Professional Documents
Culture Documents
CHRISTIAN M. TAYAO,
Complainant,
NLRC RAB Case No.
-Versus-
VI-10-093-AKLAN-2016
REPLY
(TO RESPONDENTS POSITION PAPER)
1. Before digging into the arguments, the complainant first of all vehemently
opposes the admission of certain documentary evidence submitted by the
respondents together with their Position Paper. First its ANNEX 7 for
being unfairly altered to make it appear that it was signed by the parties.
Fortunately for the complainant, it was manifested and placed on record
during the December 24, 2016 NLRC hearing that the above-mentioned
document is undated and unsigned. (Please see the hereto attached copy of
the minutes of the December 24, 2016 NLRC hearing as Annex A);
4. Like the Pre-trial, the NLRC hearing on December 24, 2016 which was
attended by both counsels of the parties sought to avoid unfair surprises to
either sides through presentation of evidence that were not marked. The
complainant does not contest the admission of other documents obtained
after the mentioned hearing, but only those which, if actually existed, must
have already been at the possession of the respondents from the very onset
of the case. Thus they have no excuse why they were not offered for
marking during the hearing;
Reply_Christian Tayaopage 2
cigarette trade and on Risk of revenue loss due to illicit cigarette trade.
The respondents even talked about risk of significant revenue loss and
unrealized profits, lost tax revenue for the government and increased
health hazards to the public;
7. The complainant however submits that all these matters have nothing to do
with his case. He did not sell any counterfeit product. He was not into an
illegal trade of cigarettes. None of his acts cost even a single centavo loss to
the company, nor was there any showing that his acts could cause risk of loss
or damage to the company. More so, his acts have nothing to do with
government taxes because his transactions were accordingly covered by
receipts. And there was no health risk he added to the public to what the
companys products could already create;
9. For one, Hormillosas main offense was the making of cash transactions
appear to be credit transactions, thus he received money from customers but
failed to remit the same to the company. He also lied to a buyer claiming that
the products he sold were part of market development program product
assistance. He also forged the signature of one customer;
10.But this is not so in the case of Christian Tayao. He did not keep to himself
any amount of money from the sales. Everything he got from the
transactions were timely and duly remitted to the company. He also did not
misrepresent anything to any customer. And he never forged anyones
signature. In some receipts, though it was not really the store owners who
personally signed, at least it was signed by their representatives (as
acknowledged by the respondents in their position paper, for Chasty Store
the receipt was signed by the owners helper, for Mamas Store the receipt
was signed by Peter who was a friend of the owner);
11.Not only that, in Hormillosas case, he was given several chances to be heard
but he did not attend the company hearings or respond to them, until after he
filed a ULP case against his company. He did not send a written explanation
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but a letter merely informing the company about the ULP case, thus he was
declared to have dealt with the company in bad faith;
12.Again, this is so different from Christian Tayaos case. Christian, right after
receiving the NTE from his manager responded to it by submitting his
personal handwritten explanation. This is despite the fact that the NTE was
sent to him only through an email. And even at that point when Christian
Tayao did not have any chance to orchestrate a story for his defense, nor was
he advised by a lawyer, his responses have always been consistent, true and
in good faith;
13.Opposite to the cited case, it was rather PMFTC or its manger who dealt
with Christian Tayao in bad faith. As discussed in his Position Paper,
Christian was not given a chance at all to seek assistance from his counsel
for the so called hearing of his case, as he was notified thereof a few hours
(at late night) before its schedule, merely through a text message. The
hearing was also conducted not for Christian to be heard, but to elicit
admissions from the poor employee who did not hesitate to make certain
admissions, having no idea that his compliance in good faith with their
supervisors instructions and their areas usual practice would be taken
harshly against him;
15.The respondents likewise repeatedly stressed the argument that the herein
complainant held a position of trust and confidence because he was
charged with the care and custody of the employers money and property.
Assuming without admitting that he did, still it will not cure the illegality of
his dismissal. He was faithful in handling the money and the property that
was temporarily given to his care. In fact, he did not steal or use for his own
benefit either money or property of any amount or value belonging to the
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company. The respondents themselves admitted that no pecuniary loss was
incurred by PMFTC because of the complainant;
16. Nevertheless, it is submitted that the herein complainant was not holding a
position of trust and confidence. This is clearly shown by the fact that they
were assigned with immediate supervisors who regularly monitored their
transactions and to whom they reported everything. Moreover, the
respondents themselves stated that they have a department called Internal
Controls (IC) who regularly audited the sales and checks into the salesmens
transactions. These acts of the company negate the concept of trust and
confidence;
19.In fact, the respondents failed to show that the complainant has ever received
a copy or have at least read and understood those policies quoted in their
Position Paper, if such actually existed as they claimed. The Enough is
Enough Memorandum, Implementation of the Updated DSD Credit
Standards, Standard Operating Procedure and Service Level Agreement
Credit Term Deviation and the Standard Operating Procedure and Service
Level AgreementOverdue Deviation stated by the respondents in their
Position Paper were not even mentioned in the NTE and the Notice to
Dismiss or at any time prior to the Position Paper. Said policies were not
heard of by the complainant;
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20.Besides, perusal of the purported company policies would show that they
were never addressed to the salesmen. The repeatedly quoted Memorandum
entitled ENOUGH IS ENOUGH! for example was directed only to Sales
Office Managers, Area Sales Directors, Area Sales Managers, Area Sales
Finance Managers, Manager Finance Controlling, Manager Internal
Controls. The same is true with the other mentioned company Memos. And
so Christian Tayao who was not aware of certain rules cannot be said to have
violated the same, more so cannot be made to face a very harsh consequence
for his non-compliance thereto;
23.In Par. 20.15. of the respondents Position Paper, they acknowledged the
complainants explanation as to why the signature in the invoice for Chasty
Store was not of its owner, Gemma. He explained that it was Gemmas
helper who signed it. But even this was taken against the poor employee,
saying Tellinglycomplainant again admitted that it was the helper who
purchased from him and not the owner. Then respondents started counting
it as violations, to wit: Three (3) counts of issuing an invoice in the name of
the customer who was not the actual party sold to and Three (3) counts of
falsifying, altering or tampering with Company records resulting to eight
(6) violations! (Par. 20.16.);
24.The preceding discussion would only show that the company was fault-
finding the complainant. It is so incredible to expect the store owners
themselves to be present at all times in their establishments during stock
deliveries. Besides, the helper can be considered as the agent of the store
owner in purchasing goods for the store. There is nothing evil or malicious
Reply_Christian Tayaopage 6
to Christian Tayaos act of allowing the helper to sign the invoice for Chasty
Store in behalf of the owner Gemma;
25.The same was true in the next paragraphs of the respondents Position Paper
where they discussed about the Mama Store, wherein Peter, the friend of the
store owner purchased in the latters behalf. Since the transaction happened
four (4) times, this was again taken as Four (4) counts of issuing an invoice
in the name of the customer who was not the actual party sold to and
Four (4) counts of falsifying, altering or tampering with Company
records resulting to eight (8) violations! (Par.20.20.);
26.As to transactions made with Doodz and Babes Store and Big Bite Store
(Par.20.1. to 20.11.) Christian indeed admitted that he sold to walk-in
customers and named the invoice after Doodz and Babes Store with the
owners approval. Again, this is in consonance with the complainants claim
that he thought this was acceptable because it was allowed by their
supervisors. In fact, it was their supervisors who taught them what to do
with the invoice when they sell products to walk-ins. The reason why
Christian never hesitated to admit them is because he did it in good faith.
His belief might have been wrong but he does not deserve a very harsh
punishment of dismissal, especially considering the amounts involved in the
transactions were very minimal (P300.00, P390.00, P7,635.00 and
P3,705.00) and the entire amount was duly and timely remitted;
28.In other words, the extension of double credit, though considered prohibited,
does not carry with it a penalty other than shifting the risk to the sales person
in case the same results to a loss as when the customer fails to pay. The six
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(6) resulting infractions mentioned by the respondents due to the extension
of credits/double invoicing cannot be considered because as previously
stated, the updates on the company rules embodied by a so-called DSD 202,
DSD 204 and Enough is Enough Memorandum were not known to the
complainant, nor has he ever heard of them;
30.The case of NLRC vs. Salgarino1 gives a more profound and elaborated
definition of serious misconduct as ground for dismissal:
32.The same is true in the instant case. It was never alleged or established that
Christian Tayao has wrongful intent in doing what he did, or that he had
ulterior motive or has received immoral considerations. In all his
1 G.R. No. 164376, July 31, 2006.
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transactions, the company has profited (at least pecuniarily) and nobody was
prejudiced or damaged. It was never shown nor alleged that Christian Tayao
did the acts to profit himself or to damage anyone;
33.The complainant also submits that the implication in Par.39 of the Position
Paper of the respondent that his service was patently inimical to his
employers business is totally baseless. There was not a single definite
evidence or even clear statement to show how Christian Tayaos service has
been inimical to PMFTC;
35. As discussed in the foregoing and in the complainants Position Paper, and
even based on the respondents Position Paper, the complainants assailed
acts were not characterized by a wrongful and perverse attitude and the
allegedly violated rules were not clearly communicated to him;
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37.Notwithstanding, complainant does not agree with the respondents
argument that he occupies a position of trust and confidence. Their claim is
contrary to the fact that they assigned an immediate supervisor over the
complainant and salesmen like him to whom they report the conduct of their
business. They also have to timely remit the money they collected from the
sales and submit invoices. Moreover, the respondents also created the
Internal Controls (IC) department to regularly audit the sales and to verify
the salesmens transactions;
38.The repeated ruling of the Supreme Court is worth mentioning in the instant
case, to wit:
41.Not only was the service of NTE orchestrated in a way that complainant
would not have chance to seek proper advice and submit an intelligible
2 Mabeza v. National Labor Relations Commission, citing General Bank and
Trust Co. vs. Court of Appeals, 135 SCRA 569, 578 (1985).
Reply_Christian Tayaopage 10
answer; his hearing was also set in such a short notice. His hearing was set
on August 10, 2016 but the notice was given through a late night text
message (10:29 PM) from his manager on August 9, 2016. The respondents
presented in their Position Paper a Notice of Conference which
complainant never received. Nonetheless, even the notice was dated August
9, 2016. Meaning it was drafted only one day ahead of the scheduled
hearing. The period is too short that Christian Tayao had no chance at all to
seek assistance from a counsel;
42.What was worse about the so-called Clarificatory Conference was that it
was conducted without the presence of an HR personnel. It was conducted
by the manager Bernardo Turno, Jr. who had grudges against Christian
Tayao (as detailed in his Position Paper) and the new sales supervisor
Jennifer Hope Ngo who was the very person who instructed them to accept
walk-ins. There was definitely great intimidation on the part of the humble
employee. Besides, he could not point to his supervisors face that she was
actually the one who taught them wrongfully;
43. The company failed to appreciate the idea that all instructions directed to
salesmen come through the supervisors and all reports go back to the
company through said supervisors. So if the company was fair in its dealings
with the complainant, the latters immediate supervisor must have also been
subjected to investigation being responsible over him. But instead, the
supervisor was even allowed to participate in the hearing as one of the
interrogators. This supervisor now shifts all the blame to his poor sales
agent in order to cover her fault;
45.Even until the Notice of Dismissal was already served to him, Christian
Tayao was still at a loss about why he was being dismissed. That is because
he had no clear idea what wrong he committed. The NTE mentioned so
many violated policies without stating which act of Christian constituted
which particular violation. The NTE even mentioned offenses like theft,
misappropriating or converting company funds, money or property for
Reply_Christian Tayaopage 11
personal gain and benefit, tampering with company records, etc. etc.
Christian had no idea how or when he possibly committed them and which
of his actions were being assailed;
46.Christian asked for the re-investigation of his case several times as discussed
and proved in his Position Paper. But the company did not pay any amount
of attention to his plea. How then can respondents claim that PMFTC gave
the Complainant more than enough opportunity to be heard in compliance
with the requirements of due process? There was no real notice, no real
hearing, no real chance given to prepare his defense, everything was just a
show;
48.The respondents have no basis in stating that Christian has already enjoyed
vacation leaves of more than five (5) days a year. Complainant submits that
he has not because they were hardly allowed to leave from work due to their
busy schedules. PMFTC must have submitted proof of their claim about
Christians leave since the company is the keeper of records. In the absence
of proof to the contrary, the presumption is that Christian is entitled to the
benefits granted him by the Labor laws;
49.As discussed in his Position Paper and in the foregoing, complainant insists
on his right to claim FULL BACKWAGES, SEPARATION PAY,
DAMAGES and ATTORNEYS FEES his dismissal being arbitrary,
malicious oppressive and was not done in accordance with the procedural
requirements of law;
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51.As to the discussions on Par. 68 to 72 of the respondents Position Paper, the
complainant submits that the natural persons named as respondents are
indeed sued as representatives of PMFTC. The complainant does not intend
to make said individuals personally liable for his illegal dismissal, rather the
company which they represent, without prejudice to the Honorable Arbiters
findings to the contrary, especially with regards to the manager
BERNARDO TURNO JR. who was obviously in bad faith and has ill-
motive in orchestrating and carrying out the dismissal of the complainant.
Other reliefs just and equitable under the premises are also prayed for.
RESPECTFULLY SUBMITTED.
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