant for Illegal
Dismissal (Constructive); Non-payment of Salaries and Wages (March 1-7, 2010); Non-
payment of 13th month pay (2010); Non-payment of Separation Pay; Service Incentive
Leave Pay; and Service Charge against the Respondents on the 9th day of March, 2010. A
copy of the complaint is hereto attached as Annex “A” and made an integral part hereof.

After due notice, in compliance with the NLRC Rules, the mandatory conciliation
conference was conducted before the Honorable Labor Arbiter on the 17 th day of March,
2010.

On the aforementioned conference the Complainant was present, and the Respondents
were duly represented by Alma V. Rosanto. It was agreed that the Salaries and Wages
from March 1-7, 2010 demanded by the Complainant was to be paid by the Respondent
on the 14th day of April, 2010. Considering no settlement was reached with respect to the
other issues, the Honorable Labor Arbiter ordered the submission of Position Papers by
the parties on the matters unsettled.

On the 14th day of April, 2010 the Respondent actually settled two (2) of the demands
of the Complainant. On the day agreed upon, the Respondent paid the Complainant his
salaries and wages for services rendered from March 1 to March 7, 2010, and paid his
pro-rata 13th month pay (2010) for services rendered from January 1 to March 7, 2010. A
copy of the minutes for the meeting agreed upon on the 14 th day of April, 2010, and the
document evidencing the receipt of the Salaries and Wages, inclusive of the pro-rata 13 th
month pay to prove receipt by the Complainant from the Respondent is hereto attached as
Annex “B” and series and made an integral part hereof.

With the payment of the Salaries and Wages (March 1-7, 2010) and the pro-rata 13 th
month pay, only the following issues remain to be resolved by the Honorable
Commission:

a. Illegal Dismissal (Constructive);

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 b. Separation Pay;
c. Service Incentive Leave Pay; and
d. Service Charge.

THE PARTIES

The Complainant, FRANCISCO S. RAMOS, is of legal age, married, and a

resident of Balsigan, Baguio City.

Respondent, CHALET TEPEYAC/QUALITYTIME VENTURES INC.,

ALFREDO E. REONSITO, PRESIDENT; ALMA V. ROSANTO, officer-in-charge,
is with business address at #177 Leonard Wood Road, Baguio City, and may be served
with summons, orders, pleadings, and other processes through the undersigned counsel’s
address.

STATEMENT OF RELEVANT FACTS

The Complainant Francisco S. Ramos was engaged as an all around maintenance

man by the Chalet Tepeyac/Qualitytime Ventures Inc., on the 2nd day of September, 2006.

Being the maintenance man his responsibilities among others include the
maintenance of the perimeter of the hotel premises. His job was to see to it that the
grounds surrounding the hotel were clean and well maintained, to ensure that the any
form of garbage that included pine needles and leaves falling from the trees were
regularly collected and properly disposed of. The Complainant is tasked to performe
these functions not only for the purpose of maintaining cleanliness to foster a pleasant
atmosphere for the guests to appreciate, but also for the purpose of properly disposing
these materials to prevent these from turning into a potential fire hazard that pose a clear
and present danger to life, limb and property.

That on the 7th of March, 2010, on or at about 12:15 in the morning, a fire within
the perimeter of the compound broke out and briskly spread due to the dense volume of
dried pine needles and leaves piled within the premises of the hotel. A copy of the
incident report prepared by front desk clerk Norminio Samson, and a copy of the report
prepared by Security Guard Richard E. Veloria is hereto attached as Annex “C” and
series and made an integral part hereof.

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 At about 10:15 of the same morning another brushfire started, triggered by the
embers left unextinguished from the fire that blazed that early morning. Together with
other hotel employees, the Complainant was called to address the situation while waiting
for the firemen. At about 12:10 that afternoon the firemen came and finally extinguished
the flame.

With fire prevention as a primary concern of the hotel, the maintenance man,
Francisco Ramos in a memorandum was made to explain why he should not be subject of
a disciplinary action considering that the fire that took place at 12:15 in the morning of
March 7, 2010 was able to spread quickly, and the proximate cause appears to be the
piled up pine needles and leaves within the premises left undisposed. In the same
memorandum the Complainant was also made to explain the other allegations of
infractions committed in the past, these were already subject of memorandums to explain
that was duly received by the Complainant. A copy of the memorandum dated March 7,
2010 is hereto attached as Annex “D” and the previous related memorandums are hereto
attached as Annex “E” and series and are made integral parts hereof.

In the memorandum dated March 7, 2010 annexed hereto as “D” the Complainant
was given two (2) days to explain his alleged acts of negligence, and to explain other
similar acts in the past, this for him to be given a chance to air his side and avert any
disciplinary action that may be imposed on him.

When served with the memorandum however, the Complainant refused receipt
thereof and said that he would first talk to his lawyer. The next thing the hotel knew was
that Francisco S. Ramos filed a case for illegal dismissal (constructive) accompanied by
other claims against the hotel with the National Labor Relations Commission.

Contrary to the allegation in the Complainant’s affidavit, Alma V. Rosanto never

uttered the words: “WAG KA NA MUNANG PUMASOK HANGGA’T WALANG
TAWAG SA YO NG GENERAL MANAGER KUNG MAGDUTY DA PA O HINDI
NA”; KUNG AYAW MO PIRMAHAN E DI WAG KA NA MAGDUTY TANGAL KA
NA”; and “CGE PUMUNTA KA SA DOLE, MAGKITA NA LANG TAYO SA
DOLE”. Furthermore, it was front desk clerk Eula E. Casino and not Alma V. Rosanto,
who served, and was refused receipt of the memorandum by Francisco V. Ramos.

Upon learning of the refusal by the Complainant to receive the Memorandum, and
when Alma V. Roasanto and Fransisco S. Ramos chanced upon each other at the stairs
leading to the lobby of the hotel, Alma Rosanto asked the Complainant why he refused to

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receive the Memorandum. The Complainant thereafter answered that he would first
consult his lawyer, and he would just come back the next morning. Then Alma Rosanto
responded by saying “Mula ngayon wala kang schedule and please wait for the advise of
your General Operations Manager when you come to work.” And then the complainant
left.

Perhaps the response of Alma Rosanto that afternoon was taken in the wrong
context by the respondent believing that is why he believed that he was being
constructively dismissed as alleged in his complaint. On the contrary, Alma Rosanto was
only trying to tell the complainant that he had no longer been issued a work schedule that
time because he was to report for work on his regular schedule which is from 8:00 in the
morning to 5:00 in the afternoon.

The only time a work schedule is issued to the maintenance man is when there are
special occasions or exigencies called for by the situation that necessitates the shifting of
his schedule to facilitate the operations of the hotel just like during the previous weeks
before the incident subject of this case where the Panagbenga festival called for the
necessity thereof. The job of a maintenance man normally does not call for a shifting
schedule, in the hotel his regular time of work is from 8:00 in the morning up to 5:00 in
the afternoon, unlike the other hotel staff where they work in shifts and are subject to a
regular rotation and shifting of work schedules. If no work schedule is issued to the
maintenance man, then he automatically reverts back to his regular schedule of working
for the hotel from 8:00 in the morning to 5:00 in the afternoon.

Francisco S. Ramos was first ordered to make an inventory of all the tools,
equipment and materials in his custody as the maintenance man first time sometime in the
last week of December 2009 by our director Mrs. Monica Rosanto. Although the order to
make an inventory was made long time before, the only time the Complainant made the
inventory was when a follow up was made by Alma V. Rosanto on the 7th day of March,
2010. Before the request on March 7, 2010 several requests were made for the
Complainant to make the inventory twice by Eula E. Casino and twice by Alma V.
Rosanto but every time the follow up-request seemed to have fallen upon deaf ears.

When Francisco S. Ramos finally submitted the inventory report on March 7,

2010 a number of items entrusted to his custody were missing and unaccounted for and
this prompted the management to check the things of the Complainant-maintenance man
before he went home.

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 On the mandatory conciliation conference scheduled March 17, 2010, where all
the parties were duly represented, the Honorable Labor Arbiter asked the herein
Respondent if they were willing to allow the complainant to return to work and the
Respondent answered in the affirmative because the fact is that the Complainant was
never dismissed from work in the first place, he had all the right, and obligations
accompanied thereby to return to his work.

When the Honorable Labor Arbiter reiterated the manifestation by the respondent
and advised that the Complainant may go to work, the herein Complainant refused simply
because he claimed that Alma V. Roasnto was picking on him.

On the 14th day of April, 2010, the date set for the second conference, payment
was made before the Honorable Commission for the Salaries and Wages for March 1 to
March 7, 2010, together with the pro-rata 13th month pay, the corresponding amount duly
received thereat by the Complainant from the Respondent evidenced by the documents
annexed as “B” and series.

ISSUES

I.

WHETHER OR NOT THE COMPLAINANT WAS

ILLEGALLY DISMISSED

II.

WHETHER OR NOT THE COMPLAINANT IS ENTITLED

TO REINSTATEMENT, BACKWAGES AND OTHER MONETARY
CLAIMS, DAMAGES, ATTRONEY’S FEES, AND OTHER
RELIEFS IN EQUITY AND LAW

III.

WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO

SALARIES/WAGES FOR SERVICES UNRENDERED

DISCUSSION

NO, the Complainant to this case was not illegally dismissed because he has never
been dismissed from his work in the first place. There being no dismissal by the
employer of the employee from his employment, the latter by logical implication cannot
be entitled to the reliefs granted by Article 279 of the Labor Code of the Philippines.

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 Indeed, under Article 279 of the Labor Code, 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 back wages, 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. (emphasis supplied by us)

The instant case before the Honorable Commission however, clearly demonstrates
that there was no illegal dismissal of the Complainant-employee, either actual or
constructive. At the time he felt he was being constructively dismissed, he was only
being made to receive a memorandum to explain and defend himself against the incidents
that tend to portray acts of negligence on his part.

The obligation of the employer to ask for an explanation of the alleged acts of the
employee tending to point to the absence of diligence in the performance of his duties
and functions, other than intending for the concerned employee to justify his acts or
omission to avert disciplinary action, is intended to ascertain facts and circumstances by
management with the objective of using these information to improve overall operations
of the business.

The herein Complainant claims that he was surprised when Alma V. Rosanto
sternly told him to make an inventory of all maintenance tools and submit the same to
her. The fact is that this was not only the first time he was reminded to make the
inventory considering that this was only a follow up of the task among many follow ups
to do the task assigned to him by an order made by the hotel director Monica Reonsito
sometime in the end of December, 2010. Before March 7, 2010, Francisco S. Ramos was
reminded by Alma V. Rosanto and twice by Eula E. Casino to perform the inventory of
the maintenance tools and equipment in his custody, a follow up on the order made to
him by Monica Reonsito way back December of 2009. A copy of the Joint Affidavit of
Jess Obedeza to prove the original order of Monica Reonsito and Eula E. Casino to prove
the follow ups to the original order is hereto attached as Annexes “F” and “G” and made
an integral part hereof.

That in the report submitted by Francisco S. Ramos there were tools missing and
unaccounted for that includes: a hammer; a chisel; a “squala”; a meter tape; 2 philps
screw driver and a regular screw driver. This is what prompted Alma V. Rosanto to have
the things of the Complainant checked before he went home, done as respectfull and as

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discrete as possible, and this is how it was done. A copy of the inventory report is hereto
attached as Annex “H” and made an integral part hereof.

No less than the Supreme Court made this declaration:

“Except as limited by special laws, an employer is free to regulate

according to his own discretion and judgment, all aspects of employment,
including hiring, work assignments, work methods, time, place, and manner of
work, tools to be used, processes to be followed, supervision of workers, layoff of
workers and the discipline, dismissal and recall of workers.”1

The memorandum dated March 7, 2010 was to give the Complainant, Francisco
S. Ramos a chance to explain within two (2) days from receipt of the document why he
should not be subject to disciplinary action for the five (5) times he may have put the
hotel at risk. Now, instead or receiving the memorandum and submitting his explanation,
the Complainant refused receipt of the same, and instead, filed a complaint with the
Honorable Commission. To this day the incidents concerning Francisco S. Ramos
relating to the memorandum dated March 7, 2010 have not yet been acted upon by
management because of his refusal to receive the same. Management is in fact still
waiting for the Complainant to answer, and this only to demonstrate how much the
Respondent respects the procedural and substantive due process when it comes to the
relations with its employees.

There was no offense meant by Alma Rosanto when she said “Mula ngayon wala
kang schedule and please wait for the advise of your General Operations Manager when
you come to work”. Maybe it was not so much of what she said, but more on how she
said the utterance that the Complainant took offense. Considering the mishaps that
happened during the course of the day Alma Rosanto is only human, and may have had
delivered the statement in a way that was unpalatable to the Complainant.

The forgoing do not indicate however, by any means, manner, mode or form that
Francisco S. Ramos was being constructively dismissed. There is no showing that the
actions of the Respondent made the Complainant’s continued employment impossible,
unreasonable and unlikely.

Constructive dismissal is defined as an involuntary resignation resorted to when

continued employment becomes impossible, unreasonable or unlikely; when there is a

1
San Miguel Brewery Sales vs. Ople, G.R. No. 53615, February 8, 1989.

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demotion in rank or a diminution in pay; or when a clear discrimination, insensibility or
disdain by an employer becomes unbearable to an employee.2 In this case, there in no
factual circumstance to conclude that the action taken by management in its relations
with Francisco S. Ramos falls within the ambit of the definition of constructive dismissal.

Undeniably, the position of maintenance man in the hotel remains to belong to the
Complainant, and to him alone. Considering that the employer-employee relationship
between Francisco S. Ramos and Chalet Tepeyac/Qualitytime Ventures Inc. had never
been severed nor terminated, the position of maintenance man eagerly awaits for the
former to report for work.

The payment of back wages as prayed for by Francisco S. Ramos requires that he
be found illegally dismissed, the circumstances in the case tends to prove otherwise.
There was no severance of employer-employee relationship, actual or otherwise. The
position of maintenance man continues to belong exclusively to the Complainant. With
respect to his refusal to report for work, he acted as a man who is the captain of his ship
and the master of his fate, and now the position still patiently waits. There being no
dismissal in the first place, the Complainant cannot avail of the relief for back wages
simply because the fact from which his cause of action may arise did not exist.
(emphasis supplied by us)

Considering that dismissal from work, the basis for the Complainant’s claim for
reinstatement and back wages does not exist, adding the fact that the duties and
corresponding responsibilities of the position he claims he was dismissed from eagerly
awaits his performance, and no one else’s, the Honorable Commission should issue a
return to work order to the Complainant, not an order for his reinstatement as prayed for.
Logically if the Honorable Commission issues a return to work order, the herein
Complainant shall not be entitled to any salaries or wages for the time he did not report
for work, a ruling anchored on the well entrenched principle that “a fair day’s wage”
accrues only for a “fair day’s labor”.3

In a recent case High Court ruled as follows:

“He never bothered to redeem his license at the soonest possible time when
there was no showing that he was unlawfully prevented by respondent from doing so.
Thus, petitioner should not be paid for the time he was not working. The Court has
held that where the failure of employees to work was not due to the employer's fault,
2
Francisco v. NLRC, G.R. No. 170087, August 31, 2006, 500 SCRA 690, 702-703
3
Helibronn vs. NLU. G.R. No. L-5121, Jan. 20, 1593.

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 the burden of economic loss suffered by the employees should not be shifted to the
employer. Each party must bear his own loss. It would be unfair to allow petitioner
to recover something he has not earned and could not have earned, since he could
not discharge his work as a driver without his driver's license. Respondent should be
exempted from the burden of paying backwages.”4

We now replead the pertinent provision contained in our Statement of Facts as

follows:
“On the mandatory conciliation conference scheduled March 17, 2010,
where all the parties were duly represented, the Honorable Labor Arbiter asked
the herein Respondent if they were willing to allow the complainant to return to
work and the Respondent answered in the affirmative because the fact is that the
Complainant was never dismissed from work in the first place, he had all the
right, and obligations accompanied thereby to return to his work.

When the Honorable Labor Arbiter reiterated the manifestation by the

respondent and advised that the Complainant may go to work, the herein
Complainant refused simply because he claimed that Alma V. Roasnto was
picking on him.”

We are attaching hereto a copy of the minutes signed by the parties and the
Honorable Labor Arbiter as Annex “I” and made an integral part hereof.

At the mandatory conciliation conference, the Respondent clarified that the

Complainant was not dismissed and they were willing for the Complainant to come back
to work, thereby clearing any doubt that he was unlawfully prevented, constructive or
otherwise by the respondent to go to work. Unfortunately, before the Honorable Labor
Arbiter the Complainant unjustifiably refused to return to work, he therefor cannot
discharge his work as a maintenance man if he does not report for work.

At this point it is worth noting that the general principle is that one who makes an
allegation has the burden of proving it. A party alleging a critical fact must support his
allegation with substantial evidence. Any decision based on unsubstantiated allegation
cannot stand as it will offend due process.5 In labor cases as in other administrative
proceedings, substantial evidence or such relevant evidence as a reasonable mind might
accept as sufficient to support a conclusion is required. 6 The often repeated rule is that

4
NAVARRO v. P.V. PAJARILLO LINER, INC., G.R. No.164681, April 24, 2009

5
UST Faculty Union v. UST, G.R. No. 180892, 7 April 2009
6
Id.

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whoever claims entitlement to the benefits provided by law should establish his or her
right thereto by substantial evidence.7

In the instant case, the burning question is, “Was the Complainant able to prove
his case with substantial evidence to be entitled to the causes of action for which he
claims”, no he has not.

PRAYER

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

Honorable Commission to render Judgment dismissing the instant complaint for lack of
merit and ordering:

1. The Complainant FRNCISCO S. RAMOS to return back to work as

maintenance man of the Chalet Tepeyac/Qualitytime Ventures Inc.;
2. The dismissing the claim for back wages because the facts do not support
the law for which the claim is relies upon;
3. The dismissal of the other claims finding the same to be without factual
and legal basis;
4. To grant the Complainant the service incentive leave prayed for in
accordance with Article 95 of the Labor Code because he is indeed
entitled to the same.
Other relifes under the premises just and equitable are likewise prayed for.

Respectfully submitted, this 8th day of July, 2010 in the City of Baguio,
Philippines.

STEVEN C. RAROQUE
Counsel for the Respondents,
Rm. 2, 2nd Floor, Luna Apartments,
#17 Naguilian Raod, Baguio City
PTR No.:2650287/12-10-09/B.C.
IBP Lifetime Membership No. 715358
Roll No. 52526
MCLE Compliance No.: III-0002164/02-10-09

Copy furnished:

Atty. MILTON L. BALAGTEY (By personal service)

BASA BALAGTEY LAW OFFICES
Benitez Court Compound,
Magsaysay Avenue, Baguio City

7
Signey v. Social Security System, G.R. No. 173582, 28 January 2008, 542 SCRA 629, 639.

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