Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region-North Sector
Quezon City

ARLENE N. ALBANO, ET. AL.,,

Complainants,

-versus- NLRC Case No. 0001-10605-05

CEBU SECURITY AGENCY,

And/or WILFREDO ALCORDO/
CEBU PACIFIC AIR,
And/or BONG MOJECA/
DANILO MOJICA
Respondents.
x---------------------------------------x

REPLY
COMPLAINANTS, by themselves, unto this Honorable
Arbitration Office, most respectfully submit their Reply containing the
following:

1. Complainants hereby replead their allegations and

averments in their Position Paper dated March 14, 2006;

2. Respondent company Cebu Pacific Air is emphasizing the

absence of employer-employee relationship between complainants and
respondent Cebu Pacific Air by harping on the existence of a Service
Agreement between respondent Cebu Pacific Air and respondent Cebu
Security Agency. However, the existence of such agreement does not
determine the presence of employer-employee relationship between
complainants and respondent Cebu Pacific Air. As aptly held in the
case of Tabas et. al vs. California Manufacturing Company Inc. et. al
(G.R. No. 80680 January 26, 1989):

“The existence of an employer-employee

relation is a question of law and being such, it cannot
be made the subject of agreement. Hence, the fact
that the manpower supply agreement between Livi
 2

and California had specifically designated the former

as the petitioner’s employer and had absolved the
latter from any liability as an employer, if an
employer-employee relation otherwise exists between
the workers and either firm. At any rate, since the
agreement was between Livi and California, they
alone are bound by it, and the petitioners cannot be
made to suffer from its adverse consequences.”
(Emphasis supplied)

3. The position paper of respondent Cebu Pacific Air

extensively discussed the absence of employer-employee relationship
between complaints and respondent Cebu Pacific Air but it miserably
failed to consider that it has a subsidiary liability in terms of money
claims of complainants. As enunciated in the case of Philippine Bank
of Communications vs. NLRC et al (G.R. No. L-66598, December 19,
1986)

“Under the general rule set out in the first and

second paragraphs of Article 106, an employer who
enters into a contract with a contractor for the
performance of work for the employer does not
thereby create an employer-employee relationship
between himself and the employees of the contractor.
Thus, the employees of the contractor remain the
contractor’s employees and his alone. Nonetheless,
when a contractor fails to pay the wages of his
employees in accordance with the Labor Code, the
employer who contracted out the job to the contractor
becomes jointly and severally liable with his
contractor to the employees of the latter “to the
extent of the work performed under the contract” as if
such employer were the employer of the contractor’s
employees. The law itself, in other words, establishes
an employer-employee relationship between the
employer and the job contractor’s employees for a
limited purpose i.e. in order to ensure the latter get
paid the wages due to them. “

4. The position paper of Cebu Pacific Air is bereft of any

proof that indeed it has comply with its obligation as to the payment of
money claims of complainants to respondent agency Cebu Security
Agency. Such absence of proof is vital to the determination of the
liabilities of both respondents;

5. Given the above-enumerated circumstance, since

complainant was illegally dismissed, they are therefore entitled to the
money claims they are seeking. To reiterate the protection given to
the labor force, the Supreme Court held in two cases the following
ruling:
 3

“Whatever doubts, uncertainties or ambiguities

remain in this case should ultimately be resolved in
favor of the worker in line with the social justice policy
of our labor laws and the Constitution. The consistent
rule is that the employer must affirmatively show
rationally adequate evidence that the dismissal was
for a justifiable cause, failing in which makes the
termination illegal” (Hantex Trading Co., Inc. and/or
Chua vs. Court of Appeals G.R. No. 148241
September 27, 2002).

“In carrying out and interpreting the Labor Code’s

provisions and its implementing regulations, the
employee’s welfare should be the primordial and
paramount consideration. This kind of interpretation
gives meaning and substance to the liberal and
compassionate spirit of the law as provided in Article
4 of the Labor Code which states that “[a]ll doubts in
the implementation and interpretation of the
provisions of [the Labor] Code including its
implementing rules and regulations, shall be resolved
in favor of labor”, and Article 1702 of the Civil Code
which provides that “[I]n case of doubt, all labor
legislation and all labor contracts shall be construed in
favor of the safety and decent living for the laborer”.
(Reyes vs. Court of Appeals, et. al. G.R. No, 154448,
August 15, 2003)

RESPECTFULLY SUBMITTED.
Manila for Quezon City.
May 31, 2006.

ARLENE M. ALBANO ESTELLA BACSARPA

Complainant Complainant

EDEN CUELLO CHARINA CHAN

Complainant Complainant
 4

Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region-North Sector
Quezon City

MAURO R. VALENZUELA,
Complainant,

-versus- NLRC Case No. 00-03-02176-06

UNIVERSITY OF PERPETUAL HELP

AND/OR DR. ANTONIO L. TAMAYO,
Respondents.
x------------------------------------------x

REPLY
COMPLAINANT, by himself, unto this Honorable Arbitration
Office, most respectfully submits his Reply containing the following:

1. Complainant hereby repleads his allegations and

averments in his Position Paper dated May 10, 2006;

2. There was admission of the wrong doing by the

complainant and acknowledged that this must be sanctioned.
However, termination is such a harsh penalty considering that the
Employees Handbook clearly states that when an immoral conduct was
committed for the first time, suspension was the proper penalty (Rule
III No. 17). As specified also in the Handbook, the duration of
suspension will depend on the gravity of the offense (Rule III B).
Aside from suspension, respondents can also sanction the misdeed of
complainant by transferring him to other branches of the respondent
university;
 5

3. Admittedly, respondent university is an institution, which

gives high regard to good moral values and right conduct. However,
respondents must also consider that aside from rendering service for
22 long years to respondents, complainant belongs to the non-
teaching personnel which have a different standard of requirement.
Moreover, the misdeed happened outside the premises of the
respondent university. Again, complainant is not freeing himself from
any liability. In fact, he is apologetic of his misdeed and recognized
that he must be penalized but not with the ultimate penalty of
dismissal;

4. Complainant reiterates the ruling of the Supreme Court in

the landmark case of Almira vs. B.F. Goodrich Ophil Inc. (58 SCRA
120) which he cited in his position paper and the case of Philips
Semiconductors (Phils.), Inc. vs. Fadriquela (G.R. No. 141717
April 14, 2004) where it was held that:

“Dismissal is the ultimate penalty that can be

meted to an employee. Where a penalty less punitive
would suffice, whatever missteps may have been
committed by the worker ought not to be visited
with a consequence so severe such as dismissal from
employment. For, the Constitution guarantees the
right of workers to “security of tenure”. The misery
and pain attendant to the loss of jobs then could be
avoided if there be acceptance of the view that under
certain circumstances of the case the workers should
not be deprived of their means of livelihood.”

5. Given the above-enumerated circumstances, since

complainant was illegally dismissed, he is therefore entitled to
reinstatement and full backwages pursuant to Art. 279 of the Labor
Code and if reinstatement is not possible, separation pay. To reiterate
the protection given to the labor force, the Supreme Court held in two
cases the following ruling:

“Whatever doubts, uncertainties or ambiguities

remain in this case should ultimately be resolved in
favor of the worker in line with the social justice
policy of our labor laws and the Constitution. The
consistent rule is that the employer must
affirmatively show rationally adequate evidence that
the dismissal was for a justifiable cause, failing in
which makes the termination illegal” (Hantex
Trading Co., Inc. and/or Chua vs. Court of Appeals
G.R. No. 148241 September 27, 2002).

“In carrying out and interpreting the Labor

Code’s provisions and its implementing regulations,
the employee’s welfare should be the primordial and
paramount consideration. This kind of interpretation
gives meaning and substance to the liberal and
compassionate spirit of the law as provided in Article
4 of the Labor Code which states that “[a]ll doubts in
the implementation and interpretation of the
provisions of [the Labor] Code including its
 6

implementing rules and regulations, shall be

resolved in favor of labor”, and Article 1702 of the
Civil Code which provides that “[I]n case of doubt,
all labor legislation and all labor contracts shall be
construed in favor of the safety and decent living for
the laborer”. (Reyes vs. Court of Appeals, et. al.
G.R. No, 154448, August 15, 2003

RESPECTFULLY SUBMITTED.
Manila for Quezon City.
May 19, 2006.

MAURO R. VALENZUELA
Complainant
 7

Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region-North Sector
Quezon City

ARMANDO ANGGANTA,
Complainant,

-versus- NLRC CASE NO. 00-07-05949-05

VABGREC SECURITY AGENCY and

LT. ANACLETO REGOR,
Respondents.
x---------------------------------------------------x

REPLY
COMPLAINANT, by himself, unto this Honorable Arbitration
Office, most respectfully submits his Reply containing the following:

1. Complainant hereby repleads his allegations and

averments in his Position Paper dated November 22, 2005;

2. Respondents cannot escape its responsibility of paying

the money claims of the complainant on the ground that
Almanzor Property has not complied with its responsibility under
the contract agreed upon by said company and respondents.
Complainant was never a privy to the said contract. There is no
showing from the evidence that respondents submitted
particularly Annex “B” of Respondents’ Position Paper that
complainant was a signatory to said agreement or was aware of
said agreement between the two companies. The respondents
are the employer of the complainant hence must be the one who
should pay the wages and other money claims of the
complainant regardless of the failure of Almanzor Property to
comply with its obligation;

3. Respondents cannot simply claim that complainant was

aware of the contract between Almanzor Property and
respondents in order to evade his responsibility as employer of
the complainant, because Article 280 of the Labor Code of the
Philippines so provides that; viz:

Article 280. REGULAR AND CASUAL EMPLOYMENT.

– The provisions of written agreement to the
 8

contrary notwithstanding and regardless of

the oral agreement between the parties, an
employment shall be deemed regular where
the employee has been engaged to perform
activities which are usually necessary or
desirable in the usual business or trade of the
employer,
xxx xxx xxx

Provided, That an employee who has rendered at

least one year of service, whether such service is
continuous or broken, shall be considered a regular
employee with respect to the activity in which he is
employed and his employment shall continue while
such activity exists. (Emphasis ours.);

4. Furthermore, in refutation of the respondent’s claim

of lack of employer-employee relationship between him and
herein complainants, the following facts need to be stressed:

4.1 Complainant was actually an employee hired by

respondents to perform tasks which were necessary
and desirable to his main business which is
providing security services to companies;

4.2 Respondent was actually the sole entity who

provided for the salary of herein complainant as the
latter had known no other source of their income
during their employment. Please see the heading
of all the annexes attached in the Position Paper of
the complainant;

4.3 Respondent controlled and restricted the method

and the manner in which the complainant
conducted their tasks although the complainant
reports to the work premises of the companies
contracted to by respondents;

4.4 Complainant addressed his irrevocable resignation

to the respondents and not the Almazor Property
hence respondents are the sole responsible in
paying complainant his unpaid wages and other
money claims;

5. Respondents must exert much effort in demanding from

Almazor Property its compliance to what is incumbent upon it. If legal
action, is necessary, then this must be done against Almazor Property.
Complainant should not be made to suffer for the failure of
respondents to take concrete and immediate action against Almazor
Property.

Respectfully submitted.

ARMANDO ANGGANTA
 9

Complainant

Copy Furnished:
ATTY. PATRICIO L. BONCAYAO, JR.
Counsel for the Respondents
2F Ancestry Bldg., Rotonda,
Alabang, Muntinlupa City

Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region-North Sector
Quezon City

EMILIO C. BADIOLA,
Complainant,

-versus- NLRC Case No. 00-08-06838-05

PLAN DOT COM, INC. and/or

JORGE ENCARNACION ,
Respondents.
x---------------------------------------x

REPLY
COMPLAINANT, by himself, unto this Honorable Arbitration
Office, most respectfully submits his Reply containing the following:

1. Complainant hereby repleads his allegations and averments

in his Position Paper dated October 21, 2005;

2. Considering that the complaint filed before the National

Labor Relations Commission is pro forma in nature, what controls are
the allegations and averments in the submitted position paper of the
complainant;
 10

3. Respondents bolstered its claim that complainant was

dismissed with a just cause by anchoring on a flimsy assertion that there
was willful disobedience on the part of complainant when the latter
allegedly showed disrespect towards respondent Encarnacion and
disobeyed the latter’s directive. It can be gleaned from Annexes “B” and
“C” of the Position Paper of the Respondents (handwritten statements of
respondents’ witnesses) that their statements were not subscribed before
an officer administering oath but just scraps of paper that should not
given weight or credence. Furthermore, there are inconsistencies in
important points in the two statements, which casts serious doubt as to
the real incident that occurred between complainant and respondent
Encarnacion. Finally, these witnesses are still employees of the
respondents hence their credibility and the credibility of their statements
would certainly be in favor of the one who sustains them and their
families.

4. As held in the case of Alcantara, Jr. vs. Court of Appeals,

(G.R. No. 143397, August 6, 2002), the Supreme Court provided two
requisites to constitute willful disobedience:

x x x “Willful disobedience of the employer’s lawful

orders, as a just cause for the dismissal of an
employee, envisages the concurrence of at least two
requisites: (1) the employee’s assailed conduct must
have been willful or intentional, the willfulness being
characterized by a “wrongful and perverse attitude;”
and (2) the order violated must have been
reasonable, lawful, made known to the employee and
must pertain to the duties which he had been
engaged to discharge”.

In the instant case, the alleged act of the complainant in not immediately
following the order of respondent Encarnacion was not established in
their position paper as well as in the evidence they presented. Assuming
arguendo that such act was committed, it does not constitute “wrongful
and perverse attitude” that would result to the dismissal of the
complainant because he was honest in stating that the order cannot be
done but he is willing to finish the job. However, he was forced by a staff
of respondent company to leave the premises. Although such concern
for the company does not justifies complainant’s disobedience to the
directive of respondent Encarnacion, it must not also justify his
dismissal either.

5. It is an undisputed fact that employer and employee do not

stand on equal footing, the latter easily yielding to the directive of the
former in order to protect his work, the only source of income for the
laborer and his family. Hence, the act of complainant in leaving the work
premises on June 22, 2005 and his failure to report since then does not
in any way show misconduct or abandonment of work but obedience to a
directive to leave and get out from the work premises. As enunciated by
the Supreme Court:

“Abandonment is a matter of intention and

cannot lightly be presumed from certain equivocal
 11

acts. For abandonment to exist, it is essential (a)

that the employee must have failed to report for
work or must have been absent without valid or
justifiable; and, (b) that there must have been a
clear intention to sever the employer-employee
relationship manifested by some overt acts – the
second element is the more determinative factor.
Mere absence of the employee is not sufficient. The
burden of proof is on the employer to show a clear
and deliberate intent on the part of the employee to
discontinue employment without any intention of
returning“ (Hantex Trading Co., Inc. and/or Chua
vs. Court of Appeals G.R. No. 148241 September 27,
2002).

6. The action of complainant in filing a case of illegal dismissal

case against the respondents show that he is not abandoning his work at
respondent company. Attached hereto is the complaint before this
Honorable Office. To justify a finding of abandonment of work, there
must be proof of a deliberate and unjustified refusal on the part of an
employee to resume his employment (Lambo vs. NLRC, 317 SCRA
420). The circumstance that the employee lost no time in filing
complaint for illegal dismissal against employer is incompatible with
the charge of abandonment (Garcia vs. NLRC, 313 SCRA 597).

7. Former employees of Plan Dot Com and Mr. Encarnacion

corroborated the assertions of complainant. Attached hereto are Two
“Salaysay ng Testigo” who witnessed the incident that happened between
complainant and Mr. Encarnacion. The two also stated in their affidavit
that they also experienced the predicament of the complainant under the
hands of respondents. Said salaysay is marked as Annex “A” and “B”.

8. Given the above-enumerated circumstance, since

complainant was illegally dismissed, he is therefore entitled to
reinstatement and full backwages pursuant to Art. 279 of the Labor Code
and if reinstatement is not possible, separation pays. To reiterate the
protection given to the labor force, the Supreme Court held in two cases
the following ruling:

“Whatever doubts, uncertainties or ambiguities

remain in this case should ultimately be resolved in
favor of the worker in line with the social justice
policy of our labor laws and the Constitution. The
consistent rule is that the employer must
affirmatively show rationally adequate evidence that
the dismissal was for a justifiable cause, failing in
which makes the termination illegal” (Hantex
Trading Co., Inc. and/or Chua vs. Court of Appeals
G.R. No. 148241 September 27, 2002).

“In carrying out and interpreting the Labor

Code’s provisions and its implementing regulations,
the employee’s welfare should be the primordial and
paramount consideration. This kind of interpretation
gives meaning and substance to the liberal and
 12

compassionate spirit of the law as provided in Article

4 of the Labor Code which states that “[a]ll doubts in
the implementation and interpretation of the
provisions of [the Labor] Code including its
implementing rules and regulations, shall be
resolved in favor of labor”, and Article 1702 of the
Civil Code which provides that “[I]n case of doubt,
all labor legislation and all labor contracts shall be
construed in favor of the safety and decent living for
the laborer”. (Reyes vs. Court of Appeals, et. al.
G.R. No, 154448, August 15, 2003)

EMILIO C. BADIOLA
Complainant

Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region-North Sector
Quezon City
ROBERTO S. SOLIMAN
Complainant,

-versus- NLRC Case No. 00-07-06030-05

ORIENT FREIGHT INT’L, INC.,

and/or Mr. Jose Garcia,
Respondents.
x---------------------------------------x

REPLY
COMPLAINANT, by himself, unto this Honorable Arbitration
Office, most respectfully submits his Reply containing the following:

1. Complainant hereby repleads his allegations and averments

in his Position Paper dated September 30, 2005;
 13

2. Considering that the complaint filed before the National

Labor Relations Commission is pro forma in nature, what controls are
the allegations and averments in the submitted position paper of the
complainant;

3. Respondents are emphasizing their alleged good faith and

generosity to the complainant with regards to the Memorandum dated
March 7, 2003 (Annex “B”) where the latter was only suspended for 20
days for the latter’s failure to control and monitor the issuance of
Requisition Slips (RIS) resulting to the shortage in gas and diesel
inventory amounting to P1.19M. However, respondents miserably failed
to establish that the complainant indeed received said memorandum.
Admittedly, complainant was meted said penalty and served the same
but he never received the aforementioned memorandum thus he was
unaware and was never notified that the next serious infraction that he
will commit will mean his dismissal from work. Considering that no
notice was given to the complainant which amounts to the first notice
required under the two- notice rule provided for under the law, his
subsequent termination is considered illegal;

4. Respondent company bolstered its claim that complainant

was dismissed with a just cause by anchoring on a flimsy and
uncorroborated assertion that there was willful disobedience on the part
of complainant when the latter failed to report to work at the respondent
company’s Alabang branch and his failure to answer the electronic
message of Mr. Rene Garcia dated April 26, 2005. It can be gleaned
from Annex “C” of the Position Paper of the Respondents (the electronic
messages of Mr. Rene Garcia and the reply of the complainant to the
April 26, 2005 message of Mr. Garcia dated April 27, 2005)) that before
April 26, 2005, no message or memorandum regarding a directive that
complainant should report to the respondent company’s Alabang branch.
Said directive was only mentioned in the April 26, 2005 message and
complainant immediately responded to said message by replying on April
27, 2005. Said exhibit (Annex “C”) is attached hereto and marked as
Annex “A” to “A-4” and the reply of complainant is marked as “A-3-a” and
“A-4-a”. There was no deduction for the days that complainant was
absent (from May 3-6) as depicted in the Payslip of complainant for
Period Ending: 5/31/2005 (Annex “B” of the Position Paper of the
Complainant) hence such act was not previously considered by the
respondents as willful disobedience or abandonment.

5. As held in the case of Alcantara, Jr. vs. Court of Appeals,

(G.R. No. 143397, August 6, 2002), the Supreme Court provided two
requisites to constitute willful disobedience:

x x x “Willful disobedience of the employer’s lawful

orders, as a just cause for the dismissal of an
employee, envisages the concurrence of at least two
requisites: (1) the employee’s assailed conduct must
have been willful or intentional, the willfulness being
characterized by a “wrongful and perverse attitude;”
and (2) the order violated must have been
reasonable, lawful, made known to the employee and
 14

must pertain to the duties which he had been

engaged to discharge”.

In the instant case, the act of the complainant in not immediately

following the directive of Mr. Rene Garcia does not constitute “wrongful
and perverse attitude” that would result to his dismissal because all he
was concerned of was transactions that might be hampered at their
warehouse at Manila if he immediately report to the Alabang branch.
The complainant even suggested that he be allowed to report to the
Alabang branch ones or twice a week in order to properly prepare for the
directive of Mr. Garcia. Although such concern for the company does not
justifies complainant’s disobedience to the directive of Mr. Garcia, it
must not also justify his dismissal either.

6. Certainly, the failure of the complainant to report to work on

June 01, 2005 and the subsequent issuance of Return to Work order
does not in any way show misconduct or abandonment of work but an
obedience to the directive of the respondents that the last day of work of
complainant is on May 31, 2005. As enunciated by the Supreme Court:

“Abandonment is a matter of intention and

cannot lightly be presumed from certain equivocal
acts. For abandonment to exist, it is essential (a)
that the employee must have failed to report for
work or must have been absent without valid or
justifiable; and, (b) that there must have been a
clear intention to sever the employer-employee
relationship manifested by some overt acts – the
second element is the more determinative factor.
Mere absence of the employee is not sufficient. The
burden of proof is on the employer to show a clear
and deliberate intent on the part of the employee to
discontinue employment without any intention of
returning“ (Hantex Trading Co., Inc. and/or Chua
vs. Court of Appeals G.R. No. 148241 September 27,
2002).

7. The action of complainant in going Department of Labor and

Employment Public Assistance and Complaint Unit to report his
predicament and his subsequent filing of illegal dismissal case against
the respondents show that he is not abandoning his work at respondent
company. Attached hereto is the complaint before the aforesaid unit
marked as Annex “B”. To justify a finding of abandonment of work,
there must be proof of a deliberate and unjustified refusal on the
part of an employee to resume his employment (Lambo vs. NLRC,
317 SCRA 420). The circumstance that the employee lost no time in
filing complaint for illegal dismissal against employer is incompatible
with the charge of abandonment (Garcia vs. NLRC, 313 SCRA 597).

8. Given the above-enumerated circumstance, since

complainant was illegally dismissed, he is therefore entitled to
reinstatement and full backwages pursuant to Art. 279 of the Labor Code
and if reinstatement is not possible, separation pays. To reiterate the
protection given to the labor force, the Supreme Court held in two cases
the following ruling:
 15

“Whatever doubts, uncertainties or ambiguities

remain in this case should ultimately be resolved in
favor of the worker in line with the social justice
policy of our labor laws and the Constitution. The
consistent rule is that the employer must
affirmatively show rationally adequate evidence that
the dismissal was for a justifiable cause, failing in
which makes the termination illegal” (Hantex
Trading Co., Inc. and/or Chua vs. Court of Appeals
G.R. No. 148241 September 27, 2002).

“In carrying out and interpreting the Labor

Code’s provisions and its implementing regulations,
the employee’s welfare should be the primordial and
paramount consideration. This kind of interpretation
gives meaning and substance to the liberal and
compassionate spirit of the law as provided in Article
4 of the Labor Code which states that “[a]ll doubts in
the implementation and interpretation of the
provisions of [the Labor] Code including its
implementing rules and regulations, shall be
resolved in favor of labor”, and Article 1702 of the
Civil Code which provides that “[I]n case of doubt,
all labor legislation and all labor contracts shall be
construed in favor of the safety and decent living for
the laborer”. (Reyes vs. Court of Appeals, et. al.
G.R. No, 154448, August 15, 2003)

RESPECTFULLY SUBMITTED.
Manila for Quezon City.
October 14, 2005
ROBERTO S. SOLIMAN
Complainant

Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region-North Sector
Quezon City

ROMEO B. CURITANA,
Complainant,

-versus- NLRC Case No. 00-07-06304-05

ACRE FACTOR CORPORATION

And/or ARMANDO UY ,
Respondents.
x---------------------------------------x
 16

REPLY
COMPLAINANT, by himself, unto this Honorable Arbitration
Office, most respectfully submits his Reply containing the following:

1. Complainant hereby repleads his allegations and averments

in his Position Paper dated September 8, 2005;

2. Considering that the complaint filed before the National

Labor Relations Commission is pro forma in nature, what controls are
the allegations and averments in the submitted position paper of the
complainant;

3. Respondent Company is emphasizing its alleged good faith

and generosity to the complainant with regards to the infractions
committed by the latter in the past but miserably failed to consider that
the complainant has already served the penalties imposed upon him by
the respondent company. Hence, said infractions can no longer be used
as one of the grounds in terminating the complainant;

4. Respondent company bolstered its claim that complainant

was dismissed with a just cause by anchoring on a flimsy and
uncorroborated assertion that it was the complainant who abandoned
his job when the latter was not able to render over time work on May 27,
2005. The common evidence presented by the complainant (Annex “C”)
and respondents (Annex “34”), the Payroll slip of complainant for the
period from May 26, 2005 to June 01, 2005, belies the contention of the
respondents that complainant did not render over time work. The items
in the said payroll slip pertaining to Dayoff OT and Overtime and their
corresponding hours and amounts are bracketed and marked as Annex
“C-1”.

5. Certainly, the refusal of the complainant to sign the

suspension order and his compliance to said order does not in any way
show misconduct or abandonment of work but obedience to a 12-day
suspension without the respondents furnishing the complainant a copy
of said suspension order. The actions of complainant in going
Department of Labor and Employment Public Assistance and Complaint
Unit to report the suspension imposed upon him (Annex “D”, “E” and
their submarkings attached to the Position Paper of the Complainant)
and his subsequent filing of illegal dismissal case against the
respondents show that he is not abandoning his work at respondent
company. To justify a finding of abandonment of work, there must
be proof of a deliberate and unjustified refusal on the part of an
employee to resume his employment (Lambo vs. NLRC, 317 SCRA
420). The circumstance that the employee lost no time in filing
complaint for illegal dismissal against employer is incompatible
with the charge of abandonment (Garcia vs. NLRC, 313 SCRA 597).

6. Complainant reiterates its stand that respondents have not

paid the former his Emergency Cost of Living Allowance (ECOLA)
pursuant to Wage Order No. NCR-09, Wage Order No. NCR-10 and Wage
Order No. NCR-11 which should have been implemented by the
respondents. Considering that the payroll slips issued by the
respondents to the complainant show an itemized computation of the
 17

amount being received by the complainant, it is a big wonder why the

ECOLA was not indicated therein if indeed the respondents have been
implementing the different Wage Orders pertaining to ECOLA.

7. It is crystal clear from the Payroll slips attached by the

complainant and the respondents in their position papers as well as the
Payroll slips attached to this Reply which are marked as Annex “A” to “D”
that the Regular pay pertains only to the wage that complainant receives
per day and to no other item like ECOLA. Moreover, in the item
pertaining to Holiday in Annex “D’, the payment given is P280.00, the
same amount of the Regular pay of the complainant. Said item is
bracketed and marked as Annex “D-1”;

8. Given the above-enumerated circumstance, since

complainant was illegally dismissed, he is therefore entitled to
reinstatement and full backwages pursuant to Art. 279 of the Labor Code
and if reinstatement is not possible, separation pays.

RESPECTFULLY SUBMITTED.
Manila for Quezon City.
September 26, 2005.

ROMEO B. CURITANA
Complainant

Alcantara, Jr. vs. Court of Appeals, (G.R. No. 143397, August 6,

2002)

Nevertheless, we agree with petitioner that his behavior did not

constitute the “wrongful and perverse attitude” that would sanction his
dismissal. The surrounding circumstances indicate that petitioner was
motivated by his honest belief that the Memorandum was indeed
unlawful and unreasonable. Previous practice allowed the use of the
union office 24 hours a day, Section 1, Article III of the Collective
Bargaining Agreement for 1996-2001 provided that, “All practices . . . not
expressly provided for in this Agreement which are presently being
 18

enjoyed by the employees . . . shall be continued by the HOTEL . . . .”

Moreover, the Memorandum regulated the use of the union office and
petitioner, a union officer, interpreted such regulation as an unlawful
interference with legitimate union activities. Viewed in this light,
petitioner’s attitude can hardly be characterized as “wrongful and
perverse.” While these circumstances do not justify his violation of the
regulation, they do not justify his dismissal either.

“In sum, we are convinced that respondent did not quit his
job as insisted by petitioners, but was unceremoniously
dismissed therefrom without observing the twin
requirements of due process, i.e., due notice and hearing.
While we recognize the right of the employer to terminate
the services of an employee for a just or authorized cause,
nevertheless, the dismissal of employees must be made
within the parameters of law and pursuant to the tenets of
equity and fair play. Truly, the employer’s power to
discipline its workers may not be exercised in an arbitrary
manner as to erode the constitutional guarantee of security
of tenure. (Hantex case)