REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
Quezon City
Ms. X,
Complainant,

NLRC-NCR-00-12345-67
Hon. Labor Arbiter
Juan Dela Cruz

-versusABC School
Respondents,
x---------------------------x
POSITION PAPER
Respondent ABC School, by the undersigned counsel and unto this
Honorable Labor Arbitration Office, most respectfully aver the following:
PARTIES
The Complainant in this case is Ms. X, of legal age, married, with
post office address at 123 1st Street, Sta. Ana, Manila, where she may be
served with summons and other legal processes by this Honorable Office.
Respondent ABC Company is an educational institution established
and organized under the laws of the Republic of the Philippines, holding its
business at #123 San Vicente St., Legaspi Village, Makati City, where it
could likewise be served by this Honorable Office of all its summons and
legal processes.
STATEMENT OF FACTS
1. Ms. X is a contractual non-academic employee of, holding the position of
Department Head. Her task is simply to suggest guidelines and to
implement the approved course curriculum for the BS Hotel and
Restaurant Management (HRM) course of ABC School, to approve the
assignments of teaching loads for the professors as recommended by an
Area Coordinator, and to oversee and evaluate the general performance
of the faculty members. In addition, she is given a maximum of 12 units
per week (12 hours) of teaching load.
2. ABC School has agreed to contract with her on the condition that she will
be working for the sole benefit of the company and [will not] do any act

prejudicial to its interest. Xxx She has been re-contracted three times
since June 26, 2010 the third of which was signed last May 25, 2012,
starting June 18, 2012 and was supposed to end by June 2013, or before
the start of S.Y. 2013-2014, as seen in Annex A.
3. During the end of her second contract, Ms. X have already been showing
signs of disinterest and reluctance to perform her job well by the advent
of several incident reports regarding her efficiency and for her
disobedience to company rules for which she was even suspended (please
see Notice to Explain as Annex B and the Decision as Annex C).
Nonetheless, ABC School still decided to give her another chance to
redeem herself by renewing her contract for another year starting June
2012.
4. Despite this opportunity, Ms. X continued to commit lapses in her
performance and defiance to company rules (please see Annexes D,
E & F), the last of which was contained in an incident report
regarding an alleged case of accepting bribes/gifts in exchange for
higher/passing grades, and unauthorized solicitations to students for a
lunch buffet project in Shangrila Makati, a field trip which was
neither approved nor known to the School Director and other
administrators (Please see the Incident Report on the Notice to Explain in
Annex G). Due to the Gravity of the accusations, ABC School has
decided to conduct a thorough investigation on the matter on February 5,
2013 (see Notice To Conduct Administrative Investigation, Annex H).
Ms. X was hence, put on preventive suspension beginning January 30,
2013, as her continued presence would pose a serious and imminent
threat to her students who have and whose parents have in fact
complained about this, and to prevent a curtailment of an impartial
investigation, considering her stature and influence.
5. A decision has been rendered by February 28, 2013 (Annex I) on the
basis of Ms. Xs answer to her NTE (Annex J) and the findings during
the February 5, 2013 investigation. Some students have confirmed to the
truth on the giving of gifts for a more favorable turn out of their grades,
although they refused to issue sworn statements for fear of being
involved in the controversy to their prejudice. Conclusive evidence has
been found, however, on the two (2) Shangrila Makati trips for October
26 and November 30, 2012 (see Annexes K-1 to K-7) in addition to
Ms. Xs written admission. Henceforth, as a counter-measure to its
reputation being maligned by parents suing ABC School for
unreasonable and unjustified expenditures under the guise of field trips or
projects, as any reputable and virtue-oriented educational institution
would do, ABC School has decided to resolve matters in accordance with
the mandate of the C.H.Ed. Manual1. Ms. Xs employment was thus
terminated.
1 Commission on Higher Education, 2008 Manual of Regulations for Higher Education,

6. Upon the accomplishment of Ms. Xs last pay as a consequence of her

severance from service, a check in the amount of Php17,046.94 was
offered to her by ABC School, constituting her last payroll which should
have been due by January 31, 2013 or before she was put on preventive
suspension (Please see Annexes L-1 to L-6). Ms. X, however,
refused to accept this amount without any justification.
7. With Ms. Xs unwillingness to such termination as well as her
disappointment with her last pay, she has capriciously asserted claim
with this Honorable Arbitration Office as early as April of 2013, which
was subsequently dismissed for her lack of interest. However, last 28th of
January 2014, ABC School has again received summons about a reassertion of Ms. Xs demands, as a result of which, respondent files this
Position paper.
ISSUES:
1. WHETHER OR NOT MS. X HAS BEEN ILLEGALLY
DISMISSED, WARRANTING THE PAYMENT OF MORAL
AND EXEMPLARY DAMAGES AND ATTORNEYS FEES.
2. WHETHER OR NOT MS. X IS ENTITLED
REGULARIZATION, AND OVERTIME PAY.

TO

3. WHETHER OF NOT MS. X HAS BEEN ILLEGALLY

SUSPENDED.

The dismissal of Ms. X is legal and

proper under the circumstances.
We hold that Ms. X should rightfully be dismissed for the following
important reasons:
1. She has pioneered a field trip without authority from the school
administrators, imperiling the students on the pretext of being an official
act of the school, by the influence of her position as Department Head.
This recklessness is highly reprehensible because it unnecessarily
exposes the school to unwanted lawsuit in the event that something bad
may happen to any student. We take precedence on various Supreme
Court decisions holding the school principally and subsidiarily liable
under their special parental authority as mandated by Article 218 of the
Family Code, or under torts. Such authority and responsibility applies to
field trips, excursions and other affairs of the pupils and students outside
the school premises whenever authorized by the school or its teachers (St.
Marys Academy vs. Carpitanos, G.R. No. 143363, February 6, 2002,
citing the book of Alicia Sempio-Diy on the Family Code, p. 344).

As the Shangrila trip was purportedly done in the context of an

academic activity, any unfortunate act that may happen in that very
occasion would necessarily be attributed to the school, and ABC School
will then be enjoined to defend itself in court, and eventually incur
ancillary expenses, which often come with litigation. With Ms. Xs
evident lack of concern for ABC School, as shown by her trail of
inefficient performances, this act was the culminating point where ABC
School was forced to respond with graver measures. It would have been
extremely negligent of ABC School if this was simply let on.
2. The fact that Ms. Xs lunch was paid by the students belies the claim that
the trip was completely and purely meant for educational purposes. This
is certainly not a practice of the school, nor will ABC School consent to
it if known because it breeds connotations of corruption and the giving of
unwarranted favors on the part of the professor, to the prejudice of the
schools reputation. A student will always agree, and even volunteer to
provide not only free lunch but all sorts of graces to his/her professor in
the hopes of even the slightest favorable result and even as they feign to
do so in good faith. We can never be too emphatic on how we want our
professors to always portray a dignified and professional stance before
the students and the public and Ms. X is certainly not exempted from this
condition.
Furthermore, it is not enough that the students will agree by themselves
to holding this type of activity, as Ms. X puts in her defense, especially
when the amount involved is highly unconscionable for its purpose.
Parents have in fact complained to ABC School on the amount of
P836.64 per student for a mere lunch including an additional
corresponding amount for Ms. Xs share. We completely understand the
parents predicaments. This activity is definitely a deviation to ABC
Schools objective in providing quality education for less. ABC School
does not and will not require our students to incur unnecessary expenses
for anyones caprice and any professor who does so should be rightfully
sanctioned.
3. We have as basis the C.H.Ed. Manual, supra, in concluding the
termination of Ms. Xs employment, thus:
Section 121. Causes of Terminating Employment. In addition to the
just causes enumerated in the Labor Code, the employment of
personnel in a higher education institution, may be terminated for any
of the causes as follows:
Xxx
1.) grave misconduct, such as, but not limited to, giving of grades to a
student in a subject not based solely on scholastic performance; xxx;

2.) gross inefficiency and incompetence in the performance of duties

such as, but not limited to failure to cope with the reasonable
standard of efficiency and competence of the institution; xxx;
xxx
7.) the sale of tickets or the collection of any contributions in any form
or for any purpose or project whatsoever, whether voluntary or
otherwise, from students and school personnel;
xxx
Ms. X is not entitled to be
regularized, nor is there any stated
overtime work to justify her demand
of overtime premium.
ABC School has taken Ms. X as an independent contractor, and thus,
she is not an employee of ABC School who is entitled to regularization, both
under labor laws and jurisprudence.
To determine the existence of an employer-employee relationship,
case law has consistently applied the four-fold test, to wit: (a) the selection
and engagement of the employee; (b) the payment of wages; (c) the power of
dismissal; and (d) the employers power to control the employee on the
means and methods by which the work is accomplished. The so-called
control test is the most important indicator of the presence or absence of
an employer-employee relationship. (Sonza v. ABS-CBN Broadcasting
Corporation, G.R. No. 138051, 10 June 2004, 431 SCRA 583, 594-595)
ABC School admits to engaging the services of Ms. X, including her
in its payroll on a monthly basis, and terminating her contract for her breach
of the same in accordance with its rules and regulations, and in consonance
with law. However, the element of control is lacking, making Ms. X an
independent contractor of the same.
While ABC School may approve the curriculum provided by Ms. X to
determine compliance with C.H.Ed. requirements and the needs of the
course, there is no control whatsoever with how she plots the schedules,
distributes the teaching load of the professors and turn out with the result of
her evaluation for each. The guidelines provided by ABC School are simply
meant to ensure the effectiveness of its business. Not every form of control
that a party reserves to himself over the conduct of the other party in relation
to the services being rendered may be accorded the effect of establishing an
employer-employee relationship (Sonza, supra). The line should be drawn
between rules that merely serve as guidelines towards the achievement of the
mutually desired result without dictating the means or methods to be
employed in attaining it, and those that control or fix the methodology and

bind or restrict the party hired to the use of such means. The first, which aim
only to promote the result, create no employer-employee relationship unlike
the second, which address both the result and the means used to achieve it
(Insular Life Assurance Co., Ltd. v. NLRC, G.R. No. 84484 November 15,
1989).
Anent the issue of overtime pay, it is a basic rule in evidence that one
must prove his affirmative allegations (Jimenez vs. NLRC, 256 SCRA 84
(1996). Entitlement to overtime pay must first be established by proof that
said overtime work was actually performed, before an employee may avail
of said benefit (Romeo Lagatic vs. NLRC, G.R. No. 121004, January 28,
1998, citing Cagampan vs. NLRC, 195 SCRA 533 (1991). Absent any proof
to the foregoing, there is no basis in granting Ms. X overtime pay.
The preventive suspension of Ms. X
was only proper and is clearly
within the bounds of law.
Preventive suspension is allowed by Section 122 of the C.H.Ed.
Manual of Regulations for Private Higher Education for any personnel of a
higher education institution. The provision reads as follows:
xxx
A personnel charged for an offense may be placed under
preventive suspension pending investigation, when his/her
continued presence poses a serious and eminent threat to
other persons, the students or personnel and to the institution,
and its property. In no case shall preventive suspension exceed
a period of thirty (30) days.
Xxx (emphasis supplied)
It is the duty of ABC School to make sure that students will not be
gravely affected in their studying and that their grades will reflect the most
accurate results of the same. Unless Ms. X is preventively suspended, we
can very well expect the awkward scenario in her class, which may even
affect her impartiality in grading these students and even her performance.
As earlier mentioned, ABC School would likewise wish to prevent any
prejudice in the conduct of investigation that may be brought by the
influence of her position.
Furthermore, Ms. Xs preventive suspension was imposed effective
January 30, 2013, until the decision was rendered by February 28, 2013,
lasting for only 29 days, clearly within the bounds of law. Hence, there was
no violation on the part of ABC School either substantively or procedurally.

PRAYER
ACCORDINGLY, it is most respectfully prayed of this Honorable
Labor Arbiter, that decision be rendered:
1. Dismissing the charges of Ms. X against Respondent A.M.A.
COMPUTER COLLEGE, INC. for being bereft of any basis.
2. Other reliefs just and equitable under the premises are also prayed for.
Quezon City, April 10, 2014.
XXX LAW OFFICES
2 Floor, No. 80 Roxas Avenue, Quezon City
Tel. No. 63-2-1234567
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By:
ATTY. MARIA NADINE CONCEPCION V.
BALIGOD
Roll of Attorneys No. 000000
PTR No. 123456/01-08-14/Quezon City
IBP Life Roll No.12345/06-14-12/Quezon City
MCLE Compliance No. IV 1234567/ 09-25-12
nadinebaligod@gmail.com
Copy furnished: (by Registered Mail)
Ms. X.
Registry Receipt No._________
123 1st Street,
Date Mailed: _______________
Sta. Ana, Manila

EXPLANATION OF SERVICE
A copy of this position paper was sent to herein complainant via
Registered Mail with Return Card in lieu of personal service due to time
constraints and lack of manpower.
VERIFICATION
I, Mr. Ebert Anatalio, Jr., of legal age and a resident of Quezon City,
Philippines, after having been duly sworn, hereby depose and state that:
1. I am the representative of respondent ABC School in the aboveentitled case; I have caused the foregoing Position Paper to be
prepared; I have read the same, and the allegations therein contained

are true of my own personal knowledge or based on authentic

documents.
Quezon City, April 8, 2014
EBERT ANATALIO, JR.
Affiant
SUBSCRIBED AND SWORN to before me this ________________,
in Quezon City, affiant exhibited to me his ________________________,
issued on _________________________.

NOTARY PUBLIC

Doc. No. ____;

Page No. ____;
Book No. ____;
Series of 2014.