Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
QUEZON CITY

JOSE D. PAPAYA
Complainant,
-versusNCR-01-00620-12

NCR Case No. (M)

BLUEWAVE MARINE AND OFFSHORE INC.,

ALFA CREW MANAGER PTE. LTD.,
NORMAN MIRANDA/ FILOMENA RAMOS
Respondents.

POSITION PAPER CUM REPLY WITH MOTION FOR

JUDGMENT
Complainant, by undersigned counsel,
honorable office respectfully states that:

unto

this

THE CASE
Herein case is for Illegal Dismissal plus actual OFW
Transportation Expenses and for payment of the unexpired
portion of a contract.
At first, this case was lodged in the sala of Honorable
Labor Arbiter Romelita N. Rioflorido docketed as NLRC NCR
Case No. 09-14433-11 but was dismissed without prejudice
(attached document A).
On January 12, 2012, complainant filed this present
complaint. Respondent opposed the filing of the same and
manifested that they would file a moton to dimiss the case.
However, on March 26, 2012, complainant, through counsel,
received the Position Paper of the respondents. Counsel for
the complainant did not receive the Order from the

honorable office directing the parties to submit position

paper as it was sent to the complainants address.
On April 2, 2012, complainant through counsel received
the Order from this honorable office directing the
complainant to submit Position Paper within ten (10) days
from reciept. Hence, this Position Paper.
Having received the respondents Position Paper in
advance, this Position Paper also serves as a Reply.

PRELIMINARY STATEMENT
Due process must be observed because the dismissal
affects not only the employee's position but also his means
of livelihood. Truly, unemployment brings untold misery and
hardship not only to the workingmen but also to those who
are dependent on the voyage earners. When a person has no
property, his job may possibly be his only possession or
means of livelihood. Therefore he should be protected
against arbitrary deprivation of his job. (Phil-Singapore
Transport Services, Inc., vs. NLRC, G.R. No. 95449, August
18, 1997.)

THE PARTIES
1.
Complainant is a Filipino, of legal age residing at 445
Bautista St., Quiapo, Manila. He may be reached by this
honorable office through undersigned counsel Tagufa
Sabeniano Law Office, 2/F PPSTA Building 1, 245 Banawe St.
cor. Quezon Ave.
2.
Respondents Bluewave Marine and Offshore Inc., is the
local agent of foreign principal Alfa Crew Manager Pte. Ltd.
Both respondents may be reached by this honorable office
at Rm. 306 LBH Bldg., 1431 A. Mabini St., Ermita, Manila NCR
1000

THE FACTS
3.

Complainant was engaged by respondents on the 4 th

of June 2011 for a nine (9)-month contract as a Third
Engineer on board the vessel Humen Bridge.

4.

On or about July 6, 2011, the complainant while

working at a generator of the said vessel, slipped. He
sustained a wound in his left thumb and first degree burns in
his right forearm due to contact with hot oil.

5.

He was given first aid treatment and thereafter he

was disembarked from the vessel and brought to Seacare
Maritime Medical Centre Pte Ltd.

6.

The Medical Examination Certificate issued by

Seacare Maritime Medical Centre Pte Ltd. on July 25, 2011
provided the following: (attached document B)
Reasons for consulting doctor:
Examination
and
Assessment for the burned skin and left hand wound
occurred last 06 July 2011.
Diagnosis: Right Forearm burns- HEALED
Left hand Lacerations- HEALED
Hospital Treatment Necessary?
NO
Treatment terminated?
YES
Recommended Sign Off
NO
FIT FOR DUTY
YES
Infectious
NO
Remarks
Medication

7.

Despite the declaration made by the physician that

he was fit for duty, complainant was not allowed to return
to the vessel and was informed that he had been replaced
and should return to the Philippines.

8.

On July 26, 2011, complainant arrived in the

Philippines.

ISSUES AND ARGUMENTS

I
Whether or not complainant was
illegally dismissed
Complainant was
Illegally dismissed

9.
Complainant was dismissed without a valid or
authorized cause and without due process. The dismissal
was therefore illegal.
Complainant was illegally dismissed from work when
he was not allowed to return to the vessel despite the
certification from Seacare Maritime Medical Centre that he
was fit for duty. The fact that upon his return, another
person was placed in his position proves that the
complainant was invalidly dismissed from work.
10. To constitute a valid dismissal from employment, two
requisites must concur: a) the dismissal must be for any of
the causes provided for in Articles 282 and 283 of the Labor
Code; and b) the employee must be afforded an opportunity
to be heard and defend himself (Permex, Inc., v. NLRC,
323 SCRA 121).
The same principle is reiterated in Serrano V. NLRC, 323
SCRA 445, where it was held that where it was held that the
two essential requisites for an employers valid termination
of an employees services are: a) just and authorized cause:
and b) due process.
11. Respondents claim that complainant was not dismissed
and was simply repatriated due to the incident that led to his
injuries pursuant to the medical advice of the physician at
Singapore who certified that he was unfit to return to his
vessel and advised for repatriation home for continued
treatment.
However, respondents failed to submit the alleged
certification confirming that the complainant was indeed
unfit to retun to his vessel.
12. On the contrary, the medical examination issued by
Seacare Maritime Medical Centre in Singapore, clearly shows
that complainant was fit for duty.

Reasons for consulting doctor:

Examination
and
Assessment for the burned skin and left hand wound
occurred last 06 July 2011.
Diagnosis: Right Forearm burns- HEALED
Left hand Lacerations- HEALED
Hospital Treatment Necessary?
NO
Treatment terminated?
YES

Recommended Sign Off

FIT FOR DUTY
Infectious
Remarks

NO
YES
NO
Medication

13.
In the case of Panfilo Macasero vs. Southern
Industrial Gases Philippines and/or Neil Lindsay, G.R. No.
178524, January 30, 2009 Supreme Court held that:
Indeed, a party alleging a critical fact
must support his allegation with
substantial evidence, for any decision
based on unsubstantiated allegation
cannot stand without offending due
process.
14. The High Court also held in the case of Harborview
Restaurant vs. Reynaldo Labro, G.R. No. 168273, April 30,
2009, that:
In illegal dismissal cases,
the onus of
proving
that
the
employee was not dismissed or if
dismissed, that the dismissal was
not illegal, rests on the employer
and failure to discharge that
burden would mean that the
dismissal is not justified and
therefore illegal.
15. Considering the foregoing, complainant has been
unjustly dismissed by respondents and is therefore entitled
to the full reimbursement of his placement fee with interest
of twelve percent (12%) per annum plus his salaries for the
unexpired portion of his employment contract.
16. Section 10, par. 5 of RA 8042 provides:
In case of termination of overseas employment without
just, valid or authorized cause as defined by law or
contract, the workers shall be entitled to the full
reimbursement of his placement fee with interest of twelve
percent (12%) per annum, plus his salaries for the
unexpired portion of his employment contract or for three
(3) months for every year of the unexpired term, whichever
is less.

II
Whether or not complainant is entitled to
his claim for damages
Complainant is entitled to
His claim for damages and attorneys fees
16. Respondents were all along in bad faith when they
replaced the complainant and did not allow him to return to
the vessel despite the certification by Seacare Maritime
Medical Centre Pte Ltd. that he was fit for duty. Thus, their
claim that complainat was simply repatriated and did not
amount to dismissal is without basis.
17. Consequently, complainant is entitled to to moral
damages since it is apparent that respondents deplorable
action of arbitrarily dismissing the complainant was
attended by bad faith, or constituted an act oppressive to
labor the respondents should be made to pay moral
damages
to
complainant.
(Nueva
Ecija
Electric
Cooperative, Inc., v. NLRC, 323 SCRA 86)
18. As well, by way of example for the public good in order
for them not to emulate respondents deplorable behavior,
respondents should be made to pay exemplary damages
19. Finally, complainant is entitled to attorneys fees
because of respondents act which compelled her to litigate
with a lawyer, consequently incurring expenses. (No. 2,
Article 2208 Civil Code)
It is settled that in actions for
recovery of wages or when the
employee is illegally dismissed in bad
faith or where an employee was forced
to litigate and incur expenses to protect
his rights and interests by reason of the
unjustified acts of his employer, he is
entitled to an award of attorney's
fees. This award is justifiable under
Article 111 of the Labor Code, Section 8,
Rule VIII, Book III of its Implementing
Rules; and paragraph 7, Article 2208 of
the
Civil
Code.
(Baron
Republic
Theatrical,
Major
Cinema,
Wilson
Pascual And Rodrigo Salazar vs. Normita

P. Peralta and Edilberto H. Aguilar, G.R.

No. 170525, October 2, 2009)
Also, pargaraph 8, Article 2208 of the Civil Code
provides:
(8) In actions for indemnity under
workmens compensation and employer
liability laws.

PRAYER
Wherefore, it is most respectfully prayed of this
honorable office to issue a decision finding complainant to
have been illegally dismissed by respondents and ordering
respondents to pay complainant, jointly and severally, the
following:
a.)Full reimbursement of his placement fee with interest
of twelve percent (12%) per annum;
b.)His salaries for the
employment contract;

unexpired

portion

of

his

c.) Moral and exemplary damages;

d.)10% attorneys fees.
Such other relief just and equitable under the premises are
likewise prayed for.
Quezon City, 13th of April, 2012.

TAGUFA SABENIANO LAW OFFICE

2/F PPSTA Building 1
245 Banawe St. cor. Quezon Ave.
Philippines

By:

ATTY. NORMAN L. TAGUFA

Rolls No. 53914
IBP- LRN 010575, February 7, 2012
PTR 2238226, January 4, 2011, Tumauini, Isabela
MCLE Compliance No. III-0009123, March 3, 2010

Copy furnished counsel for respondents by Registered Mail

due to distance and lack of manpower to effect personal
delivery.

VERIFICATION/CERTIFICATION
OF NON-FORUM SHOPPING
I, Atty. Norman L. Tagufa, a Filipino and of legal age, after
having sworn in accordance with law hereby depose and say that:
1.

I am the counsel of record of the complainant in the instant

complaint;

2.

I have prepared and filed the foregoing position paper, and

the same are true and correct based on authentic records;

3.

I have not commenced any other action or proceeding

involving the same issues in the Supreme Court, the Court of
Appeals or different Divisions thereof, or any other tribunal or
agency. To the best of my knowledge, no such action or
proceeding involving the same issues is pending in the
Supreme Court, the Court of Appeals or different Divisions
thereof, or any other tribunal or agency. If I should learn that
a similar action or proceeding has been filed or pending
before the Supreme Court, the Court of Appeals or different
Divisions thereof, or any other tribunal or agency, I shall
notify the court within five (5) days from knowledge thereof.

Quezon City April 12, 2012.

Atty. Norman
L. Tagufa

Republic of the Philippines

Quezon City

)
) S.S

Before me, a notary public in and for the city named above,
personally appeared Atty. Norman L. Tagufa, who is identified by me
through his IBP Identification number 53914 to be the same person
who presented the foregoing instrument and signed the instrument in
my presence, and who took an oath before me as to such instrument.
Witness my hand and seal this 12th day of April 2012.

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