Republic of the Philippines NATIONAL LABOR RELATIONS COMMISSION Regional Arbitration Branch No.

VII Cebu City

JOHN LAPUZ, Complainant,

NLRC Case No. RAB-VII 09-8907-2012

-versus-

PHILIPPINE LONG DISTANCE TELEPHONE COMPANY INCORPORATED (PLDT), Respondents. X---------------------------------------------------X

POSITION PAPER

Respondents Philippine Long Distance Telephone Company Incorporated (PLDT) through undersigned counsel, unto this Honorable Office, most respectfully submit this Position Paper, and state that:

I PRELIMINARY STATEMENT

Complainants causes of action against herein respondents are devoid of any merit both in fact and in law, hence, the said causes of action are unfounded and frivolous, and necessarily must fail.

II THE PARTIES

Complainant John Lapuz was hired by respondent Philippine Long Distance Telephone Company Inc. (PLDT) on 01 May 1992 until he was said to be illegally dismissed on 06 May 2011. At the time of his termination from his employment, he was working as a lineman with a monthly salary of P38,000.00

Respondent Philippine Long Distance Telephone Company Inc. (PLDT) is a domestic corporation engaged in the business of telecommunications with its principal business address at Ramon Cojuangco Building, Makati City.

III STATEMENT OF FACTS

The complainant filed this case against respondent corporation for illegal dismissal because of lack of just cause and for want of due process. He is asking for reinstatement with full backwages including all benefits entitled to him under the present and future CBA between PLDT and MKP, from the time of his illegal dismissal to the time of his actual reinstatement, moral and exemplary damages and 10% attorneys fees based on the total monetary award.

Respondent corporation acknowledge that the complainant was employed as a Plant Combinationman III. Aside from his regular duties, the complainant also requisitions materials and supplies. He is allowed to receive these supplies and materials such as jumper wires, from the companys warehouse for delivery to the Mactan Customer Service Zone Office (Mactan CSZ) where he was assigned.

Depending on the available supply, requisitions of materials are filled up by the employee and signed by their field service supervisors (FSS). The employee then delivers the accomplished requisition order (RO) slip to the warehouse and withdraws the supplies and materials for delivery to or use of the CSZ concerned.

In late November 2010, Mr. Erwin Rubi, the FSS of Mactan CSZ started noticing losses of rolls of jumper wires from its Mactan Main Distribution Frame. He immediately notified the Visayas Asset Protection Division (VAP Division) which conducted an investigation of all Mactan MDF personnel.

During the investigation, the VAP division received a tip that the complainant made a questionable requisition of three (3) rolls of jumper wires from the Mandaue Supply Warehouse. Collectively, the three reels of jumper wires had a market value of P 21,000.00.

It learned that the complainant was able to obtain the jumper wires thru a requisition order (RO) bearing serial number 1896350 dated 23 December 2010. According to said RO, its purpose was for SPC/MDF jumpering at the Mactan CSZ. Per its security logbook, the complainant pulled out the jumper wires from the warehouse at exactly 11:20 oclock in the morning.

Hence, on 05 January 2011, the VAP Division thru Mario Ponce invited the complainant (Annex C), Nelson Gabayan (Annex D), Guiller Absin (Annex E) and Crisologo Dela Cerna (Annex F) to shed light on the missing rolls. Aside from them, Erwin Rubi and Dowena Cocgin were present as witnesses. When questioned, the complainant admitted two things: a) he gave one (1) reel of jumper wire to a supplier whose name and designation he no longer remembered, and b) the remaining reels of wires he brought home without authorization.

On the basis of the above statements, respondent PLDT sent to the complainant a request for explanation and charged him with Serious Misconduct and Fraud. After receiving all of the requested documents, the complainant submitted his explanation on 10 February 2011. While denying the charges against him, he admitted the following: a) The Cable Specialist personnel whose identity he failed to identify already returned the jumper wire reel, and b) That all the three reels of jumper wires are now in his possession. On 04 May 2011, Mr. Edwin Lintag, the Assistant Vice president of Cebu CSZ issued a Notice of Termination to the complainant. On 16 May 2011, the complainant filed a complaint against respondent PLDT asking for separation pay, moral damages, and attorneys fees. More than a month later or on 27 June 2011, the complainant amended his complaint and asked for reinstatement instead of separation pay. For failure to arrive at any amicable settlement during the conciliation conferences, this Honorable Office required the herein Parties to submit their respective Position Papers. Hence, this Position Paper for the Respondents. IV ISSUES A.) Whether or not the complainant was illegally dismissed. B.) Whether or not the complainant is entitled to his money claims. V DISCUSSION / ARGUMENTS A.) Complainant was not illegally dismissed. Under Sec. 279 of the Labor Code provides that: The employer shall not terminate the service of an employee except for a just cause or when authorized by law. The complainant was lawfully dismissed for Serious Misconduct and Fraud when he failed to produce or deliver the reels of jumper wires he requisitioned and could not satisfactorily explain its whereabouts. Serious misconduct and fraud are just causes for the termination of employment. Under Article 282 of the Labor Code, it states that: An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties; (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and (e) Other causes analogous to the foregoing. The Labor Code provides that an employer may terminate the services of an employee for a just cause. Among the just causes in the Labor Code is serious misconduct. Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. The misconduct to be serious within the meaning of the Labor Code must be of such a grave and aggravated character and not merely trivial or unimportant. Such

misconduct, however serious, must nevertheless be in connection with the employee's work to constitute just cause for his separation. There was substantial evidence to show that the dismissal was for a just cause and that the complainant was afforded due process to the employee because its requisition order was irregular due to the following reason: a.) The requisition slip was made without a request coming from the complainants immediate supervisor; b.) There was no need to requisition for jumper wires because there was still enough supplies since on 15 December 2010; c.) Curiously, the complainant obtained the approval of Dominador Pacaldo, who was the FSS of PLDT Jones CSZ. Although admittedly, all FSS regardless of their territorial jurisdiction, may sign the RO, the complainant should have first obtained the written approval of his immediate superior, Erwin Rubi or Nelson Gabayan, the authorized signatory in the absence of Mr. Rubi since both individuals were present on 23 December 2010; d.) The complainant did not deliver the three (3) rolls of jumper wires to Mactan CSZ. Relevant in this case is the ruling in Firestone Tire and Rubber Company of the Philippines vs Lariosa, G.R. No. L-70479, where the Supreme Court ruled that: The stealing of a company-owned property is a just cause for termination of employment of the culprit under Article 282 of the Labor Code, specifically on the ground of serious misconduct or fraud or willful breach by the employee of the trust reposed in him by his employer or authorized representative. B.) Complainant is not entitled to his money claims. The minimum standards of due process in all cases of termination of employment are prescribed under Article 277(b) of the Labor Code, to wit: Art. 277. Miscellaneous Provisions. xxxx (b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the cause for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires, in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. It is implemented by Rule XXIII of the Implementing Rules of Book V of the Labor Code, which provides: Section 2. Standards of due process; requirements of notice. - x x x. I. For termination of employment based on just causes as defined in Article 282 of the Code: (a) A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side; (b) A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and (c) A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. x x x.

Respondent PLDT afforded and complied with the two-notice rule under the Labor Code. He was served with two (2) written notices. At the heart of procedural due process in administrative proceedings is simply an opportunity to be heard and explain ones side. Complainant is therefore not entitled to reinstatement, damages and attorneys fees because the respondent had sufficiently established that PLDT faithfully complied with all the substantive and procedural requirements. Respondent PLDT has every right under the Labor Code to dismiss employees performing acts inimical to the companys interest. To allow the respondent corporation to condone the complainants act of misappropriating/stealing company property will be sending the wrong message to its entire workforce that it is perfectly excusable to misappropriate, steal or bring home company property. Such inimical acts which the complainant committed against his employer cannot and should not be countenanced.

PRAYER WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Office to dismiss the instant complaint for utter lack of merit. Other reliefs just and equitable under the premises are likewise prayed for. Respectfully submitted. Cebu City, Philippines, October 3, 2012.

Felix Geromo Counsel For Respondents Attorneys Roll No. 67804 IBP No. 876490/2-11-12/Cebu PTR No. 8966437/2-11-12/Cebu MCLE Comp. Cert. No. III-0008897 Gov. M Roa St., Capitol Site, Cebu City

VERIFICATION

I, ERWIN RUBI, Filipino, of legal age, and with office address at Philippine Long Distance Telephone Company Incorporated, Ramon Cojuangco Building, Makati City, after having been duly sworn to in accordance with law, depose and state: 1. That I am one of the respondent in the instant case; and 2.That I have caused the preparation of the foregoing Position Paper, have read the same and the contents thereof are true and correct to the best of my personal knowledge and based on authentic records. IN WITNESS WHEREOF, I have hereunto affixed my signature this 3 rd day of October 2012, in the City of Cebu, Philippines.

ERWIN RUBI

Affiant CTC No. 87690976 Cebu City/03-10-2012

SUBSCRIBED AND SWORN to before me this 3 rd day of October 2012, in the City of Cebu, Philippines. Affiant exhibited to me his Community Tax Certificate above-written.

Hakam Nepomuceno Notary Public Until December 31, 2012 Notarial Commission No. 098-10 Roll No. 78998 IBP No. 67897564 : 1-11-11 : Cebu City PTR No. 697578 : 1-11-11 : Cebu City MCLE Exempt

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Series of 2012.