REPUBLIC OF THE PHILIPPINES DEPARTMENT OF LABOR AND EMPLOYMENT NATIONAL LABOR RELATIONS COMMISSION National Capital Region Quezon

City RENATO V. BENDICIO Complainant, -vsNLRC NCR Case No. 08-12509-11 (Hon. L.A. FATIMA J. FRANCO)

CMP FEDERAL SECURITY AGENCY INC. / MR. JOEL BALLESTA, Respondents. x------------------------------------------------------x

RESPONDENTS POSITION PAPER

Respondents, by counsel, to this Honorable Office hereby most respectfully submit this Position Paper and in support thereof, state: THAT-

THE PARTIES
Complainant Renato V. Bendicio (Bendicio, for brevity) is of legal age, Filipino, and currently residing at 4843-A Old Sta.Mesa, Manila.

Respondent CMP Federal Security Agency Inc.,(CMP, for brevity), is a private security agency duly licensed under R.A. 5487, with principal place of business at 1009 Aurora Boulevard, Project 3,Quezon City where it may be served with notices, orders and other processes of this Honorable Office.

Individual respondent Carolina M. Piad(Carolina, for brevity) is the President/CEO of CMP, with the same place of business as stated above where she may likewise be served with notices, orders and other processes of this Honorable Office.

STATEMENT OF THE FACTS AND THE CASE

Respondent CMP is the employer of the complainant since August 26, 1996 up to the time he was justifiably dismissed from service on February 15, 2011 as a security guard. He was assigned at the following post/detachment, to wit: a. SM MEGAMALL (September 1996 June 2003) b. Drug Makers (June 2003 November 2003) c. Buena Homes( November 2003 June 2004) d. French Baker (January 2005 April 2007) e. SM Tagaytay Vacant Lot ( April 2007 October 2008) f. Ford Motors Company, Phil. (November 2007 November 2008) g. SM Grass Pavillion (November 2008 January 5, 2011) h. Mariveles Grains Terminal ( January 16,2011 February 15, 2011)

Complainant is on shifting hours working schedule and whose salary is set at the minimum wage prevailing in the Calabarzon area. Attached herewith and made integral parts of this Position Paper are copies of the service contract, cash bond deposit contract and employees payroll data marked as Annexes 1, 2 and 3.

During Complainants employment, he committed several administrative violations, to wit: 1.) Failure to attend guard mounting on the following dates and the penalty imposed upon him, respectively as shown in Annex 4: a. December 25, 2007 1st offense warning b. December 29, 2007 2nd offense 7-day suspension c. January 04, 2008 3rd offense 15-day suspension POST: FORD MOTORS COMPANY PHILIPPINES 2.) Wearing Type B uniform while on duty a. March 18, 2007 warning POST: SM CITY STA. MESA 3.) Wearing unauthorized socks, no handkerchief, no undershirt and sporting

long hair a. December 29, 2006 warning POST: FRENCH BAKER SM NORTH EDSA 4.) Sleeping on Post a. May 22, 2000 15-day suspension b. July 7 ,2001 warning POST: SM MEGAMALL, SUPERVALUE WAREHOUSE 5.) Incomplete medical kit, un-shined buckle, faded patch and no garrison belt a. July 24, 1999 POST: SM MEGAMALL 6.) Insubordination a. November 9, 1996 -7 day- suspension POST: SM MEGAMALL SUPERMARKET

On January 3, 2011, Complainant Bendicio was caught by the project director Architect Ronie Araneta together with an escort security guard Labilles watching television inside the bedroom model unit of SM Grass Residences without wearing any upper clothing Annex 5. Due to this incident, Bendicio was relieved from his post at the SM Grass Residences and was later on transferred to Mariveles Grains Terminal in Mariveles, Bataan on January 16, 2011 which lasted until he was relieved on February 15, 2011. Subsequently he was ordered to wait for his next assignment at the headquarters of the CMP. However, complainant failed to report to work.

On August 15, 2011, due to the subsequent absence of the complainant, CMP sent notice for absence without leave (AWOL) to the resident address of the former in order to inform him to report to work or clarify his status as an employee of CMP as shown by Annex 6.

However, on the same day, Bendicio filed his complaint against CMP on

the grounds of illegal dismissal, actual non-payment, separation pay and illegal deduction. Hence, the respondents submit this Position Paper.

ISSUES
1. WHETHER OR NOT COMPLAINANT HAS BEEN ILLEGALLY DISMISSED

2. WHETHER OR NOT RESPONDENTS ARE LIABLE FOR THE MONETARY CLAIMS OF THE COMPLAINANT

ARGUMENT / DISCUSSION

Considering that both issues are joined, let us now discuss, assess and scrutinize the facts relied upon by the complainant in effecting the pursuance of his complaint.

Complainant, Bendicio despite having habitually committed various violations of the rules and regulations imposed by his employer and displayed gross neglect of his duties as shown on the records, Respondent has not dismissed nor shown any indication that it has terminated the services of the complainant but instead just assigns him into other posts.

After the complainant was relieved from his last post at Mariveles Grains Terminal in Bataan, he never reported back to work forcing CMP to send a notice for Absence without Leave (AWOL) to his last known addressed. He still refused to report to work and rather on that same day, he filed a complaint against CMP for illegal dismissal and other causes.

It is clear from the facts of the case that the complainant has abandoned his work. Jurisprudence provides for the two essential requirements for abandonment of work to exist. The "failure to report for work or absence without valid or justifiable reason" and "clear intention to sever the employer-employee relationship x x x manifested by some overt acts" should both concur(Henlin Panay Company v. National Labor Relations Commission, G.R. No. 180718, 2009). Further, the employees deliberate and unjustified refusal to resume his employment without any intention of returning should be established and proven by the employer (Samarca v. Arc-Men Industries, Inc., 459 Phil. 506, 2003) . In the case at bar, the complainant has been he was investigated for the January 2011 incident at the SM Grass Pavillion and on August 15, 2011 when complainant was ordered to report to work through a notice at the principal office of the CMP, he failed to show up and explain his side as required by Art. 282 of the Labor Code of the Philippines. Annex 6. It is then clear that complainant failed to report to work from February 15 August 15, 2011 without any justifiable reason as well as with the intention to sever their employer-employee relations by filing a complaint against CMP instead of reporting to work. Therefore there is a clear showing of abandonment of work under the Labor Code of the Philippines which justifies the complainants valid dismissal.

Finally, the complainant cannot claim his separation pay because he was not dismissed by CMP. Under the present laws and jurisprudence, an employee may be entitled to separation pay in four(4) instances, 1) in lieu of reinstatement in illegal dismissal cases, where the employee is ordered reinstated but reinstatement is not feasible; 2)As employers statutory obligation in cases of legal termination due to authorized causes under Art. 283 and 284 of the Labor Code; 3)As financial assistance, as an act of social justice and even in case of legal dismissal under Art. 282 of the Labor Code and; 4) As employment benefit granted in the CBA or company policy (porquiz 2005). In the case at bar, the complainant was not dismissed or terminated at all but rather, he abandoned his work due to absences without leave. In addition, nothing in the CMPs company policy grants any benefit of separation pay to his employees when not terminated. Hence, complainant is not entitled to any separation pay.

PRAYER
WHEREFORE, it is respectfully prayed that this Honorable Office declare to dismiss the complaint for lack of merit. Respondent likewise prays for such other reliefs as may be just and equitable under the premises.

Quezon City, December 05, 2011.

BASSI MATEO & ASSOCIATES Counsel for Complainant Unit 3-A, 2/F Kaminari Bldg., 247-249 Banawe Avenue, Quezon City By: RICARDO G. MATEO PTR No. 1119424 / 1-5-09 / Q.C IBP No. 762273 / 11-21-08 / Pasig City Roll No. 54754 MCLE Governing Board Order No. 1 Series of 2008 COPY FURNISHED: Renato V. Bendicio 4843-A Old Sta.Mesa, Manila

Republic of the Philippines) Quezon City ) SS. VERIFICATION I, CAROLINA M. PIAD , of legal age, Filipino, and with office address at 1009 Aurora Boulevard, Project 3, Quezon City, after first having been duly sworn in accordance with law, do hereby depose and state that: 1. I am the respondent in the above-entitled case; 2. I have read and understood the contents of this Position Paper, based on my own personal knowledge, all the allegations therein are true and correct and based on authentic records; 3. Should I shall learn that a similar action or proceeding has been filed or is pending in any other forum involving the same issues, causes of action and parties, I undertake to inform this Honorable Office and such other tribunal or agency or any other quasi-judicial tribunal or agency of such fact, within five (5) days therefrom. IN WITNESS WHEREOF, I have hereunto set my hand this 6th day of December, 2011 at Quezon City. CAROLINA M. PIAD Affiant SUBSCRIBED and SWORN to before me, a Notary Public for and in Quezon City (date), affiant exhibiting to me his (VALID ID) issued in Quezon City. RICARDO G. MATEO Notary Public PTR No. 1119424, 1/5/09, Quezon City IBP OR No. 762273, 11/21/08, Pasig City

Doc. No. 1; Page No. 2; Book No. II; Series of 2011.