Republic of the PhilippinesDepartment of Labor and EmploymentNATIONAL LABOR RELATIONS COMMISSIONRegional Arbitration Branch No. VIICebu City

ROGELIO L. RIETA,Complainant, NLRC CASE No. RAB VII-11-2911-14-versus-

DIAMOND INTERIOR INDUSTRIESCORPORATION/CLINT TIO,Respondents.

POSITION PAPER

The COMPLAINANT, through its counsel and before the Honorable Labor Arbiter, most respectfully submits its position paper, stating as follows:

SYNTHESIS OF THE CASE

1. Unmistakably, this is a case of constructive dismissal. 2. Constructive Dismissal exists when there is a quitting because continued employment is rendered impossible, unreasonable or unlikely. It is an act of discrimination, insensitivity, or disdain by an employer that renders continued employment unbearable, if not impossible.

3. In this case, we humbly submit that the involuntary cessation of complainants employment constitutes constructive dismissal. While it is true that he was bound to resign in 10 August 2014; yet undeniably, before arrival of the intended period, he is still considered by law, and even by respondent, as an employee. Since he is still considered as employee, complainant is entitled to full rights and protection of law and principles of social justice. Henceforth, his employment should be respected and should not be halted without lawful cause and without observance of due process.

4. Regrettably, by and through the acts of respondent, complainants continued employment was rendered unlikely, impossible and most certainly unbearable. Come payment day of his salary, which was due on 31st of July 2014, he was not paid his hard earned remuneration. It was withhold albeit unlawfully. A cruel and dastardly tactic resorted to by respondent in order to cripple him or render him incapable of coming to work.

5. It is not unknown to respondent that complainant lives in the far flunk southern Municipality of Sibonga. A town roughly Ninety-six (96) Kilometers far, more or less, from respondents workplace. How could he be expected to report for duty when he does not have the resources to pay for his fare owing to the unlawful withholding of his salary?

6. In the eyes of the law, a demotion is pay is considered as constructive dismissal; by parity of reasoning, a fortiori with unlawful withholding.

THE UNDISPUTED FACTS

7. On 17 May 2013, complainant Roger Rieta was employed by respondent Diamond Interior Industry Corp. and by Mr. Clint Tio. He worked for respondent as an Internal Auditor, although was assigned task, duties and responsibilities outside that of an auditor, like that of a supply officer for example.

He was then made to sign a ready-made contract of employment, in the form of a contract of adhesion, printed in fine print, without participation of complainant. At the drop of a hat, even without reading, he signed the same.

8. Since then on, he had religiously performed his work and other assigned task and functions as well, even above and beyond the call of duty. Come hell or high water, he strived hard just to show his employer that he is worth his job. Respondent was so satisfied with his performance that sometime in November of 2013, when complainant thought of quitting due to his salary being insufficient to cover his travel and daily expenses[footnoteRef:1], like meals, Mr. Tio promised to give complainant an increase. [1: As early as November 2013, Mr. Tio already have knowledge as to the importance of complaints salary and its indispensability to enable him to travel]

9. Complainants salary falls due on the following dates:

For period worked on 11-25 day of the month payment is due on the 30th or 31st.For period worked on 26-10 day of the month payment is due on the 15th.

10. Having finally decided that he cannot live in a break-even scheme, complainant tendered his resignation on 04 July 2014 through his resignation letter dated as such. It was duly received, acknowledged and dated by Ms. Nenita G. Tanza, respondents Human Resource personnel. As proof hereof, attached and marked as Exhibit A, and made an integral part of complainants Affidavit is the aforementioned resignation letter with sub-markings.

11. In consonance with the conditions set forth under the questionable contract of employment, complainants cessation from work is scheduled to take effect on 10 August 2014[footnoteRef:2], or exactly 37 days after the submission of his resignation letter. [2: Submarked as Exhibit A-4]

12. Thereafter, complainant continued to report and performs his regular work. However, come 31 July 2014, regrettably a day after his birthday and the date for payment of his accrued salary for the period 11-25 of July 2014, complainant was not paid his deserving earnings. When complainant persistently tried to inquire, no one among the human resource personnel offered an explanation; it is as if they were prevented from doing so. It now seems as if he was stoked to quit days before the effectivity of his resignation.

13. Despite this cruel shenanigan, complainant still reported for work on the first and second day of August. On 02 August 2014, he has successfully secured the required clearance from respondent. While securing such, he was persistently compelled to sign a pro forma document entitled QUITCLAIM, WAIVER and RELEASE. Nevertheless, complainant stood his ground and refused to sign the said document. Afterwards, to further add insult, he was told by Ms. Anne Balahan, respondents accounting manager, and we quote: Cleared naka. Ayaw na ug balik. As evidence of the foregoing assertion, attached and marked as Exhibit B, and made integral part of complainants affidavit is a copy of the mentioned Quitclaim, waiver and release document.

14. Subsequently, to his staggering shock, he was made to turn over his ID. Despite his clear reluctance, as he is still due to report until the 10th, he had no other choice; otherwise, he might not be given a clearance. In support of the foregoing fact, attached and marked as Exhibit C, and made integral part of complainants Affidavit is a copy of the clearance, with sub-markings indicating that he was still in office as of 02 August 2014.

15. Finally, to add contempt, after surrendering his ID, he was persistently compelled to sign a pro forma document entitled QUITCLAIM, WAIVER and RELEASE. Nevertheless, complainant stood his ground and refused to sign the said document. Afterwards, to further add insult, he was told by Ms. Anne Balahan, respondents accounting manager, and we quote: Cleared naka. Ayaw na ug balik. As evidence of the foregoing assertion, attached and marked as Exhibit C, and made integral part of complainants affidavit is a copy of the mentioned Quitclaim, waiver and release document.

16. On 04 August 2014, respondent had already found a replacement for complainants position.

17. On 21 November 2014, complainant filed a case before the Honorable Regional Arbitration Branch VII. It was subjected to 3 mandatory conferences which took place on the 13th, 20th and 23rd of January 2015. The first and second were attended by Atty. Jemil Marquez and the third by Ms. Karen Tio. During the first two conferences, the parties were already on the verge of arriving at an amicable settlement. Payment of the settlement amount was already scheduled on the third conference. 18. Unfortunately, come third conference, not only did respondent change its representation, it likewise made a complete U-turn and changed its mind. It is truly determined not to pay herein complainant. It contends that paying him might set as a seminal precedent to its other employees.

19. Thus, after having failed to reach a settlement, the Honorable Labor Arbiter ordered the parties to submit their respective position paper on 02 February 2015 through an order dated 23 January 2015.

20. On 02 February 2015, complainant, by himself, requested for an extension of time to submit his position paper. Attached and marked herewith as Annexes A and B and made integral part of this Position Paper is a copy of said request for extension and official receipt showing the corresponding payment of Five Hundred Pesos (Php. 500.00).

21. On 05 February 2015, complainant, through undersigned counsel, formally moved for an extension of time to submit position paper.

ISSUES

I. Was complainant Rieta constructively dismissed by respondent?

II. Is complainant Rieta entitled to payment of his accrued salary, backwages, thirteenth month pay, service incentive leave, plus interest?

III. Should respondent be held liable to pay complainant damages and attorneys fees?

DISCUSSION OF POINTS

22. The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them.[footnoteRef:3] [3: Ynot vs. IAC, G.R. No. 74457]

23. Finding the courage to pursue his rights and to keep them bright and sharp, complainant Rieta invokes the following constitutional and statutory precepts: [1] Full protection to labor; [2] Promotion of full employment; [3] Right to Security of Tenure; [4] Right to a Just and Humane Working Condition and a living wages; [5] Protection of the rights of workers and promotion of their welfare; [6] Promotion of Social Justice; [7] and that in case of doubt, it shall be resolved in favor of Labor.

24. All the foregoing rights would bolster and favor the conclusion that indeed complainant Rieta was constructively dismissed and hence, entitled to herein prayed for monetary compensation.

25. From the facts established in this case, the following narrations are undisputed:

Complainant Rieta was an employee of respondent. He was bound to resign on the 10th day of August 2014 per his resignation letter dated and submitted on 04 July 2014. He has already successfully secured his clearance for resignation from respondent. But prior to the effective date of resignation, his salaries were unlawfully withheld without any explanation. He was not paid his accrued remuneration earned from the period of July 11-25 and July 26-2 of August 2014. This maneuver involuntarily disabled him from coming to work. This was clearly an indirect act by respondent of preventing complainant from returning to work by refusing to pay him his due.

26. Taking the foregoing into consideration, plus other relevant contemporaneous circumstances [1] the importune surrendering of his ID on threats of not securing clearance; and [2] the clear innuendo to him to not return to work the Honorable Labor Arbiter can inevitably conclude that complainant was indeed constructively dismissed before the period of his resignation.

27. Jurisprudence is replete with definitions of constructive dismissal. Constructive Dismissal exists when there is a quitting because continued employment is rendered impossible, unreasonable or unlikely. It is an act of discrimination, insensitivity, or disdain by an employer that renders continued employment unbearable, if not impossible.

28. Case law edifies that constructive dismissal occurs when there is cessation of work because continued employment is rendered impossible, unreasonable, or unlikely as when there is a demotion in rank or diminution in pay or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee leaving the latter with no other option but to quit (The University of Immaculate Conception v. NLRC, G.R. No. 181146, January 26, 2011).

29. Simply defined, constructive dismissal is an employers act amounting to dismissal but made to appear as if it were not. Constructive dismissal is therefore adismissal in disguise.The law recognizes and resolves this situation in favor of employees in order to protect their rights and interests from the coercive acts of the employer.

30. The act of respondent in unlawfully and unjustly refusing to pay complainant his earned salaries rendered his continued employment unlikely, impossible and unbearable, if not impossible. Reality wise, how could a person of sound mind who lives 96 kilometers away from the work place be expected to report to work if he does not have the means to do so?

31. This was the easiest trick in the book that respondent could pull off. Complainant cannot go to work if he does not have money to pay for his fare and meals. By doing this respondent has effectively and indirectly left complainant with no recourse but to stop reporting for work.

32. Again, we repeat, if under the law, demotion in pay is considered constructive dismissal, more so with no pay at all.

33. The test [of constructive dismissal] is whether a reasonable person in the employee's position would have felt compelled to give up his position under the circumstances (Philippine Veterans Bank v. NLRC, G.R. No. 188882, March 30, 2010).

34. Here, the test should be answered in the positive. Any reasonable man who lives 96 kilometers away from the workplace would have done the same thing as complainant did. He was made to feel unwanted in the work place. He was not given his hard earned salaries, he was made to surrender his ID despite the fact that he is still 8 days away from resigning and lastly, he was told not to go back. Any sensible man in his position would have done the same. Is respondent expecting him to walk to the office? It knows beforehand that complainant was asking for a fare allowance. It knows complainants weakness and it took advantage of it.

35. To simplify matters, respondent wants to Lull complainant into waiving his rights over his entitlements. It was indeed a clever subterfuge. Since in the questionable contract of employment, complainant will be liable to pay the amount of Ten Thousand Pesos (Php. 10,000.00) as liquidated damages should he fail to comply with the 30 days grace period for resignation. Respondent then indirectly coerced him do so. How? What better way to do it than by crippling his means to report to work.

36. To add further insult, complainant was handed out ominous statements after he secured his clearance. Under the situation at hand, the complainant was forced to leave and not to return to work because he now does have the means to do so. The act of leaving was in reality not of complainants choice but a situation respondent has created.

37. Verily, it does not appear to be sound and logical that an employee would resign even before arrival of its resignations effectivity knowing very well of the consequences thereof. Moreover, why would complainant end his livelihood abruptly when he knows that the cut off payment for his salary is on the tenth? That is precisely why he set his resignation on such date.

38. Nonetheless, as hackneyed and trite an excuse, in trying to perform the great escape, respondent justifies this miscreant act by passing fault on complainant and contending that his salaries and other benefit were withheld because complainant failed to comply with the required 30-day resignation period along with the two year probationary period as stipulated in number 11 of the contract of employment. Probably, they anchor this provision on Article 285[footnoteRef:4] of the Labor Code. [4: An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages.]

39. However, we should not lose sight of the fact that the failure to consummate the 30 day period is attributable to the fault of respondent. One, his act of constructive dismissal; two, his express consent when it told respondent not to go back to work. On top of the preceding, what is two day short of the 30 day period? Isnt making him liable to pay Ten Thousand Pesos (Php.10,000.00) utterly and extremely too harsh a penalty?

40. In this jurisdiction, the rule requiring an employee to give a 30-day advance notice prior to the effectivity of his resignation is to enable the employer to look for a replacement to prevent work disruption.

41. This avowed purpose finds no cogent application in this case since as early as 04 August 2014 (2 days after complainants last day of work), respondent has already filled the position vacated by complainant.

42. Furthermore, while Article 285 of the Labor Code mentions that the employer may hold the employee liable for damages, it should not be interpreted to mean that the employer is allowed to withhold his accrued salary and benefits; that would be a form of an automatic appropriation. That is reading something not written in the law. The meaning of the term hold and withhold in the context of the subject provision are miles apart.

43. In a catena of cases decided by the Supreme Court, the cae of Tiu vs. Platinum plans for instance, the rules is that an employer must avail of the available judicial means in order to claim damages. He cannot unilaterally hostage, retain and deduct an employees accrued pay and apply the same as damages.

44. Indeed, having the right should not be confused with the manner in which that right is exercised.[footnoteRef:5] [5: Peckson vs. Robinson Supermarket, G.R. No. 198534]

45. One reason that militates against such practice is that allowing automatic withholding of salary would violate the employee right to due process. He should be afforded the right to be heard and explain his side as to why he was not able to comply with the thirty day period and to determine whether or not there is injury committed on the part of the employer. All this should be answered before he may hold the employee liable. Salary withholding should not be left to the unilateral discretion of an employer.

46. Another reason that would hinder the practice is that it would run afoul to articles 113 and 116 of the Labor Code, which instructs:

Art. 113. Wage deduction.No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except:

1. In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;

2. For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and3. In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.

Art. 116. Withholding of wages and kickbacks prohibited.

It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the workers consent.

47. The foregoing provision would foreclose any justification of automatic appropriation or withholding of an employees salary on the part of the employer. Furthermore, from the enumerated exceptions, none of which applies to the case at bar.

48. Accordingly, complainant did not consent to any withholding of salary by the employer. Assuming for the sake of argument that such is provided in the finely printed contract, it should be given scant consideration.

49. Article 6 of the Civil Code provides that [r]ights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

50. Should there be any provision in the contract of employment regarding such automatic appropriation of salary, such will not partake of a valid waiver as it would be contrary to law, specifically Article 113 and 116 of the Labor Code. Per settled jurisprudence, waiver of employment benefits in advance is prohibited and as such, is considered to be void.

51. Following the rule on autonomy of contract as enshrined in Article 1306 of the Civil Code, while the contracting parties may establish such stipulations, clauses, terms and conditions in their contract, the same must not be contrary to law and public policy.

52. The relations between Capital and Labor are not merely contractual. They are so impressed with public interest that labor contract must yield to the common good. Therefore, these contracts are subject to the provisions of the Labor Code.

53. Article 281 of the Labor Code express:

Art. 281. Probationary employment.Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.

Under the foregoing provision, the period of probationary employment shall not exceed six (6) months.

54. In the case of respondent however, its probationary period is pegged at Two (2) years. Number 10 of their contract of employment stipulates: After two (2) years from the date hired you will be evaluated based on your duties and responsibilities. Whether to terminate you or extend another two (2) years or more.

55. Obviously, the above-quoted provision is null and void as it disagrees with article 281 of the Labor Code. In the case of respondent, its probationary period, alarmingly, exceeds six (6) months. While on some instances probationary period beyond six (6) months are allowed, this is justified by the fact that on those limited situations, the nature of work to be performed by the employee requires a longer period for the employer to determine his merit and fitness and for the employee to learn a particular work, skill, experience or training required by the job. This usually applies in technical fields of work.

56. The same could not be said on the part of complainant. His job is not technical and it does not require respondent an extensive period of two (2) years to determine whether or not he is a competent internal auditor. The provision requiring two (2) year provisionary employment found in number 10 of its contract should therefore be struck down as null and void.

57. As a consequence thereto, complainant should not likewise be permitted to suffer its adverse effect, including the payment of liquidated damages for failure to complete the two year provisionary period. Why would he benefit from the liquidated damages when respondent has consented to complainants resignation? He never exhibited any reluctance on complainants early resignation. Conversely, respondent made it much earlier.

58. Great stress should be laid on the fact that the resignation concerned was not irrevocable. Respondent therefore should be deemed to be estopped from claiming liquidated damages. 59. Admittedly, in some cases, resignation was deemed to take effect upon acceptance and it becomes discretionary on the part of management whether to allow the employee to stay within the 30 day period prior to effectivity of resignation.

60. In this case, no acceptance was ever made by respondent. Instead, it used the non-compliance of complainant with the period of resignation as a means to escape monetary liability. It therefore cannot be permitted to take inconsistent stance. As a result, again, it is unequivocally estopped from claiming that it accepted the resignation and move its effective date just to foreclose liability for constructive dismissal.

61. It is a well settled rule that to constitute a resignation, it must be unconditional andwith the intentto operate as such. There must be anintention to relinquisha portion of the term of office accompanied by an act of relinquishment.

62. The intention to operate as stipulated in the resignation letter was 10 August 2014. This is significant as without this condition coming to fore, there would be no resignation in the first place. To paraphrase, if not allowed to resign on the 10th, which was his only and true intention, complainant would not have resigned at all. Verily, the intention to relinquish his term was made to take effect on the 10th. This cannot be curtailed or interfered with by the employer otherwise, the resignation would now turn out to be involuntary and dependent on the wishes of the employer. It would now be the employer who will choose as to when the employee will resign. This is not permitted under the law.

63. As in any other labor dispute, most especially termination controversies, the more powerful and wealthy employer bears the burden of proving that its act was valid and is based on legitimate cause.

64. Similarly, basic principle is that expressed in Article 4 of the Labor Code that all doubts in the interpretation and implementation of the Labor Code should be interpreted in favor of the workingman. This principle has been extended by jurisprudence to cover doubts in the evidence presented by the employer and the employee.

65. As proof of all the foregoing, attached and marked as Annex C and made integral part of this position paper is an Affidavit duly executed by complainant Rieta.

66. In sum, the failure to finish the end of complainants term was not voluntary on his part; it was the fault of respondent. The circumstances and other evidence surrounding his failure supports the conclusion that he was practically compelled to not to return to work.

67. To emphasize, complainant was dismissed prior to the effectivity of his resignation. An unmistakably, this is a case of constructive dismissal.

68. Respondent therefore is liable to pay moral damages, exemplary damages, attorneys fees, backwages, separation pay and other accrued benefits.

69. Moral damages are awarded in termination cases where the employees dismissal was attended by bad faith, malice or fraud, or when it constitutes an act oppressive to labor, or when it was done in a manner contrary to morals, good customs or public policy.

70. Respondent is also liable to pay complainant backwages, accrued benefits 13th month pay and Service Incentive Leave, and Separation pay as reinstatement in this case is no longer possible due to strained relations and that the position vacated has already been filled.

71. And finally, complainant having been compelled to litigate in order to seek redress, he is similarly entitled to grant of Attorneys fees equivalent of 10% of the total monetary award.

A final word

72. Unfortunately, there are times when we have to part ways with some of you for certain reasons. No matter what they are, the management sees to it that we part ways with our mutual respect and good relationship intact

73. While this quotation from respondents company manual is laudable, we have yet to see this materialize.

74. From a business standpoint, if you want to be pragmatic about it, why would you spend a larger amount in the form of legal expense, instead of paying herein complainant his small settlement amount? Are they really willing to go the extra mile just to showcase their strength over meager a worker? This is not a case of self preservation. The amount herein involved is just a drop in the bucket for respondent.

75. While owners of this prestigious and mensch company are having a fabulous and luscious dinner somewhere at a fine restaurant, a former employee of theirs is struggling to get through the day without starving. Why? All because these people refuse to give this lowly man his due.

76. Indeed this is the main reason why social justice tilts the scale in favor of the Labor.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of the Honorable Labor Arbiter to render judgment finding respondent guilty of constructive dismissal and thereby holding it liable to pay complainant the following:

Backwages Php. 12,000.00;13 Month Pay Php. 6,000.00;Service Incentive Leave Php. 1,200.00;Bond Deposit Php. 8,500.00;Separation pay Php. 24,000.00;Moral Damages Php. 50,000.00;Exemplary Damages Php. 50,000.00;Attorneys Fees 10% of the total amount of the award.

Other equitable and just reliefs applicable under the foregoing premises are likewise prayed for by complainant.

Respectfully Submitted Cebu City 20 February 2015.

CABRIDO & ASSOCIATES LAW FIRMCounsel for complainantRm 1 & 2, G/F Pueblo Aznar Uno BuildingM. J. Cuenco Ave. Cor. Maxilom Ave., 6000 Cebu CityTel: (032) 266 9106

For the Firm:

ATTY. LYNDON Y. ANCAJAS, JR.Roll no. 60162 IBP lifetime no. 010823PTR no. 5554104 Cebu City - 1/15/2015Compliance Certificate No. IV 0019499 5/3/2013Contact No. 0932 427 7562

At my instance:

ROGELIO L. RIETAComplainant

REQUEST/NOTICE FOR SUBMISSION

The Receiving Clerk NLRC VII, Cebu City

ATTY. JEMIL CHRISTIAN B. MARQUEZ Counsel for Respondent

Greetings! Please submit the foregoing Position Paper for the kind treatment and consideration of the Honorable Labor Arbiter, Hon. Milagros B. Bunagan-Cabatingan, immediately upon receipt hereof sans appearance of parties/counsels.

Lyndon Y. Ancajas, Jr.Copy furnished:ATTY. JEMIL CHRISTIAN B. MARQUEZ703, Apple-1 Tower, Cebu Business ParkCebu City

Explanation:

Copy of this position paper was served upon the respondent through registered mail due to the lack of messengerial personnel to effect personal service and unfamiliarity with the location of the office involved.