Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

RICARDO A. ABEJUELA
Complainant,

- versus - NLRC Case No. NCR -12-18333 - 12

Labor Arbiter: ANNI , ARDEN S.

EL TIGRE SECURITY AGENCY

/JOJO POE
Respondents,

x-----------------------------------------------------------x

P O S I T I O N P A P E R

COMPLAINANT, assisted by the Public Attorneys Office, through the

undersigned Public Attorney and unto this Honorable Labor Arbiter,
respectfully submits the following position paper:

PREFATORY STATEMENT

The present case involves a case for money claims against the
respondents to wit:

a. Non-payment of salary/wages (July 1 to 11, 2012)

b. Non - payment of 13th month pay (year 2012)
c. Claim for moral and exemplary damages
d. Claim for Attorneys Fees

THE PARTIES

Complainant RICARDO A. ABEJUELA Filipino, of legal age,

married and with residence at Lot 14 Blk. 24 SS Brigade Village, Western
Bicutan Taguig NCR 1630 where he may be served with notices,
pleadings, orders and other processes of this Honorable Office.

Respondent EL TIGRE SECURITY AGENCY is an entity organized

in accordance with Philippine laws. Engage in the business of providing
security services with business address at 3/f BCC House 537 Shaw Blvd,
Mandaluyong City NCR 1550 where it may be served with notices,
pleadings, orders and other processes of this Honorable Office.

Respondent JOJO POE, is the owner/manager/president of the

respondent entity, is of legal age, Filipino and is holding office at above
given address. The same address where they may be served with notices,
pleadings, orders and other processes of this Honorable Office.

STATEMENT OF THE FACTS

Complainant was hired a security guard on November 5, 1997. As

such, his duty was to secure and to watch over the premises of the clients
of the respondents. His regular work week was for ____ days, with regular
work shifts that start from six in the morning up to two in the afternoon
(6:00AM - 200PM).

He receives a monthly salary of TWELVE THOUSAND FOUR HUNDRED

PESOS (Php 12,400.00) His salary is paid to him every 15th and 30th day of
the month.

In the performance of his work, respondents provides for his

uniform and service firearms.

The difficulties of the complainant started when respondents

required him to go to their office last July 10, 2012 and he was told that he
flunked their neuro psychiatric examination that he took with the testing
center of the respndents. For flunking, he was being suspended for 60
days without pay. Ms. Monday Escano (HR manager) was the one who
relayed to him his order of suspension.
 He tried to mitigate the penalty by pleading to the respondents to
reconsider or to at least shorten his suspension since he was concern
about the sustenance and welfare of his children - which are all still
studying. Unfortunately, respondents wouldnt budge on their decision
and he was forced to serve the suspension.

At this time, he was not paid with his salary for his services he
rendered for the period of July 1 to 11 , 2012.

On September 3, 2012 complainant took a separate neuro

examination in another testing facility in camp crame. It was for the
renewal of his license. After three (3) days of waiting, the results were
already released and he passed it.

On September 5, 2012, he went back to the office to follow up on

his work. Ms. Escano was on a meeting and there was no one to assist him
on his inquiry. Thus, he was told to come back on another day.

September 7, 2012, he went back to the office in order to talk

again to the Ms. Escano. He wanted to re take the neuro exam that he
previously flunked in the testing facility of the respondents so he could
immediately go back to work. He was told by one of the staff there to talk
for Ms. Escano. After waiting up to one thirty in the afternoon, he was
again told to come back on another day.

September 10, 2012, he was finally allowed to re take the neuro

examination in the testing facility of the respondents. He was told that the
result would come out and he should wait for their call. Desperate for
work, he constantly made follow ups on it release. Unfortunately, the
results are strangely taking to long to come out.

Having waited for the result for some time, he remained unable to
work. Complainant last report for duty was on July 0f 2012. Complainant
was thus constrained to go to the National Labor Relations Commission
and inquire about his problem and ask their help.
 Aggrieved, complainant filed this case. The parties having failed
to reach an amicable settlement during the arbitration proceedings, the
Honorable Labor Arbiter required the parties to submit their respective
position papers.

Hence this verified position paper.

ISSUES

I
WHETHER RESPONDENTS ARE LIABLE TO ALL OF
COMPLAINANTS MONEY CLAIMS

The respondent is liable for non -

wages/salary for the period of
July 1 to 11, 2012.
--------------------------------------------------

The respondents failed to pay the wages of the complainant for the
work he performed on July 1 11, 2012. After his suspension the
respondents has been remised on paying him his wages, which is due to
him.

Respondents are thus liable to pay said unpaid wages.

The respondent is liable for non -

payment of 13th month pay for
the year 2012.
--------------------------------------------------

Respondent likes failed to pay the 13th month pay of the

complainant for the year 2012. Complainant should be paid his 13th
month pay since it is undisputable that he has already rendered more
than one month service as required by law for the year 2012.

Presidential Decree No. 851 provides in section one thereof:

 Section1. All employers are hereby required to
pay all their employees receiving a basic salary
of not more than P1, 000 a month, regardless of
the nature of the employment, a 13th-month pay
not later than December 24 of every year.

The Revised Guideline on the Implementation of the 13th Month Pay

Law provides;

xxx With the removal of the salary ceiling of

P1,000.00, all rank-and-file employees are now
entitled to a 13th month pay regardless of the
amount of basic salary that they receive in a
month, if their employers are not otherwise
exempted from the application of P.D. No. 851.
Such employees are entitled to the benefit
regardless of their designation or employment
status, and irrespective of the method by which
their wages are paid, provided, that they have
worked for at least one (1) month during the
calendar year.

Paragraph 4 (a) of the Revised Guidelines on the Implementation

of the 13th Month Pay Law provides as follows:

Minimum amount The minimum amount 13th

month pay required by law shall not be less than
1/12 of the total basic salary earned by an
employee within a calendar year.

Sub-paragraph (b) of the same paragraph thereof provides for the

time of payment as follows:

The required 13th-month pay shall be paid not

later than December 24 of each year. An
employer however, may give to his employees
one half (1/2) of the required 13th-month pay
before the opening of the regular school year
and the other half on or before the 24th of
December of every year. The frequency of
payment of this monetary benefit may be
subject to agreement between the employer
and the recognized/collective bargaining agent
of the employees.
Respondents should be held
liable for moral and
exemplary damages.
------------------------------------------

Complainant should be awarded moral damages because his

unwarranted delay in his re - posting caused him mental anguish and
suffering. Not to mention the tarnish in his reputation which is the direct
result of the actions of respondents when they removed him from his post.

He is likewise entitled to exemplary damages in order to set an

example to respondents who acted oppressively against an employee.

In the recent case of SARONA vs. NLRC, et. al., G.R. No. 185280,
January 18, 2012, it was held (a) that moral damages may be recovered
where the dismissal of the employee was tainted by bad faith or fraud, or
where it constituted an act oppressive to labor, and done in a manner
contrary to morals, good customs or public policy and (b) that exemplary
damages are recoverable if the dismissal was done in a wanton,
oppressive, or malevolent manner.

Further, in the recent case of BRIGHT MARITIME CORPORATION

(BMC)/DESIREE P. TENORIO vs. RICARDO B. FANTONIAL, G.R. No. 165935,
February 8, 2012, moral damages were awarded because the employers
act was tainted with bad faith, considering that respondents Medical
Certificate stated that he was fit to work on the day of his scheduled
departure, yet he was not allowed to leave allegedly for medical
reasons. Further, in the said case, exemplary damages was also imposed
on the employer by way of example or correction for the public good in
view of petitioners act of preventing respondent from being deployed on
the ground that he was not yet declared fit to work on the date of his
departure, despite evidence to the contrary. The Court added: x x x.
Exemplary damages are imposed not to enrich one party or impoverish
another, but to serve as a deterrent against or as a negative incentive to
curb socially deleterious actions. 1

1
http://attylaserna.blogspot.com/2012/06/moral-and-exemplary-damages-in-labor.html
Respondents are liable to
pay attorneys fees because
the complainant was
construed to sue in order to
defend his rights.
------------------------------------------

The Supreme Court laid down the basis of claim for attorneys fees
as follows:

In actions for recovery of wages or where an

employee was forced to litigate and incur
expenses to protect his rights and interest, he is
entitled to an award of attorneys fees. ( Hotel
Mayon and Restaurant vs. Adana , 458 SCRA 609)

Complainants claim for attorneys fees should likewise be granted.

It is clear that by reason of the respondents action or inaction the
complainant was forced to litigate and incur expenses to protect his rights
and interest.

PRAYER

WHEREFORE, it is most respectfully prayed unto this Honorable

Office that the judgment be rendered declaring the respondents liable all
the money claims of the complainant.

Other relief just and equitable under the premises is likewise

respectfully prayed for.

City of Manila, 30th January 2013

RICARDO A. ABEJUELA
Complainant

Department of Justice
PUBLIC ATTORNEYS OFFICE
Manila District Office
4th Floor W. Godino Building
350 Antonio Villegas Street
Ermita, Manila
 By:

Atty. Victoriano T. Agda Jr.

Public Attorney II
Roll Number 55317, May 2, 2008
Lifetime Member Roll No. 010528
MCLE Compliance No. IV - 0011657

Copy furnished:

EL TIGRE SECURITY AGENCY

/JOJO POE 3/f BCC House 537
Shaw Blvd, Mandaluyong City NCR
1550
 Republic of the Philippines )
City of Manila S.C.

VERIFICATION WITH CERTIFICATION AGAINST

NON-FORUM SHOPPING

I, RICARDO A. ABEJUELA, Filipino, of legal age, married, after having

been duly sworn to before the law, do hereby depose and state, that:

1. I am the complainant in the above entitled

case;
2. I have caused the preparation of the
foregoing Position Paper and the contents
thereof are true and correct of our own
knowledge and belief;
3. I have not commenced any other court action
or proceedings involving the same issues in the
Supreme Court, Court of Appeals, or any other
tribunal or agency; to the best of my
knowledge, no such action or proceeding is
pending in the Supreme Court, Court of
Appeals or any other tribunal or agency; If I
should learn thereafter that a similar action or
proceeding has been filed or is pending, I
undertake to report the same fact within five
(5) days therefrom to the court or agency
wherein the original pleading and sworn
certification contemplated herein have been
filed.

RICARDO A. ABEJUELA
Affiant

SUBSCRIBED AND SWORN TO BEFORE me this ___ day of

____________2013 in the City of ____________________.

Adminstering officer
 Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

RICARDO A. ABEJUELA
Complainant,

- versus - NLRC Case No. NCR -12-18333 - 12

Labor Arbiter: ANNI , ARDEN S.

EL TIGRE SECURITY AGENCY

/JOJO POE
Respondents,

x-----------------------------------------------------------x

MOTION TO AMEND COMPLAINT and to

ADMIT ATTACHED POSITION PAPER
COMPLAINANT, assisted by the Public Attorneys Office through the
undersigned public attorney and unto the Honorable Labor Arbiter,
respectfully avers and moves as follows:

1. That the present case is for illegal dismissal with money claims
against the abovementioned respondents;

2. That the present case is set for hearing on the 21st of February 2013
wherein the parties were required to submit their position paper;

3. That there is a need to AMEND the present complaint since a

deeper interview of the client reveals that some of the claims that
he checked in the pro forma complaint given before the NLRC
are not applicable in his case;

4. That the complaint should be AMENDED to EXCLUDE the charge of

ILLEGAL DISMISSAL (CONSTRUCTIVE) and the DELETION of the claim
for UNDER PAYMENT OF SALARY AND WAGES, NON - PAYMENT OF
SEPARATION PAY, and ILLEGAL SUSPENSION;
5. That in order to expedite the proceedings, herein attached to this
motion as ANNEX A is the copy of the POSITION PAPER OF THE
COMPLAINANT (with annexes) which already incorporates the
claims under the amended complaint;

6. That this motion is not intended to delay nor to frustrate the

proceedings before the office of the Honorable Labor Arbiter but
only for the purpose stated above;

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed of the Labor Arbiter that instant Motion for Extension of Time
to position paper be GRANTED to the end that complaint should
be AMENDED to:

a. EXCLUDE the charge of ILLEGAL DISMISSAL and the

b. DELETION of her prior claim for UNDER PAYMENT OF SALARY AND
WAGES, NON - PAYMENT OF SEPARATION PAY, and ILLEGAL
SUSPENSION;

Other reliefs just and equitable are likewise prayed for.

City of Manila, 21st February 2013

RICARDO A. ABEJUELA
Complainant

Department of Justice
PUBLIC ATTORNEYS OFFICE
Manila District Office
4th Floor W. Godino Building
350 Antonio Villegas Street
Ermita, Manila

By:
 Atty. Victoriano T. Agda Jr.
Public Attorney II
Roll Number 55317, May 2, 2008
Lifetime Member Roll No. 010528
MCLE Compliance No. IV - 0011657