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REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION


REGIONAL TRIAL COURT
MAKATI CITY, BRANCH _____

HAPPY BEE INC.,


Plaintiff,

- versus - Civil Case No. -2579-

ALMA T. CUTE
Defendant.

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

COMPLAINT

Happy Bee Inc. by counsel, respectfully states:

Parties

1. Happy Bee Inc. is a corporation duly organized and existing under the
laws of the Philippines and is engaged in the business of processing and selling process
foods. Its principal office is located at 123 Ayala Ave. Makati City. It may be served
processes, orders, and pleadings through the undersigned counsel at the address indicated
below.

2. Defendant Alma T. Cute is of legal age, an Filipino Citizen, with with


office address at 456 Buendia Ave. Makati City, where she may be served summons,
processes, orders, and pleadings.

Material Allegations

3. Defendants Alma T. Cute was formerly Happy Bee Inc. Department Head
for processing, which is one of the most critical positions in Happy Bee Inc. food
processing department. As such, she is in possession of confidential Happy Bee Inc.
information regarding confidential meat processing and its ingredients. The disclosure of
such information to a competitor is extremely prejudicial to Happy Bee Inc..

5. In violation of defendant’s undertakings not to directly or indirectly


divulge the confidential meat processing process information to BIG MAC FOODS.
6. Alma T. Cute was employed by Happy Bee Inc. as Department Head for
Food Processing from September 14, 2008 until March 8, 2010, pursuant to Management
Service Agreement dated October 2, 2008 between Alma T. Cute and Happy Bee Inc.

A copy of the Management Service Agreement is attached as Annex “A”.

7. Clause 13.2 (a) of the Management Letter Agreement provides that Alma
T. Cute should not, without the written consent of Happy Bee Inc. “directly or indirectly
in any capacity (whether as principal agent, partner, employee, shareholder, unit holder,
joint venturer, director, trustee, beneficiary, manager, consultant or adviser) carry on,
advise, provide services to or be engaged, concerned or interested in or associated with
any business or activity which is competitive with any business carried on by “Happy
Bee Inc.” in the Philippines for a period of six (6) months from the date of termination of
the Management Service Agreement. The Management Service Agreement terminated
on March 8, 2010. Hence, Alma T. Cute undertaking not to compete against Happy Bee
Inc. was binding and effective until September 8, 2010.

9. In Del Castillo v. Richmond, 45 Phil 679 (1924), and Ollendorf v.


Abrahamson, G.R. No. 13228, September 13, 1918, the Supreme Court upheld the
validity and enforceability of non-competition clauses similar to the one above.

10. However, around May 2010, while his non-competition obligation to


Happy Bee Inc. was still binding and effective, Alma T. Cute joined Big Mac Foods and
became its Director for Quality Processing. As previously stated, Happy Bee Inc. and
Big Mac Foods are direct competitors since they are engaged in the same business. By
becoming Big Mac’s Director for Quality Processing, Alma T. Cute breached the
Management Service Agreement, particularly her non-competition obligation therein.

11. In a letter dated August 6, 2010, Happy Bee Inc. informed Alma T. Cute
that her employment with Big Mac violated the Management Service Agreement and
reminded her to comply with her obligations thereunder. However, Alma T. Cute did
not reply to this letter.
A copy of this letter is attached as Annex “B”.

12. Employment with Big Mac Foods constitute tortious interference by Alma
T. Cute contractual undertaking not to compete directly or indirectly with Happy Bee
Inc.. This tortious interference makes Alma T. Cute liable for damages under Article
1314 of the Civil Code, which provides that “[a]ny third party who induces another to
violate his contract shall be liable for damages to the other contracting party”.
Damages

19. Due to the breach by Alma T. Cute of her contractual obligations to Happy
Bee Inc., Alam T. Cute should be held liable for actual damages in the amount of at least
One Million Pesos (P1,000,000.00) , or alternatively, nominal damages.

20. Since defendant acted in bad faith by blatantly breaching their clear
contractual obligations to Happy Bee Inc., She should be held liable for moral damages in
the amount of at least One Million Pesos (P1,000,000.00).

21. To serve as an example or correction for the public good, by deterring


similarly situated employees bound by non-competition obligations which are especially
common in food industry, defendant should be held liable for exemplary damages in the
amount of at least One Million Pesos (P1,000,000.00).

22. Defendants’ action constrained Happy Bee Inc. to engage legal counsel to
protect its rights and incur attorney’s fees and litigation expenses in the amount of at least
One Million Pesos (P1,000,000.00) for which defendant should be held liable.
Prayer

WHEREFORE, Happy Bee Inc. respectfully prays that this Honorable Court
render judgment finding:

(i) defendant be liable for (a) at least One Million Pesos


(P1,000,000.00) as actual damages, or nominal damages in the alternative; (b) at
least One Million Pesos (P1,000,000.00) as moral damages; (c) at least One
Million Pesos (P1,000,000.00) as exemplary damages; and

(ii) defendant be liable for (a) at least One Million Pesos


(P1,000,000.00) as attorney’s fees and litigation expenses, and (b) the costs of
suit.

Other just and equitable reliefs are also prayed for.

Makati City , February 1, 2011.

REYES LAW OFFICE


Counsel for Plaintiff
345 Pasong Tamo St.
Makati City

By:

PAUL REYES
IBP OR No. 793849 1/16/2011 – Makati City
PTR OR No. 120349 1/16/2011 – Makati City
Roll No. 5000
MCLE Compliance No. 19038349
VERIFICATION AND CERTIFICATION

I, Moises Adama, Filipino, of legal age, with office address at 527 J.P. Rizal Ave.
Makati City, under oath respectfully state that:

1. I am the Vice President of Happy Bee Inc., the plaintiff in this case, and its
authorized representative, as shown by the attached Secretary’s Certificate.

2. On behalf of Happy Bee Inc., I caused the preparation of and have read the
foregoing Complaint and the factual statements alleged therein are true and correct based
on my personal knowledge and the authentic records of Happy Bee Inc..

3. On behalf of Happy Bee Inc., I certify that it has not commenced any
action or filed any claim involving the same issues in any court, tribunal, or quasi-judicial
agency and, to the best of my knowledge, no such action or claim is pending therein.

4. If Happy Bee or I should I thereafter learn that the same or similar action
or claim has been filed or is pending, I shall report such fact within five (5) days
therefrom to this Honorable Court.

IN TRUTH WHEREOF, I have hereunto set my hand this 1st day of March 2005
at Makati City.

Moises Adama

REPUBLIC OF THE PHILIPPINES )S.S.


MAKATI CITY )

Before me, a notary public in and for the city named above, personally appeared:

Name Community Tax Cert. No. Date and Place of Issue

who is personally known to me and who was identified by me through competent


evidence of his identity to be the same person who presented the foregoing instrument
and signed the instrument in my presence, and who took an affirmation before me as to
such instrument.

Witness my hand and seal this _____ day of _______________ 2011.

Doc. No. ___;


Page No. ___;
Book No. ___;
Series of 2011.
REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF LABOR AND EMPLOYMENT
NATIONAL LABOR RELATIONS COMMISSION
REGIONAL ARBITRATION BRANCH NO. III
Quezon City

Hon. Labor Arbiter Greg M. Nomias

MOISES ADAMA.,
Complainant,

-versus- NLRC RAB Case No. X-01-008-10-D

SMARTY COMMUNICATION,
Alma Uy, Lorna Uy and Fe Uy.

Respondents.
x--------------------------------------------------x

POSITION PAPER

Respondents Smarty Communications, by counsel, respectfully submit this

Position Paper and state:

PREFATORY STATEMENT

The law, in protecting the rights of the laborer, authorizes neither oppression nor

self-destruction of the employer. While the Constitution is committed to the policy of

social justice and the protection of the working class, it should not be supposed that every

labor dispute would be automatically decided in favor of labor.

Every employer has the inherent right to manage or conduct, according to its

discretion, every aspect of employment. This inherent right includes the prerogative to

prescribe reasonable rules and regulations necessary for the conduct of the employer’s

business or concern. [Family Planning Organization of the Phils., Inc. v. NLRC, 207

SCRA 415 (1992)]


Since reasonable rules and regulations are deemed part of the contract of

employment, deliberate disregard or disobedience of the rules cannot be tolerated. It is

for this reason that the Labor Code allows the termination of employment due to willful

disobedience, as an employer cannot be compelled to continue retaining a worker who

has been found guilty of deliberately disregarding company rules and regulations.

Otherwise, employees would make a mockery of the rules and regulations that they are

required to observe. [Nuez v. NLRC, G.R. No. 107574, 28 December 1994; San Miguel

Corporation v. Ubaldo, 218 SCRA 293 (1993); Colgate Palmolive Phils., Inc. v. Ople,

163 SCRA 323 (1988); Lagatic v. NLRC, 285 SCRA 251 (1998)]

PARTIES

1. Complainant Moises Adama. (hereinafter, “complainant”) was a Smarty

Communications Customer Care Representative until he was validly terminated for cause

on 05 November 2010.

2. Respondent Smarty Communications is a corporation duly organized and

existing under the laws of the Philippines with an office at 527 J.P. Rizal, Makati City.

3. Respondent Alama Uy 1 is the Site Director, respondent Lorna Uy 2 is the

Senior Operations Manager - Charter Communications and respondent Fe Uy 3 is the

Human Capital Delivery (“HCD”) Manager, all in Smarty Communications’s Makati

Delivery Center.

STATEMENT OF THE CASE

4. This case is for the alleged illegal dismissal of complainant. Complainant

prays for the payment of salaries/wages, separation pay, a sum of money for violation of

due process and damages. In his Complaint, complainant is not praying for

reinstatement.
STATEMENT OF FACTS

5. Complainant was a Customer Care Representative of Smarty

Communications who was hired on 16 February 2009. As a Customer Care

Representative, complainant’s basic duties included the following: (a) taking calls from

the client’s customers, and (b) identifying, evaluating, and resolving the issues raised by

the customer through established procedures, standards, and guidelines as outlined by

Smarty Communications and its client.

6. On 23 September 2009, Mrs. Nene Adama, complainant’s wife, called to

inform complainant’s Team Leader/Supervisor Ms. Gina Su that she and complainant

were on the way to the hospital because she was about to give birth. Mrs. Nene Adama

asked Smarty Communications if the latter could process the paternity leave for

complainant that night. Believing that complainant’s wife was due to give birth on the

said date, agreed to help process complainant’s paternity leave application, provided Ms.

Gina Su receives the child’s birth certificate as soon as it becomes available.

Attached as Annex “1” is Gina Su’s affidavit.

7. On 24 September 2009, Gina Su waited for complainant’s feedback and

for the latter to submit a copy of the birth certificate or any supporting documents

concerning the hospitalization of his wife. However, Gina Su did not receive any

notification from complainant.

8. On 25 September 2009, Gina Su sent text messages to the mobile phones

of both complainant and his wife to ask them for a copy of their child’s birth certificate,

as well as their marriage contract. Gina Su also tried to call them. However, Gina Su

did not receive any reply from complainant and his wife and Gina Su’s calls were not

answered.
9. On 26 September 2009, Gina Su received a text message from Ms. Nene

Adama asking about the duration of a paternity leave. Gina Su replied that a paternity

leave is seven days, but noted that complainant had to submit their child’s birth certificate

in order for complainant’s paternity leave application to be officially processed. Gina Su

did not receive any reply from complainant or his wife.

10. On 28 and 29 September 2009, complainant did not notify Gina Su or

Smarty Communications’s sick hotline about his continued absences despite knowing

that his paternity leave has not been processed due to his failure to submit the required

documents. Gina Su again called and sent text messages to the mobile phones of both

complainant and his wife, but Gina Su did not receive any reply to his text messages and

his calls were not answered.

11. On 30 September 2009, complainant still failed to report to work and to

submit the required documents.

12. On 1 October 2009, Gina Su learned from the other agents that

complainant’s wife had not yet given birth. Thus, Gina Su sent a text message to

complainant directing him to immediately report for work.

13. On 2 October 2009, complainant reported for work. Gina Su immediately

asked complainant to submit the required documents that will support his absences. Gina

Su also asked complainant for the reason why he did not inform Gina Su that his wife did

not give birth and why he did not report for work even when his wife merely had a “false

alarm.” Complainant did not offer any explanation and simply smiled back at Gina Su.

14. In order to help complainant, Gina Su inquired with Smarty

Communication’s HCD department about the requirements in order for complainant’s

absences to be processed and authorized. The HCD department informed Gina Su that

complainant should present proof that he and his wife went to the hospital on 23
September 2009 and were sent home because his wife merely had a “false alarm”. Gina

Su asked complainant to submit the documents required by the HCD department.

15. Gina Su gave complainant more than one week, or from 7 to 16 October

2009, to present any supporting document, such as a medical certificate, that his wife

went to the hospital on 23 September 2009. However, complainant informed Gina Su

that the hospital refused to give any supporting document.

16. Subsequently, complainant submitted a medical certificate dated 6

October 2009 stating that his wife had a medical check-up on 6 October 2009 and that her

expected date of delivery was 1 October 2009.

Attached as Annex “2” is the medical certificate dated 6 October 2009.

17. After complainant’s wife gave birth on 8 October 2009, complainant again

applied for paternity leave for seven days from 27 October 2009 to 4 November 2009 and

submitted the birth certificate of his child. Complainant also submitted a medical

certificate dated 16 October 2009 stating that he attended to the confinement of his wife

who gave birth on 8 October 2009 and was discharged from the hospital on 10 October

2009.

Attached as Annex “3” is the medical certificate dated 16 October 2009.

18. Gina Su approved complainant’s application for paternity leave for the

period 27 October 2009 to 4 November 2009. However, Gina Su clarified with

complainant that he still needed to provide documentation to support his absences on 23

to 25, 28 to 30 September 2009 and 1 October 2009.

19. On 7 November 2009, Gina Su submitted an incident report to the HCD

department regarding complainant’s unauthorized absences on 23 to 25, 28 to 30

September 2009 and 1 October 2009.


Attached as Annex “4” is the incident report submitted by Gina Su.

20. On 10 November 2009, complainant was served a Notice to Explain

within five calendar days why no disciplinary action, including termination, should be

imposed on him due to his unauthorized absences on 23 to 25, 28 to 30 September 2009

and 1 October 2009.

Attached as Annex “5” is the Notice to Explain served on complainant.

21. On 13 November 2009, complainant submitted his written explanation. In

his written explanation, complainant stated, among others, that (a) he was unable to go to

work on 23 September 2009 because his wife was experiencing pains on her lower back,

which however turned out to be “false alarm”; and, (b) on 24 September 2009, he advised

his wife to visit the doctor, who told her that she may give birth anytime because his

wife’s cervix was dilated for 3 centimeters already.

Attached as Annex “6” is complainant’s written explanation.

22. On 16 November 2009, complainant was served a Notice for

Administrative Hearing to be held on 19 November 2009 at the HCD office so that he

could have additional opportunity to present his side.

Attached as Annex “7” is the Notice for Administrative Hearing served on

complainant.

23. On 19 November 2009, an administrative hearing was conducted with the

following persons present: complainant, Gina Su , Operations Senior Team Lead Oneil

Sy 1, Operations Supervisor Becca Sy 2, Reyan Sy 3, and HCD Coordinator for

Employee Relations Tina Sy 4. During the administrative hearing, the panel gave
complainant a chance to present documents that would support his absences on 23 to 25,

28 to 30 September 2009 and 1 October 2009.

Attached as Annex “8” is the minutes of the administrative hearing.

24. On 21 November 2009, complainant submitted a medical certificate dated

19 November 2009 stating that: (a) Ms. Nene Adam was expected to deliver on 1 October

2009; and, (b) she was already having intermittent uterine contractions on 23 September

2009 with a cervix open at 3 centimeters.

Attached as Annex “9” is the medical certificate dated 19 November 2009.

25. On 27 November 2009, the panel reconvened to discuss and give its

recommendation regarding the case of complainant. The panel noted that Ms. Nene

Adama should have given birth much earlier than 8 October 2009 if her cervix was really

at 3 centimeters on 23 September 2009.

26. Prior to the issuance of a Notice to Explain on 10 November 2009,

complainant was already given numerous written warnings for his repeated violations of

Smarty Communication’s Policies.

26.1. On 15 July 2008, complainant was given a file note for violation of

Smarty Communication’s policy against the use of cellphone on the production

floor.

Attached as Annex “10” is the file note dated 15 July 2008.

26.2. On 12 September 2008, complainant was given a discussion log

for violation of Smarty Communication’s policy against absenteeism.

Attached as Annex “11” is the discussion dated 12 September 2008.


26.3. On 23 September 2008, complainant was given a file note for

violation of Smarty Communication’s policy against “overbreaks” (prolonged

breaks), which he committed in several instances.

Attached as Annex “12” is the discussion dated 23 September 2008.

26.4. On 23 December 2008, complainant was given a show cause

notice for violation of Smarty Communication’s policy against tardiness.

Attached as Annex “13” is the show cause notice dated 23 December

2008.

26.5. On 27 December 2008, complainant was given a second written

warning for violation of Smarty Communication’s policy against tardiness.

Attached as Annex “14” is the second written warning dated 27

December

2008.

26.6. On 27 January 2009, complainant was again given a discussion log

for violation of Smarty Communication’s policy against absenteeism.

Attached as Annex “15” is the discussion log dated 27 January 2009.

26.7. On 15 May 2009, complainant was given a final written warning

for violation of Smarty Communication’s policy against abandonment of post.

Attached as Annex “16” is the final written warning dated 15 May 2009.

Attached as Annex “16-A” is a draft, but clearer copy, of the final written

warning dated 15 May 2009.


26.8. On 16 May 2009, complainant was given a discussion log for

violation of Smarty Communication’s policy against tardiness, which he

committed on 4, 8 and 13 May 2009.

Attached as Annex “17” is the discussion log dated 16 May 2009.

Attached as Annex “17-A” is a draft, but clearer copy, of the discussion log dated

16 May 2009

26.9. On 1 June 2009, complainant was given another discussion log for

violation of Big Smarty Communication’s policy against tardiness, which he

committed on 19 and 30 May 2009.

Attached as Annex “18” is the discussion log dated 1 June 2009.

Attached as Annex “18-A” is a draft, but clearer copy, of the discussion log dated

1 June 2009.

26.10. On 17 July 2009, complainant was given a file note for violation of

Smarty Communication’s policy against tardiness, which he committed on 3, 5

and 12 July 2009.

Attached as Annex “19” is the file note dated 17 July 2009.

26.11. On 21 October 2009, an incident report was submitted for his violation of

Smarty Communication’s policy against leaving work assignment during official

working hours without prior permission from his immediate superior or

department head.

Attached as Annex “20” is the incident report submitted on 21 October

2009.
27. After considering the evidence presented against him, including his

statements and admissions during the administrative hearing, Smarty Communications

terminated complainant’s employment for gross and habitual neglect of duties and willful

disobedience of the lawful orders of his employer, particularly Sections 5.1 and 5.2 of the

Smarty Communications Code of Discipline and Articles II-B.2, II-B.2.a., II-B.3.d., and

II-B.3.b (fifth bullet point) of the Accent and Product Training and Production

Attendance Guidelines for Customer Care Representatives (“Attendance Guidelines”).

Hence, on 15 December 2009, complainant was served a Notice of Decision terminating

his employment. Operations Manager Oneil Sy 1, Becca Sy 2 and Gina Su signed the

Notice of Decision and noted Complainant’s refusal to acknowledge receipt of the same.

Attached as Annex “21” is the Notice of Decision served on complainant.

ISSUES
I.
WHETHER OR NOT COMPLAINANT WAS
ILLEGALLY DISMISSED
II.
WHETHER OR NOT COMPLAINANT IS ENTITLED
TO REINSTATEMENT/SEPARATION PAY AND
BACKWAGES
III.
WHETHER OR NOT COMPLAINANT IS ENTITLED
TO A SUM OF MONEY FOR VIOLATION OF DUE
PROCESS AND DAMAGES
IV.
WHETHER OR NOT INDIVIDUAL RESPONDENTS
CAN BE HELD PERSONALLY LIABLE

DISCUSSION
I.
SMARTY COMMUNICATIONS DISMISSED
COMPLAINANT FOR JUST CAUSES AND AFTER
COMPLIANCE WITH PROCEDURAL DUE
PROCESS REQUIREMENTS.

28. Complainant was not illegally dismissed. On the contrary, Smarty

Communication dismissed complainant for just causes and after according him

procedural due process.


Smarty Communication
dismissed complainant for just
causes.

29. The following are the just causes for termination under Article 282 of the

Labor Code.

“ART. 282. Termination by employer -- An employer may terminate


an employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the employee


of the lawful orders of his employer or representative in
connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in
him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the
person of his employer or any immediate member of his family
or his duly authorized representative; and
(e) Other causes analogous to the foregoing.” [Emphasis supplied]

30. In the case at bar, complainant was validly dismissed for willful

disobedience of the lawful orders of the employer and for gross and habitual neglect by

the employee of his duties.

Complainant willfully disobeyed the


lawful orders of Smarty
Communication in connection with
his work by violating Smarty
Communication’s Code of Discipline
and Attendance Guidelines

31. Smarty Communication was justified in dismissing complainant for

willfully and repeatedly violating Smarty Communication’s lawful directives. In this

regard, it is well-settled that company policies, rules, and regulations are binding and

valid and must be complied with, unless shown to be grossly oppressive or contrary to

law. [San Miguel Corporation v. Ubaldo, 218 SCRA 293 (1993) reiterating Gold City

Integrated Port Services, Inc. v. NLRC, 189 SCRA 811 (1990)] Thus, employees are

expected “to yield obedience to all reasonable rules, orders, and instructions of the

employer” as the “willful or intentional disobedience thereof, as a general rule, justifies


rescission of the contract of service and the peremptory dismissal of the employee.”

[Batangas Laguna Tayabas Bus Co. v. Court of Appeals, 71 SCRA 470 (1976)]

31.1. In San Miguel Corporation v. Ubaldo, 218 SCRA 293 (1993), the

Supreme Court recognized violation of company rules as a valid ground for

dismissal, to wit:

“Deliberate disregard or disobedience of rules by the


employees cannot be countenanced. Whatever may be
the justification behind the violations is immaterial at
this point, because the fact still remains that an
infraction of the company rules has been committed.
Under the Labor Code, the employer may terminate an
employment on the ground of serious misconduct or willful
disobedience by the employee of the lawful orders of his
employer or representative in connection with his work.
Infractions of company rules and regulations have been
declared to belong to this category and thus are valid causes
for termination of employment by the employer.”
[Emphasis supplied]

31.2. Likewise, in Nuez v. NLRC, et al., 239 SCRA 518 (1994), the
Supreme Court ruled:

“Deliberate disregard or disobedience of the rules… is


one ground the Labor Code provides for termination of
employment since an employer cannot be compelled to
continue retaining a worker found guilty of maliciously
committing acts detrimental to its interests. A contrary
rule would render a mockery of the regulations the
employees are required to observe.” [Emphasis
supplied]

32. In this case, complainant’s acts violated Smarty Communication’s Code of

Discipline and Attendance Guidelines.

Attached as Annex “22” is Smarty Communication’s Code of Discipline.

Attached as Annex “23” is Smarty Communication’s attendance Guidelines.

33. Section 5.1 of Smarty Communications’ Code of Discipline penalizes the

commission of “three (3) unauthorized absences within a six (6) month period

irrespective of excuses or reasons.” On the other hand, Section 5.2 provides that

“absence of three (3) consecutive days without notice or authorization shall be considered

abandonment of work.” Due to their very serious nature in light of Smarty


Communications’, commission of acts or omissions penalized under the aforementioned

Sections 5.1 and 5.2 of the Code of Discipline are both classified as a “D” offense or one

that is punishable by employment termination even in the first instance.

34. Complainant also violated various provisions of the Attendance

Guidelines, in particular:

• Article II-B.2: An agent is deemed absent when he/she does not to


report for work within the first four hours of the day.

• Article II-B.2.a: An agent is required to inform the team leader of his


absence within two hours before the shift when he/she cannot come to work.
Failure to do so will be considered an NCNS.1

• Article II-B.3.d: Regular employees who would incur two days UPTU2
in six months shall be issued a File Note. Further occurrences within the six
month period will escalate the warnings to a First written warning, Final
written warning and ultimately resulting to a Termination.

• Article II-B.3.b (fifth bullet point): The medical certificate should be


presented within 48 hours of reporting for work else the absence will be
considered an UPTU.

35. The abovementioned provisions of Smarty Communication’s Code of

Discipline and Attendance Guidelines are: (a) reasonable and lawful; (b) sufficiently

known to complainant; and (c) in connection with the duties that complainant has been

engaged to discharge.

35.1. Complainant’s unauthorized absences sufficiently justify his

dismissal from employment. Smarty Communication is a service provider whose

business is primarily driven by maintaining good relations with its clients. Good

client relationship, in turn, depends on Smarty Communications’ ability to

provide prompt assistance and excellent service to its clients, which would not be

possible if Smarty Communication employees will be absent from work without

notifying the company beforehand.

1
“NCNS” means no call, no show.
2
“UPTU” means unpaid time, unauthorized absence.
35.2. The importance of attendance to Smarty Communication’s

business is highlighted by the following excerpt from Communication’s

Attendance Guidelines:

“All businesses utilize metrics to measure both performance and


profitability. For call centers, attendance is one of them. You
might ask, ‘Why should I care if I don’t report for work…I can’t
possibly make a difference.’ What each and every agent does
actually affects the profitability and productivity of our call center.

Why do you have to keep your attendance within the guidelines?


If you meet the attendance targets, you can meet our client’s
service goals. Even if only one person is not in attendance per day,
it has a significant effect on service and revenue. Lost revenue
affects you personally because if you have more net revenue, the
more money there is available for benefits, incentives, and
company events. Aside from the revenue, an absence would
contribute to higher occupancy meaning more workload for those
who are not absent as well as longer waiting times for our
customers. So when considering an absence, always keep in mind
that one person does make a difference and directly affects the
company, our clients, their customers, other agents and you.”

35.3. Communication’s Code of Discipline and Attendance Guidelines,

which contain the provisions violated, were known to complainant. Complainant

was furnished a copy of Communication’s policies, including Communication’s

Code of Discipline and Attendance Guidelines on 6 September 2009.

Attached as Annex “24” is complainant’s written acknowledgement of his

receipt of Communication’s policies.

35.4. The provisions violated by complainant pertain to his duties as a

Communication’s Customer Care Representative. These rules are of particular

significance in the performance of complainant’s duties because they are directed

against employees, like complainant, whose attendance directly affects his team’s

performance, the client’s service goals and Communications productivity.

36. Based on the foregoing, it is also clear that complainant was validly

dismissed for willfully disobeying the lawful orders of her employer.


Complainant was guilty of gross and
habitual neglect of his duties as a
customer service representative

37. Aside from the foregoing violations of Communications’ rules,

complainant also violated Section 3.17 of the Code of Discipline which penalizes “gross

or habitual neglect in the performance of assigned duties.” Section 3.17 is classified as a

“D” offense or one that is punishable by employment termination.

38. In Valiao v. Court of Appeals, G.R. No. 146621, 30 July 2004, the

Supreme Court held that habitual absenteeism and tardiness constitute gross and habitual

neglect of duties that justified the employee’s termination of employment. Among the

repeated violations of Communication’s policies committed by complainant pertains to

his habitual absenteeism and tardiness.

39. In this regard, prior to the issuance of a Notice to Explain on 10 November

2009, complainant was already given numerous written warnings for his various

violations of Communications’ policies.

39.1. On 15 July 2008, complainant was given a file note for violation of

Communication’s policy against the use of cellphone on the production floor.3

39.2. On 12 September 2008, complainant was given a discussion log

for violation of Communication’s policy against absenteeism.4

39.3. On 23 September 2008, complainant was given a file note for

violation of Communication’s policy against “overbreaks” (prolonged breaks),

which he committed in several instances.5

39.4. On 23 December 2008, complainant was given a show cause

notice for violation of Communication’s policy against tardiness.6


3

4
5

6
39.5. On 27 December 2008, complainant was given a second written

warning for violation of Communication’s policy against tardiness.7

39.6. On 27 January 2009, complainant was again given a discussion log

for violation of Communication’s policy against absenteeism.8

39.7. On 15 May 2009, complainant was given a final written warning

for violation of Communication’s policy against abandonment of post.

39.8. On 16 May 2009, complainant was given a discussion log for

violation of Communication’s policy against tardiness, which he committed on 4,

8 and 13 May 2009.

39.9. On 1 June 2009, complainant was given another discussion log for

violation of Communication’s policy against tardiness, which he committed on 19

and 30 May 2009.

39.10. On 17 July 2009, complainant was given a file note for violation of

Smarty Communication against tardiness, which he committed on 3, 5 and 12 July

2009.

39.11. On 21 October 2009, an incident report was submitted for his

violation of Smarty Communication’s policy against leaving work assignment

during official working hours without prior permission from his immediate

superior or department head.

40. Undoubtedly, complainant was validly dismissed for gross and habitual

neglect of his duties.

8
Smarty Communication’s
accorded complainant procedural
due process.

41. For dismissal based on just cause, procedural due process merely requires

the employer to: (a) serve on the employee a written notice which apprises the employee

of the particular acts or omissions for which the dismissal is sought; (b) provide the

employee an opportunity to be heard and to respond to the charge; and (c) serve on the

employee a subsequent written notice of termination, if the employer decides that there is

just cause for termination after considering the employee’s explanation. [Nitto

Enterprises v. NLRC, G.R. No. 114337, 29 September 1995; Tingson v. NLRC, G.R. No.

84702, 18 May 1990; Ruffy v. NLRC, G.R. No. 84193, 15 February 1990]

42. Smarty Communication complied with the requirements of procedural due

process before dismissing complainant. The records clearly show that Smarty

Communication (a) duly notified complainant of the acts for which he may be subjected

to disciplinary action, (b) gave him the opportunity to be heard, and (c) notified him of

Smarty Communication’s decision.

42.1. On 10 November 2009, complainant was served a Notice to Explain

within five calendar days why no disciplinary action, including termination,

should be imposed on him due to his unauthorized absences on 23 to 25, 28 to 30

September 2009 and 1 October 2009.

42.2. On 13 November 2009, complainant submitted his written explanation.

42.3. On 16 November 2009, complainant was served a Notice for

Administrative Hearing to be held on 19 November 2009 at the HCD office so

that he could have additional opportunity to present his side.

42.4. On 19 November 2009, an administrative hearing was held.


42.5. On 15 December 2009, complainant was served a Notice of Decision
terminating his employment for gross and habitual neglect of duties and willful
disobedience of the lawful orders of his employer, particularly Sections 5.1 and 5.2 of the
Smarty Communications Code of Discipline and Articles II-B.2, II-B.2.a., II-B.3.d., and
II-B.3.b (fifth bullet point) of the Attendance Guidelines.

43. Based on the foregoing, it is clear that Smarty Communication gave

complainant sufficient opportunity to explain his side before deciding his case and

Smarty Communication faithfully complied with procedural due process requirements

under the Labor Code and jurisprudence.

II.
COMPLAINANT IS NOT ENTITLED TO
REINSTATEMENT, BACKWAGES AND
SEPARATION PAY.

44. The remedy of reinstatement or separation pay in lieu of reinstatement is

based on the premise that an employee’s dismissal was illegal [Santos v. NLRC, G.R. No.

76721, 21 September 1987]. Moreover, complainant did not pray for reinstatement in his

complaint. Likewise, an award for the payment of backwages presupposes that an

employee has been illegally dismissed due to the unlawful act of the employer or the

latter’s bad faith [Reyes v. Minister of Labor, G.R. No. 48705, 9 February 1989]. As

previously discussed, Smarty Communication dismissed complainant for just causes and

after compliance with procedural due process. Clearly, complainant is not entitled to

reinstatement/separation pay in lieu of reinstatement and backwages.

Attached as Annex “25” is the Complaint filed by complainant on 27 January

2010.

III.

COMPLAINANT IS NOT ENTITLED TO A SUM OF


MONEY FOR VIOLATION OF DUE PROCESS AND
TO DAMAGES.

45. In his Complaint, complainant is asking for the amount of PhP20,000 for

the alleged violation of due process and PhP450,000 as damages. However, considering

that complainant was not illegally dismissed and Smarty Communications dismissed him
with cause after compliance with procedural process, complainant is not entitled to the

aforementioned sum of money and damages.

As discussed above, Smarty Communications faithfully complied with procedural

and substantive due process requirements in terminating the employment of complainant.

Hence, he is not entitled to the amount of PhP20,000 that he is claiming for the alleged

violation of due process.

46. Furthermore, even assuming arguendo that complainant was illegally

dismissed, complainant is still not entitled to damages. Under Article 2220 of the Civil

Code, moral damages may be awarded only where the defendant or respondent acted

fraudulently or in bad faith.

46.1. In Primero v. Intermediate Appellate Court, 156 SCRA 435 (1987),

the Supreme Court held:

“Moral damages would be recoverable, for example, where the


dismissal of the employee was not only effected without authorized
cause and/or due process - for which relief is granted by the Labor
Code - but was attended by bad faith or fraud, or constituted an act
oppressive to labor, or was done in a manner contrary to morals,
good customs or public policy - for which the obtainable relief is
determined by the Civil Code (not the Labor Code). Stated
otherwise, if the evidence adduced by the employee before the
Labor Arbiter should establish that the employer did indeed
terminate the employee's services without just cause or without
according him due process, the Labor Arbiter's judgment shall be
for the employer to reinstate the employee and pay him his
backwages, or exceptionally, for the employee to receive separation
pay. These are reliefs expressly prescribed by the Labor Code. But
any award of moral damages obviously cannot be based on the
Labor Code but should be grounded on the Civil Code. Such an
award cannot be justified solely upon the premise (otherwise
sufficient redress under the Labor Code) that the employer fired
his employee without just cause or due process. Additional facts
must be pleaded and proven to warrant the grant of moral
damages under the Civil Code, these being, to repeat, that the act
of dismissal was attended by bad faith or fraud, or was oppressive
to labor, or done in a manner contrary to morals, good customs, or
public policy; and of course, that social humiliation, wounded
feelings, grave anxiety, etc., resulted therefrom.” [Emphasis
supplied]

46.2. Bad faith or fraud, however, is never presumed. This must be proved

clearly and convincingly. [Suario v. Bank of the Philippines Islands, G.R. No. L-
50459, 25 August 1989; Fernando v. Sto. Tomas, 234 SCRA 546(1994)] In this

case, no evidence was presented to establish bad faith or fraud on the part of the

respondents.

47. There being no legal or factual basis for moral damages, complainant is

likewise not entitled to exemplary damages. [Dee Hua Liong Electrical Equipment Corp.

v. Reyes, 145 SCRA 713 (1985); Cocoland Development Corp. v. NLRC, 259 SCRA 51

(1996)] Exemplary damages cannot be recovered as a matter of right. [Article 2233, Civil

Code] In contracts and quasi-contracts, exemplary damages may be awarded only if the

respondent or defendant acted in a wanton, fraudulent, oppressive or malevolent manner.

[Article 2232, Civil Code; Garcia v. National Labor Relations Commission, G.R. No.

110518, 1 August 1994] In this case, there is no proof of such conduct on the part of

respondents.

IV.

INDIVIDUAL RESPONDENTS CANNOT BE HELD


PERSONALLY LIABLE.

48. Assuming, without admitting, that complainant was illegally dismissed,

individual respondents Alama Uy 1, Lorna Uy 2, and Fe Uy 3 cannot be held personally

liable for complainant’s claims.

48.1. In EPG Construction Co., Inc. v. Court of Appeals, 210 SCRA 230

(1992), the Supreme Court held that:

“The President of the corporation cannot be held solidarily


liable personally with the corporation absent evidence of malicious
acts by the former.”

48.2. In Businessday Information Systems and Services, Inc. v. NLRC, 221

SCRA 9, the Supreme Court ruled that:

“There is merit in the contention of petitioner Raul Locsin


that the complaint against him should be dismissed. A corporate
officer is not personally liable for the money claims of discharged
corporate employees unless he acted with evident malice and bad
faith in terminating their employment.” [Emphasis supplied]

48.3. Individual respondents Alama Uy 1, Lorna Uy 2, and Fe Uy 3 did

not act with malice or bad faith. Indeed, complainant was validly dismissed for

just cause and after compliance with procedural due process requirements. Thus,

individual respondents cannot be held personally liable for complainant’s claims.

RESERVATION

Respondents expressly reserve their right to file responsive pleadings and to

adduce additional evidence, documentary and testimonial, and/or controvert

complainant’s allegations and evidence, insofar as they may be material to the

determination and resolution of the instant case.

PRAYER

WHEREFORE, it is respectfully prayed that the case be dismissed for lack of merit.

Respondents likewise pray for other just and equitable reliefs.

Makati City, ___ June 2010.

REYES LAW OFFICE


Counsel for Plaintiff
345 Pasong Tamo,
Makati City

By:

PAUL REYES
IBP OR No. 793849 1/16/2010 – Pasay City
PTR OR No. 120349 1/16/2010 – Pasay City
Roll No. 70000
MCLE Compliance No. 19038349
Copy Furnished:

Mr Moise Adama.
Complainant
527 J. P. Rizal St., Makati City

EXPLANATION

Due to distance, personal service is not practicable; thus, this Position Paper is
filed by registered mail and courier and is and served on complainant’s counsel by
registered mail.

PAUL REYES

REPUBLIC OF THE PHILIPPINES


DEPARTMENT OF LABOR AND EMPLOYMENT
NATIONAL LABOR RELATIONS COMMISSION
REGIONAL ARBITRATION BRANCH NO. III
Quezon City

Hon. Labor Arbiter Greg M. Nomias

MOISES ADAMA,
Complainant,

-versus- NLRC RAB Case No. X-01-008-10-D

SMARTY COMMUNICATION,
Alma Uy 1, Lorna Uy 2, Fe Uy 3.

Respondents.
x--------------------------------------------------x

REPLY
[TO COMPLAINANT’S POSITION PAPER]

Respondents, by counsel, respectfully state:

1. Complainant asserts in his Position Paper dated 26 April 2010 that: (a)

Smart Communication has no valid ground to dismiss him; (b) Smart Communication did

not comply with the requirements of procedural due process before dismissing him; (c)

he is entitled to the following: (i) full backwages from the time of his termination up to
the date of actual reinstatement; (ii) reinstatement without loss of seniority rights and/or

diminution in rank or diminution in benefits, or separation pay in lieu of reinstatement;

(iii) attorney’s fees; and (iv) moral and exemplary damages.9 Complainant’s assertions

have no merit.

2. Respondents have fully addressed the aforementioned allegations in their

Position Paper. However, in order that this Honorable Office will not be misled,

respondents will traverse them in this Reply.

I. Smart Communication
validly dismissed
complainant for just cause
after being afforded due
process.

3. Complainant was not illegally dismissed. On the contrary, Smart

Communication dismissed complainant for just causes after according her procedural due

process.

Smart Communication validly


dismissed complainant from
employment for serious
misconduct and for willfully
disobeying its lawful orders in
connection with complainant’s
work.

4. Complainant committed serious misconduct.

4.1 For misconduct to be serious and therefore a valid ground for

dismissal, it must be:

(a) of grave and aggravated character and merely trivial or unimportant;10 and

(b) connected with the work of the employee.

5. The offenses committed by complainant (i.e., call avoidance, rudeness and

sarcasm to the customer) are of grave and aggravated character and intimately connected

10
with her work as a Smart Communication Escalations Desk Agent. They amount to

serious misconduct, which justify his dismissal from employment.

5.1. A transcription of the relevant portion of the 8 April 2009 call

recording clearly shows that complainant kept on interrupting the customer with

a sarcastic statement, “no it’s not”, while the customer was explaining his side.

Complainant also rudely ended the call before the customer hung up when the

customer asked if she can talk to another agent. Complainant also did not respond

when the customer tried to get complainant’s attention.11

6. The offenses committed by complainant constitute serious misconduct in

light of the nature of Smart Communication’s business. In an industry whose core

business is to provide quality service to international clients through outbound or inbound

telephone calls, Smart Communication necessarily depends on its customer service

representatives, such as an Escalations Desk Agent (which is the position held by

complainant) to handle calls in accordance with company policy. All calls are

expected to be handled with utmost promptness, courtesy and competence, with the end

view of satisfactorily addressing the customers’ needs, concerns and queries. However,

call avoidance immediately forecloses the possibility of providing such assistance to

clients. Worse, it jeopardizes Smart Communication’s business and damages the good

relations between Smart Communication and its clientele.

7. The offenses were deliberately committed by complainant.

7.1. The call recording of 8 April 2009 call clearly shows that

complainant kept on interrupting the customer, who was trying to explain his side,

by rudely saying, “no, it’s not!”. Furthermore, because complainant was not

helpful and rude to the customer, customer asked if he can speak to another agent

to which complainant asked with sarcasm, “and why?”. Finally, when

complainant informed the customer that the latter should dial the same number if

she wants to speak to another agent, complainant “disposed” (i.e., released) the
11
call even when the customer was still talking to the complainant and was trying to

get complainant’s attention.

8. Thus, it is unmistakable that complainant is guilty of serious misconduct

which justifies her dismissal from employment.

9. Complainant also willfully disobeyed the lawful orders of Smart

Communication in connection with his work.

9.1. In particular, complainant’s rudeness and discourtesy towards

customers and his commission of call avoidance violated Smart Communication’s

Code of Discipline, Employees’ Handbook and Memorandum on Call Violation.

10. Call avoidance is considered a violation of Sections 2.12 and 2.13 of

Smart Communication’s Code of Discipline. In fact, Section 2.13 penalizes, among

others, “damaging or jeopardizing company interest through acts or omissions affecting

clients, visitors, customers, and other business friends of the company.” Commission of

acts or omissions penalized under Section 2.13 of the Code of Discipline is classified as a

“D” offense or one that is punishable by employment termination even in the first

instance.12

10.1. Complainant, in his Position Paper, claims that the violations

committed by complainant constitute only a violation of Section 2.12 of TeleTech’s Code

of Discipline and not Section 2.13.13 As explained above, all calls are expected to be

handled with utmost promptness, courtesy and competence, with the end view of

satisfactorily addressing the customers’ needs, concerns and queries. Call avoidance and

rudeness and discourtesy to customers jeopardize Smart Communication’s business and

damages the good relations between Smart Communication and its clientele. Hence, the

acts of complainant constituted a violation of both Sections 2.12 and 2.13 of Smart

Communication’s Code of Discipline.

12

13
11. Also, as emphasized in Smart Communication Employees’ Handbook, call

avoidance is a ground for termination of employment:

“Disconnecting Telephone Calls/Call Avoidance

For agents, once a customer is connected to your telephone


line, it is your responsibility to handle the call completely
and to the best of your ability. Disconnecting any
telephone call or any act of avoidance is a ground for
termination.

Call avoidance can involve, but is not limited to:

• Releasing the call;


• Cold transfer;
• Jumping queue;
• Putting the call on hold for a long period of
time without valid reason; or
• Not answering/attending the call.”
14
[Emphasis ours]

12. The commission of a call violations, such as rudeness, sarcasm and

discourtesy to customers and call avoidance, are penalized under TeleTech’s

Memorandum on Call Violations dated 3 March 2008.15 Complainant’s rudeness and

discourtesy towards customers and his commission of call avoidance constituted the

following call violations, which fall under the Zero Tolerance Policy of Smart

Communication:

• Customer Mistreat: Profanity, Discourteous, Sarcasm,


Disrespectful/Discourteous, Argumentative, Condescending

• Call dropping

13. Aside from the foregoing violations of Hogwarts’ rules, complainant also

violated Section 3.17 of the Code of Discipline which penalizes “”gross or habitual

neglect in the performance of assigned duties.” Section 3.17 is classified as a “D”

offense or one that is punishable by employment termination.

13.1. Complainant alleges that he never neglected her duties as a

customer service representative. He claims that the fact that he never received a

memorandum as to neglecting his assigned task is an evidence of her being

14

15
diligent in her duties.16 On the contrary, complainant was already given several

written warnings, including two final written warnings, for various violations of Smart

Communication policies prior to the commission of call avoidance on 8 April 2009 and

the issuance of a Notice to Explain on 14 April 2009.17

• On 29 April 2008, complainant was again given a written warning for


violation of company policy against “overbreaks”;18

• On 1 August 2008, complainant was given a written warning for violation


of company policy against the use of cellphone on the production floor;19

• On 9 May 2009, complainant was again given a final written warning for
violating the Critical Working Day Memorandum for being on no call/no
show (i.e., taking unauthorized absence without any notice to her
supervisor) on a critical working day;20 and

• On 14 May 2009, complainant placed herself on “Aux” usage to be able to


leave the work premises and do a personal errand outside the office, which
was admitted by complainant during the 10 August 2009 administrative
hearing.21

• On 15 May 2009, complainant was given a final written warning for


violation of the Mobile Phone and Information Security Policy, which
prohibits the use of a mobile phone in a restricted area.22

13.2. The foregoing instances belie the complainant’s allegations that he

never neglected his duties and that he never received a memorandum as to neglecting his

assigned task.

14. The foregoing provisions of Smart Communication’s Code of Discipline,

Employees’ Handbook and Memorandum on Call Violation are: (a) reasonable and

lawful; (b) sufficiently known to complainant; and (c) in connection with the duties that

complainant has been engaged to discharge.

14.1. As an employer, Smart Communication’s has the right to regulate,

according to its discretion, every aspect of employment. This inherent right

includes the right to prescribe reasonable rules and regulations necessary for the

conduct of the employer’s business or concern.23 An example of these reasonable

16
17
18

19
20

21
22

23
rules and regulations are Smart Communication’s Code of Discipline, Employees’

Handbook and Memorandum on Call Violation. These rules set the benchmark

for the conduct of Smart Communication employees. It ensures that Smart

Communication employees do not only perform their work competently, but also

act professionally towards customers. Also, the penalties imposed under the

foregoing rules of Smart Communication are reasonable considering that Smart

Communication is a service provider whose existence hinges on client

satisfaction, which, in turn, can only be achieved by having professional,

competent, and able employees.

15. Smart Communication Employees’ Handbook, Code of Discipline, and

Memorandum on Call Violation, which contain the provisions violated, were known to

complainant. Complainant is also aware that call avoidance violates company policy. At

any rate, complainant was furnished a copy of Smart Communication Code of Discipline

on 6 November 2006 and Memorandum on Call Violation on 11 March 2008.24

16. Hence, it is clear that complainant willfully disobeyed the lawful orders of

Smart Communication’s in connection with his work, which justifies his dismissal from

employment.

Smart Communication’s accorded


complainant procedural due
process.

17. For dismissal based on just cause, procedural due process merely requires

the employer to: (a) serve on the employee a written notice which apprises the employee

of the particular acts or omissions for which the dismissal is sought; (b) provide the

employee an opportunity to be heard and to respond to the charge; and (c) serve on the

employee a subsequent written notice of termination, if the employer decides that there is

just cause for termination after considering the employee’s explanation.

24
18. Contrary to complainant’s claim, Smart Communication’s complied with

the requirements of procedural due process before dismissing her. The records clearly

show that Smart Communication: (a) duly notified complainant of the acts for which he

may be subjected to disciplinary action, (b) gave her the opportunity to be heard, and (c)

notified her of Smart Communication’s decision.

18.1. On 14 April 2009, Smart Communication’s served complainant a

Notice to Explain. He was given five (5) days to explain why he should not be

terminated for violating company policy. This constitutes the first notice required

by law, which sets forth the particular acts or omissions for which complainant

may be terminated.25

18.2. On 15 April 2009, complainant submitted his written explanation.26

18.3. On 10 August 2009, Smart Communication’s conducted an

administrative hearing to give complainant further opportunity to present his

side.27

18.4. Only after providing complainant ample opportunity to be heard,

did Smart Communication’s decide to terminate the services of complainant. In

this connection, a Notice of Decision regarding complainant’s termination was

served on and duly received by complainant 22 September 2009.28 This is the

subsequent notice mandated by the requirements of procedural due process.

19. Undoubtedly, complainant’s claim that Smart Communication’s did not

comply with procedural due process requirements is a blatant lie.

II. Complainant is not entitled


to reinstatement and
backwages

25

26
27

28
20. The remedy of reinstatement and separation pay in lieu of reinstatement is

based on the premise that an employee’s dismissal was illegal. Likewise, an award for the

payment of backwages presupposes that an employee has been illegally dismissed due to

the unlawful act of the employer or the latter’s bad faith.29 However, as previously

discussed, Smart Communication’s dismissed complainant for just cause and after

compliance with procedural due process. As such, complainant is not entitled to

reinstatement or separation pay and backwages.

21. Moreover, complainant did not pray for reinstatement in her complaint.

Complainant even manifested during the mandatory conference held on 26 February

2010 that she is no longer interested to be reinstated to her former position. Therefore, he

is not entitled to reinstatement or separation pay in lieu of reinstatement.

III. Complainant is not entitled to


moral and exemplary damages
and attorney’s fees.

22. Dismissal from employment, alone, does not automatically entitle an

employee to moral and exemplary damages and attorney’s fees.

23. In Tumbiga v. National Labor Relations Commission30, the Supreme Court


held that the “settled rule is that an employer may be held liable for damages only if the
dismissal of the employee was attended by evident bad faith or fraud or was oppressive to
labor or done in a manner contrary to morals, good customs or public policy.” In this
case, however, except for complainant’s hollow allegation that he was terminated for a
“flimsy reason” and without due process,31 no evidence was presented to establish bad
faith or fraud on the part of the respondents. Mere allegation is not proof.

24. Since complainant is not entitled to moral damages, he should likewise not
be entitled to exemplary damages. The Supreme Court in Cocoland Development Corp.
v. NLRC32 and Dee Hua Liong Electrical Equipment Corp. v. Reyes33 stressed that
exemplary damages may not be recovered where the party involved is not entitled to
moral or compensatory damages.

29
30

31
32

33
25. As to complainant’s claim for attorney’s fees, such claim is equally not
justified. In termination cases, attorney’s fees are not recoverable where there is no
sufficient showing, and there is none here, of bad faith on the part of the employer.34 The
Supreme Court held thus:

“Article 2208 of the Civil Code allows attorney’s fees to be awarded by a


court when its claimant is compelled to litigate with third persons or to
incur expenses to protect his interest by reason of an unjustified act or
omission of a party for whom it is sought. We restate that attorney’s fees
is not recoverable where there is no sufficient showing of bad faith.”35

As there was no bad faith on the part of Smart Communication, there is no basis

for awarding attorney’s fees to complainant.

26. All told, the complaint for illegal dismissal should be dismissed for lack of

merit.

PRAYER

WHEREFORE, it is respectfully prayed that this Reply be noted and the case be

dismissed for lack of merit.

Respondents likewise pray for other just and equitable reliefs.

Makati City, __ June 2010.

REYES LAW OFFICE


Counsel for Plaintiff
345 Pasong Tamo
Makati City

By:

PAUL REYES
IBP OR No. 793849 1/16/2010 – Pasay City
PTR OR No. 120349 1/16/2010 – Pasay City
Roll No. 5000
MCLE Compliance No. 19038349

Copy Furnished:

34

35
Atty. Mano Teres
Counsel for Respondent
Mayo Stock Exchange Centre
Ayala Center, Makati City

Moises Adama
Complainant
527 J.P. Rizal, Makati City

Explanation

Due to distance, personal service is not practicable; thus, this Position Paper is
filed by registered mail and courier and is and served on complainant’s counsel by
registered mail.

PAUL REYES

Republic of the Philippines


Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
Quezon City

Hon. Labor Arbiter Greg M. Nomias

Moises Adama,
Complainant,
- versus - NLRC RAB Case No. X-01-008-10-D

SMARTY COMMUNICATION.

Respondents.
x--------------------------------------------------x

REJOINDER

Respondents Smarty Communication, Alma Uy 1 (“Alma 1”), LornaUy 2 (“Lorna

2”) and Fe Uy 3 (“Fe 3”), by counsel, respectfully ask for leave to submit

this Rejoinder and state:

Complainant’s claim in her original


and amended Complaints that he was
illegally dismissed on 5 May 2010,
has no basis.
____________________________________

1. Complainant accuses respondents of making a “false and malicious”

allegation in paragraph 4 of their Reply in connection with complainant’s

claim in his Complaint dated 27 May 2010 that he was a victim of illegal

dismissal on 5 May 2010. Complainant claims that he merely intended

to file an illegal suspension complaint on 27 May 2010, but the NLRC

clerk asked her to nevertheless include illegal dismissal among his

causes of action. [Complainant’s Reply, pp. 1-2] Complainant’s claims

reveal that he will allege and argue anything just to bolster her frivolous

complaint. In any case, complainant’s own claims undoubtedly show

that his Complaint for “actual dismissal” supposedly on 5 May 2010

should be dismissed.
1.1. A graduate of the Arellano University, complainant could not have been

confused about the difference between “suspension” and “dismissal”. In this

regard, it is also obvious that complainant was seeking legal advice as early as 7

May 2010 (when he sent her written explanation / demand letter and asked to be

compensated “for the serious anxiety, sleepless nights, and embarrassment” that

respondent Lorna 2 supposedly caused her). It would therefore be absurd to

assume that complainant did not understand the import of alleging in her

Complaint dated 27 May 2010 that he was subjected to “actual dismissal”.

1.2. It should also be noted that complainant even reiterated in his Amended

Complaint dated 19 July 2010 that he was a victim of “actual dismissal” on “May

5, 2010”. By the time she filed an Amended Complaint, it cannot be disputed that

he was already being assisted by counsel. Complainant therefore cannot claim

that he was merely influenced by the NLRC clerk to allege that he was dismissed

on 5 May 2010.

1.3. Complainant now tries to avoid the consequences of her flip-flopping

positions (i.e., “actual dismissal” on 5 May 2010 as stated in her original and

amended complaints vis-à-vis constructive dismissal that “ripened into an actual

dismissal by virtue of the events that transpired on June 22, 2010” as stated in his

Position Paper) after respondents have demonstrated that he was not dismissed on

5 May 2010 and was even reporting for work and performing his duties as

Financial Language Editor as recently as 22 June 2010.

1.4. Complainant’s frivolous complaint should therefore be dismissed based on

her own admission that he was merely under preventive suspension on 5 May

2010. [Complainant’s Reply, pp. 1-2] Complainant cannot be allowed to make

allegations and raise arguments that are not consistent with his Complaint dated

27 May 2010 and Amended Complaint dated 19 July 2010. Indeed, Rule V,

Section 7 of the 2005 Revised Rules of Procedure of the NLRC provides:


“SECTION 7. SUBMISSION OF POSITION PAPER AND
REPLY.

b) The position papers of the parties shall cover only those claims
and causes of action raised in the complaint or amended
complaint, excluding those that may have been amicably settled,
and accompanied by all supporting documents, including the
affidavits of witnesses, which shall take the place of their direct
testimony. x x x x

d) In their position papers and replies, the parties shall not be


allowed to allege facts, or present evidence to prove facts and any
cause or causes of action not referred to or included in the original
or amended complaint or petition.”

2. Complainants’ Reply further shows that his claim of being dismissed

effective 5 May 2010 was simply based on the following: (a) respondents dared to

question his Sick Leave Applications for 19, 29 and 30 April 2010; (b) he was given a

show cause notice asking him to explain why he should not be held liable for dishonesty

and fraud in connection with his Sick Leave applications; and, (c) he was “illegally

suspended”. [Complainant’s Reply, pp. 1-7] To be sure, complainant’s own assertions

reveal that he was not dismissed – whether actually or constructively.

Sick Leave Applications

3. Complainant’s stubbornness and lack of regard for reasonable directives

of his managers is further shown by him claim that “there is no basis for the assertion of

Respondent, Lorna 2, in Paragraph 7 of [respondents’ Reply] stating that complainant did

not call him regarding her sick leave request” on 19 April 2010. Complainant states that

he “completely complied” with the requirements of the company’s handbook that

notification for sick leaves may be made “by phone, email, or text.” [Complainant’s

Reply, p. 2] Complainant apparently believes that he can just disregard Lorna 2’s specific

instructions that “an employee who is taking an unscheduled leave should call to properly

explain the reason for the absence and properly turn over any pending work”. While

seemingly trivial, this issue explains why this case came about. Complainant arrogantly

wants to deprive respondents of their right to validly exercise management prerogatives

by twisting facts in his favor (e.g., he can notify her manager about her absences in

whatever manner that he wanted, respondents should not have dared question her sick

leave applications because these are his “entitlements”).


4. Complainant asserts that there is no mention in the company handbook

that medical tests do not qualify as Sick Leaves. In this regard, complainant presents the

Affidavit of former Quality Analyst While Gina Su, who states that “[t]he problem

arising from this situation was clearly the result of an omission on the part of the

company”, since “as far as [Gina Su’s] knows, it has been communicated to us from the

start that sick leaves can be used for medical tests or any other scheduled medical

appointments. If this policy has been changed, the change has not been formally

communicated to the employees as I write this. At one instance, one of my colleagues

asked for a copy of the revised company guidelines, Alma 1’s surprised response was

‘Ay, di pa ba kayo nabibigyan?’ (Oh, you haven’t been given a copy yet?).”

[Complainant’s Reply, p. 3; Annex “A” of the complainant’s Reply] Complainant’s and

Gina’s assertions are false.

4.1. As attested by HR Generalist Becca Sy in her Affidavit, she merely stated

that employees were supposed to be given hard copies of the leave policy. Gina

Su simply twisted Buena’s statement, which was not even addressed to Gina Su

Indeed, Becca Sy emphasizes that at no point in time was it communicated to

employees that “sick leaves can be used for medical tests or any other scheduled

medical appointments”. Smarty Communication’s policy on Sick Leaves has

always been the same – it should be unplanned; medical tests do not qualify as

Sick Leaves (since the tests can be scheduled on a non-working day) and should

be filed as Emergency Leaves except when the employee is also ill and cannot

report to work at the time the tests are administered.

Becca Sy’s Affidavit is attached hereto as Annex “@”.

4.2. Smarty Communication leave policy is readily accessible at Smarty

Communication’s “MyHR” intranet site. Employees may read a copy of the

leave policy by simply clicking on the appropriate link on their computer screen.

Moreover, as recently as 11 January 2010, an e-mail containing Smarty


Communication’s leave policy was sent to the Smarty Communication’s

Distribution List, which included Gina Su and complainant. Complainant and

Gina Su therefore cannot feign ignorance of Smarty Communication’s policy on

Sick Leaves.

Attached as Annex “@” is a screenshot of the MyHR site where the employees

can access Smarty Communication’s leave policy. Attached as Annex “@” is a

screenshot of the e-mail sent on 11 January 2010 to employees, including

complainant and Gina Su, regarding Smarty Communication’s leave policy.

5. Respondents cannot be blamed for denying complainant’s Sick Leave

applications. Indeed, complainant has not disputed that his Sick Leave applications

followed her pattern of taking Sick Leaves on Mondays or Fridays - complainant’s Sick

Leave on April 19 occurred on a Friday, while her Sick Leaves on April 29 and 30

occurred immediately prior to a long weekend since May 3 (Monday) was a public

holiday. Complainant also has not disputed that he applied for Sick Leaves on the

following dates:

Date Alleged Reason Remarks


4 April 2008 Sick Friday
25 July 2008 Extreme headache Friday
29 to 30 August Fever and Flu Friday, Monday and Tuesday.
2008 and 1 He then took Vacation Leaves
September 2008 for the rest of the week
(Wednesday to Friday).
2 December 2008 Hyperventilation Tuesday. Monday was a holiday
(Bonifacio day).
13 April 2009 Diarrhea Monday after Holy Week
8 May 2009 Not feeling well Friday. He then took a Vacation
Leave the next Monday (11 May
2009).
1 June 2009 Chest pains, eye and Monday
medical check up
5 October 2009 Severe sore throat Monday
7 December 2009 Fever/Colds Monday. He then took a
Vacation Leave the next day
because it was her son’s
birthday.

Complainant simply insists that he is “entitled to these sick leaves and he has

complied with the necessary requirements of the company’s employee’s handbook”.


Complainant conveniently ignores his employment contract, which states, among others,

that: (a) a Sick Leave application must be supported by “medical or other certificates, as

requested and defined by the Company”; (b) Smarty Communication shall have the right

to require [her] to undergo a medical examination”; and, (c) Smarty Communication

reserves the right to withhold or impose conditions on the provisions of sick pay, where

an individual is considered to be abusing the scheme”.36 Having voluntarily granted

Vacation and Sick Leaves in addition to those required by law (i.e., Service Incentive

Leaves of 5 days only), Smarty Communication has the prerogative to impose certain

conditions for the enjoyment of such leaves.

6. Complainant also alleges that he actually underwent some tests on April

19 and 20. [Complainant’s Reply, p. 5] However, this does not detract from the fact that

he did not take additional tests or consulted an medical Internist even if his illness was

supposedly serious enough that he had to be absent again on April 29 and 30. It cannot

be overemphasized that his , Dr. Ruel Reyes (“Dr. Ruel”), was holding clinic just beside

Smarty Communication’s office. Even if he was residing in Quezon City, he could have

passed by Dr. Ruel’s clinic when he went to Smarty Communication’s office several

times just to sign and take photos of the security logbook. Instead, he insisted on

compelling Smarty Communication to grant him Sick Leave applications on the basis of

the medical certificates that he previously submitted (even if these medical certificates

did not state that he needed to rest or to take the entire day off). He sought consultation

at Intellicare only when he was required several times by respondents and no longer had

any excuse not to do so. Indeed, complainant’s attempt to prolong his preventive

suspension by not submitting the documents required by Smarty Communication to

support his Sick Leave applications is evident from the fact that he did not submit

documents regarding the tests on April 19 and 20, as well as his consultation on May 18

at Mkati Medical Center. Complainant attached these documents only in his Reply.

7. In any case, even assuming arguendo that complainant is entitled to Sick

Leaves on 19, 29 and 30 April 2010, Smarty Communication’s exercise of its

36
management prerogative to strictly apply its Sick Leave policy cannot amount to illegal

dismissal.

Show Cause Notice

8. Respondents could not have made “baseless allegations” when they

simply issued a show cause notice and asked his to present his side. To be sure, Smarty

Communication’s management had the prerogative to initiate disciplinary proceedings

and ensure that its policies are complied with. [San Miguel Brewery Sales v. Ople, G.R.

No. 53515, 8 February 1989; San Miguel Corporation v. National Labor Relations

Commission (“NLRC”), G.R. No. 87277, 12 May 1989] Indeed, complainant herself

admits that the he was merely asked to “submit her written explanation” and to clear

doubts regarding the irregularities pertaining to her Sick Leave applications.

[Complainant’s Position Paper, p. 6] The issuance of the show cause notice on 5 May

2010 even further demonstrates that complainant was not dismissed.

Preventive Suspension

9. It is also well-settled that the employer may place an employee on

preventive suspension as a remedial or precautionary measure during the pendency of a

disciplinary investigation. [Book V, Rule XXIII, Section 8 of the Rules Implementing the

Labor Code; Soriano v. NLRC, G.R. No. 75510, 27 October 1987; Philippine Airlines,

Inc. v. NLRC, et al , G.R. No. 114307, 8 July 1998; Atlas Fertilizer Corporation, et al., v.

NLRC, et al., G.R. No. 120030, 17 June 1997] Complainant asserts that: (a) he “had been

unjustly charged” and “punished” [Complainant’s Position Paper, p. 12]; (b) preventive

suspension “does not mean that due process may be disregarded”; and, (c) he was not

given “twin notice”. [Complainant’s Position Paper, p. 12] Complainant’s assertions

are misplaced. As previously discussed, preventive suspension is merely a remedial or

precautionary measure, not a penalty. There is also no requirement to comply with the

“twin notice” require as Smarty Communication did not dismiss complainant.


10. The employer is not bound to pay the employee’s salaries during the first

30 days of the employee’s preventive suspension. In this case, Smarty Communication’s

even decided to pay complainant during the period of her preventive suspension. It was

complainant herself who prolonged his preventive suspension by not submitting the

documents required by Capital ID in connection with his Sick Leave applications.

11. Complainant accuses respondents of lying in respect of the payment of his

preventive suspension. In this regard, complainant presents his payslips for May and

June 2010 and notes that his salaries during the period that he was on preventive

suspension remained unpaid. [Complainant’s Reply, p. 7] On the contrary, it is

complainant who is clearly trying to deceive this Honorable Office. At no time did

respondents claim that complainant actually received his salaries during his preventive

suspension. Respondents have consistently stated that complainant knew that he would

be paid during her preventive suspension, but he herself prevented the actual payment of

her salaries for the said period by not completing Smarty Communication’s MyHR

process before the payroll period cut-off date or filling up Smarty Communication’s Post

Cut-Off Discrepancy Form.

12. Even assuming arguendo that complainant’s preventive suspension was

not justified, Smarty Communication’s exercise of its management prerogative to impose

preventive suspension cannot amount to illegal dismissal, especially since complainant’s

preventive suspension was with pay.

13. As discussed in respondents’ Position Paper and Reply, complainant

cannot claim that his continued employment had become so unbearable, impossible,

unreasonable or unlikely, as he even reported for work after 5 May 2010, and until his

resignation on 22 June 2010. The payslips provided by complainant also show that aside

from the period when he was on preventive suspension (which was not paid at that time

because complainant failed to process the documents for payment), complainant was

accorded all the rights and benefits of an employee by respondents. This fact alone

should completely negate constructive dismissal. In this regard, the Supreme Court has
ruled that before the burden of proving the validity of dismissal is shifted to the

employer, the employee must first prove by “clear, positive and convincing evidence”

that he or she has been dismissed. [Portuguez v. GSIS Family Bank, G.R. No. 169570, 2

March 2007] In this case, it is obvious that complainant cannot present “clear, positive

and convincing evidence” that he was dismissed on 5 May 2010.

Neither was complainant dismissed


when she reported back to work on
31 May 2010.
___________________________

14. From the time she was directed to report for work until her resignation on

22 June 2010, complainant continued to discharge the duties of a Financial Language

Editor. Complainant tries to put respondents in a bad light in connection with the denial

of her applications for Vacation Leaves for 21 to 23 June 2010. [Complainant’s Reply, p.

8] To be sure, the employer’s prerogative to regulate leaves, including the “time, place

and manner of work”, has been recognized by the Supreme Court. [San Miguel Brewery

Sales v. Ople, G.R. No. 53515, 8 February 1989] Big Bad Wolf’s exercise of its

management prerogative to regulate the schedule of its employees’ Vacation Leaves

cannot amount to illegal dismissal

14.1. On 31 May and 10 June 2010, complainant applied for Vacation

Leave for 21 June 2010. On 7 June 2010, complainant also applied for Vacation

Leaves for 22 and 23 June 2010. Unknown to Smarty Communication at that

time, complainant filed an illegal dismissal complaint on 27 May 2010 and a

conciliation conference was scheduled on 23 June 2010.

14.2. Complainant’s Vacation Leave applications were denied because he had

just been given a Written Warning/Corrective Action form on 31 May 2010 in

connection with her tardiness on 23 April, 4 May and 5 May 2010. Thus, in an e-

mail dated 16 June 2010 (6:12 pm), Bal Celno Inc. Director Alma 1 explained:

“ Miss Joela,
Unfortunately, with the recent corrective action due to your
attendance, we are still unable to approve your VL request.
I am a bit confused as to how you state below that you
don't agree with the corrective action. Given your
attendance is clearly tracked with your own proximity
card, it's a bit of a stretch for you to state you do not agree
with it.

I would also like to clarify your understanding surrounding


our vacation policy. When you are allowed to use your VL
credits isn't something that you can demand from your
employer. Our policy is quite clear in that all VL requests
are subject to managements approval. What should happen
is that some time should go by where we see a dramatic
improvement in your attendance before making a future
request. There is plenty of time to use your time later in the
year, so you are don't have to worry about losing the hours
you've accumulated.

I wish you had come to meet with me per my request


during your preventive suspension where I could have
explained our policies better and to intervene to help
prevent the continual contentious communication style you
now seem to have with your managers. As you've said
below, you've been with us for several years now and to be
constantly documenting all of your communications with
your managers doesn't bode well to someone that wants to
stay with CIQ and have a positive working relationship
with your managers and team.”

Lorna 1”

14.3. In an e-mail dated 22 June 2010, complainant requested that she be

allowed to report late to work the next day, and informed respondents for the first

time that he will be attending a hearing on 23 June (at 10 am) of the labor case

that he filed against Smarty Communication Contrary to complainant’s claim,

respondents did not whimsically deny complainant’s request. At that time, Bal

Celno Inc.’s officers still had not seen the summons for the labor case. Hence,

complainant was informed that she would be considered tardy until she is able to

show (e.g., present a copy of the summons) “that it was the courts that ordered

you to be there at 10 am tomorrow.” [Complainant’s Position Paper, Annex “Z”]

Complainant voluntarily resigned on


22 June 2010. No fraud, force,
intimidation or duress was employed
by anybody in order to make
complainant resign.
_____________________
15. The above-mentioned discussion is already sufficient for the dismissal of

complainant’s frivolous Complaint for “actual” dismissal effective 5 May 2010.

Nevertheless, it should also be noted that complainant voluntarily resigned on 22 June

2010.

16. It is well-settled that voluntary resignation is not constructive dismissal.

[Concrete Aggregates v. NLRC, G.R. No. 82458, 29 September 1995] Voluntary

resignation is defined as the act of an employee who “finds himself in a situation where

he believes that personal reasons cannot be sacrificed in favor of the exigency of the

service and he has no other choice but to disassociate himself from his employment.”

[Habana v. NLRC, G.R. No. 121486, 16 November 1998; Philippine Wireless, Inc. v.

NLRC, G.R. No. 112963, 20 July 1999] Complainant herself drafted his resignation e-

mail. Complainant is a graduate of the Arellano University. It is also obvious that

complainant was seeking legal advice as early as 7 May 2010 (when he sent her written

explanation / demand letter and asked to be compensated “for the serious anxiety,

sleepless nights, and embarrassment” that Wolf 2 supposedly caused her), and when he

filed her illegal dismissal complaint on 27 May 2010. It would therefore be absurd to

assume that complainant did not understand the import of his words and the

consequences of her acts. [Dizon v. NLRC, G.R. No. 69018, 29 January 1990]

17. Even assuming for the sake of argument that complainant’s tale of

“harassment” is true (which it is not), complainant’s own allegations reveal that

respondents did not threaten to terminate her employment or ask him to resign.

Apparently realizing that her claim of being subjected to “actual dismissal” on 5 May

2010 clearly had no merit because she continued to be employed, complainant baited and

provoked her managers into dismissing him. Unable to do so, complainant herself

submitted a resignation e-mail, but alleged that he was forced to do so.

17.1. In Concrete Aggregates Corporation v. NLRC, G.R. No. 82458, 7

September 1989, the Supreme Court noted that the employer’s lack of intention to

dismiss the employee indicates that the employee was not forced to resign:
“While it may be true that his boss Mr. Magtibay appeared to be
hostile towards her, he did not show by his acts any desire to fire
her from employment.”

17.2. In Dizon v. NLRC, G.R. No. 69018, 29 January 1990, the Supreme

Court ruled:

“In fact, even conceding that respondent Ricafort asked him to


resign, it cannot be denied that petitioner was not forced to draft
the two (2) letters of resignation; the contents thereof and the
terms therein were formulated personally by him. With petitioner's
educational and professional background, it would be absurd to
assume that he did not understand the import of his own words
and the consequences of his own acts.” [Emphasis supplied]

17.3. In Habana v. NLRC, G.R. No. 121486, 16 November 1998, the

Supreme Court held:

“We agree with private respondents that petitioner voluntarily


resigned.

Voluntary resignation is defined as the voluntary act of an


employee who "finds himself in a situation where he believes that
personal reasons cannot be sacrificed in favor of the exigency of
the service and he has no other choice but to disassociate himself
from his employment." In this case, as indicated in the various
memoranda he received from his superiors, petitioner was clearly
having trouble performing his job, one which undeniably carries
immense responsibilities. Notable too was petitioner's failure to
see eye to eye with his immediate bosses, first, Mr. Yokoo and
then Mr. Okawa. Because of these difficulties, it was quite
reasonable for petitioner to think of, and eventually,
relinquishing his position voluntarily…” [Emphasis supplied]

18. Citing Supreme Court decisions, complainant asserts that “respondents’

claim that complainant voluntarily resigned is belied by the fact that complainant

continues to pursue his illegal dismissal case”. [Complainant’s Reply, p. 6] However,

the Concrete Aggregates, Dizon and Habana cases above clearly show that an

employee’s voluntary resignation may still be given effect even if he or she subsequently

decides to file an illegal dismissal complaint. [Concrete Aggregates Corporation v.

NLRC, G.R. No. 82458, 7 September 1989; Dizon v. NLRC, G.R. No. 69018, 29 January

1990; Habana v. NLRC, G.R. No. 121486, 16 November 1998]


19. It is incumbent upon complainant to prove that he was forced by

respondents to resign. As held by the Supreme Court, “[b]are allegations of threat or

force do not constitute substantial evidence to support a finding of forced resignation”.

[St. Michael Academy v. NLRC, G.R. No. 119512, 13 July 1998] Complainant failed to

discharge her burden.

20. In an attempt to prop up his claim that he was forced to resign,

complainant presents the Affidavits of former Quality Analyst Benedict Su, Financial

Language Editor White Wolf 2, Financial Language Editor Fe Uy 3, former Research

Manager Tina Sy 4. [Complainant’s Reply, Annexes “A”, “H”, “I”, “J”, “K”, “L” and

“N”] These Affidavits only show that complainant was able to convince some persons to

try to help in her illegal dismissal complaint. However. none of the said persons even

said something about the main issue in this case (i.e., whether or not complainant was

dismissed on 5 May 2010) or made any statement within their personal knowledge

regarding complainant’s submission of her resignation letter.

GINA SU

20.1. Gina Su is in no position to rebut the statements of Financial Language

Editor Lorna 2, complainant’s German professor at the Arellano University.

Indeed, Lorna 2’s statements in her Affidavit regarding complainant’s attendance

issues and actuations regarding work assignments were based on her (Lorna 2’s)

personal knowledge and experience.

20.2. Gina Su also cannot rebut the statements of Quality Analyst Lorna 2, who

was seated just across complainant and was a close friend of complainant’s.37 Gina

Su was not present during the conversations with complainant that Gina Su 2

mentioned, as well as the conversations among complainant, Lorna 2 and ALMA 1

on 22 June 2010, which Lorna 2 personally observed.

20.3. As previously discussed, Gina Su’s statement that Smarty

Communication’s employees were not furnished a copy of the leave policy is


37
simply not true. The falsity of Gina Su’s statement is revealed by: (a) the

Affidavit of HR Generalist Alma; (b) the screenshot of Smarty Communication’s

MyHR site where the employees can access Smarty Communication’s leave

policy; and, (c) the screenshot of the e-mail regarding Smarty Communication’s

leave policy, which was sent on 11 January 2010 to Smarty Communication

employees, including complainant and Smarty Communication.

20.4. As someone who admits to being complainant’s “friend and classmate

since 2001”, it is not surprising that gina Su was convinced by complainant to

execute an Affidavit in his favor. It should be noted that while complainant

alleges that Gina Su is a “current employee”, Gina Su executed his Affidavit

when he was about to leave Smarty Communication. As stated in his resignation

letter dated 27 September 2010, he was leaving Smarty Communication after

having been given the “opportunity to work at with the United Nations

Development Program.” Respondents cannot help but note Gina Su’s duplicity.

Gina Su made false allegations against Smarty Communication just a few days

after: (a) Smarty Communication graciously acceded to his request for the

shortening of his notice period from the required 30 days to 15 days; (b) he

informed Lorna 2 that “it has been a pleasure working with [Lorna 2] the past year

and with the company for the past three and a half years”; and, (c) wished Lorna 2

and his team “the very best” and looked forward to another opportunity to work at

Bal Celno Inc.

Attached as Annex “@” is a copy of Gina Su’s resignation letter.

20.5. In any case, it should be emphasized that Gina Su did not even have

anything to say about complainant’s alleged actual dismissal on 5 May 2010, or

her supposed forced resignation on 22 June 2010. In other words, Gina Su’s

Affidavit is simply irrelevant to the real issues in this case.

Alma 1
20.6. Alama 1’s statements regarding Lorna 2 holds no water, as he was not

even present during Lorna 2’s conversations with complainant.

20.7. Lorna 1’s credibility is also seriously tainted by his baseless

allegation that former Smarty Communication employees were dismissed

because Team Leader Fe Uy 3 “has been successful in twisting their words and

giving the management whatever reason to fire them”. Contrary to Alam 1’s

allegation, Nida 5 and Mona 6 voluntarily resigned. On the other hand, Olla 7

was validly dismissed in 2009 for abandonment, as she failed to report to work

after her request to go on a 1-month leave of absence was denied.

Attached as Annexes “@” and “@” are copies of the resignation letters of

Gina Uy and Geraldine Uy. Attached as Annexes “@” and “@” are the show

cause and termination notices for Kimy Uy.

20.8. It also appears that Alma 1 wants to get back at respondent Lau’2 for not

pushing hard enough for his promotion as Financial Data Translation Team

Leader after Fe 3 left the said position some time in March 2010. Fe3 supported

Alama 1’s efforts to get the position, but a more qualified employee was chosen.

Attached as Annex “@” is a copy of Lau’s e-mail dated 3 March 2010, where she

recommended Alma 1’s promotion.

20.9. It should be also be noted that Alma 1 does not say anything about

complainant’s alleged actual dismissal on 5 May 2010. His allegations about

what transpired on 22 June 2010 does not show that complainant was forced to

resign, and cannot negate the statements of the persons (i.e., complainant’s

managers, teammates, a former professor and a former close friend) who

witnessed what really happened and have come forward to attest that complainant

was not forced to resign on 22 June 2010.


Ryan Sy 3

20.10. Ryan 3’s statements should not be given credence, as he has an ax

to grind against Lorna 2. Indeed, he already has an established history of making

dishonest statements. In March 2010, Ryan Sy 3 was given a written warning and

a reprimand by Lorna 2 for: (a) “performing way below expectations at 70%”;

and, (b) for fraudulently making it appear that he performed substantial research

work on 25 February 2010, even if subsequent investigation (including a review

of Internet website logs) showed that the items that he claimed to have performed

in 25 February 2010 were already done by 24 February 2010.

Attached as Annexes “@” and “@” are the Corrective Action Forms dated

1 and 5 March 2010. Ryan Sy 3 acknowledged the validity of the findings in the

Corrective Action forms by checking the portion stating “I agree with Employer’s

Statement” and affixing his signature on the Corrective Action forms.

20.11. In any case, some of Ryan Sy 3’s statements regarding the team

meeting that Becca Sy 2 called after complainant resigned even supports

respondents’ narration of what actually transpired on 22 June 2010. Becca Sy 3

notes that 2, just right after complainant left, said that: (a) Smarty

Communication’s management did not bully complainant, as it was complainant

who bullied management; (b) Lorna 2 and Alma 1 wanted to talk to complainant,

but the latter kept communication lines closed; (c) Bal Celno Inc “did not fire”

complainant, but it was complainant who resigned.

21. It is clear that the Affidavits submitted by complainants cannot prevail

over the Affidavits presented by respondents, as the latter were executed by persons (i.e.,

complainant’s managers, teammates, a former professor and a former close friend) who

had personal knowledge of the relevant facts in this case and who have come forward to

rebut complainant’s fabrications. These persons, who were present during the meeting in

Alma 1’s office and/or immediately before complainant walked out of her cubicle and
left the office on 22 June 2010, all belied complainant’s allegations of being “repeatedly

questioned, insulted and berated”, “grabbed [by the] hand” and “dragged...out of the

company’s premises” on 22 June 2010.38

22. Based on all the foregoing, it is clear that complainant was not illegally

dismissed.

There being no illegal dismissal,


complainant is not entitled to
reinstatement, backwages and
other benefits.
_____________________________
_______

23. As previously discussed, complainant voluntarily resigned. Therefore,

complainant is not entitled to reinstatement or backwages. [Santos v. NLRC, G.R. No.

76721, 21 September 1987; Reyes v. Minister of Labor, G.R. No. 48705, 9 February

1989] Neither is complainant entitled to separation pay. [Alfaro v. Court of Appeals,

G.R. No. 140812, August 28, 2001]

24. Even assuming arguendo that complainant did not intend to resign, she is

not entitled to backwages, as she herself has refused to work. It would be unfair and

unjust to penalize respondents because of complainant’s machinations. “A fair day’s

wage for a fair day’s labor” is a basic rule that governs the relations between employers

and employees and remains so in the matter of paying employees’ wages. If there is no

work performed by the employee, there can be no wage or pay unless the employee was

able, willing and ready to work but was prevented by management or was illegally locked

out, suspended or dismissed. [SSS v. SSS Supervisor’s Union – CUGCO, G.R. No. L-

31832, 23 October 1981; Philippine Airlines v. NLRC, G.R. No. 55159, 22 June 1989]

Respondents could not be expected to continue to pay complainant’s salaries after she

submitted her resignation letter.

25. Even assuming arguendo that complainant was illegally dismissed,

complainant is also not entitled to reinstatement because of “strained relations” between

her and Smarty Communication. Considering the baseless and malicious accusations that

38
he has hurled against respondents (e.g., being forced to resign, “repeatedly questioned,

insulted and berated”, “grabbed [by the] hand” and “dragged...out of the company’s

premises”, etc.), how can complainant work productively if she is reinstated?

Reinstatement should therefore not be awarded because it is likely that, if reinstated, an

atmosphere of antipathy and antagonism may be generated, which may adversely affect

efficiency and productivity of employees and the company as a whole. [Globe-Mackay

Cable and Radio Corp. v. NLRC, 206 SCRA 701 (1992); Coca-Cola Bottlers Phils., Inc.

v. Daniel, G.R. No. 156893, July 21, 2005].

26. In respect of complainant’s last salary/final pay, respondents are more

than willing to pay the same after he completes Smarty Communication’s clearance

process. As complainant has not undertaken Smarty Communication’s clearance process,

the only person preventing the payment of her last salary/final pay (amounting to PhP

141,532.22) is no other than complainant herself.39

Complainant is not entitled to moral


damages, exemplary damages, and
attorneys’ fees.
____________________________________

27. Considering that complainant was not illegally dismissed, complainant is

not entitled to damages and attorney’s fees.

28. In any case, complainant is not entitled to moral damages. Under Article

2220 of the Civil Code, moral damages may be awarded in actions arising from breach of

contract only where the defendant or respondent acted fraudulently or in bad faith.

[Primero v. Intermediate Appellate Court, 156 SCRA 435 (1987)] Bad faith or fraud,

however, is never presumed. These must be proved clearly and convincingly. [Suario v.

Bank of the Philippines Islands, 176 SCRA 688 (1989); Fernando v. Sto. Tomas, 234

SCRA 546(1994)] In this case, it is clear that respondents did not commit bad faith or

fraud.

39
Attached as Annex “22” of respondents’ Position Paper are the clearance forms that complainant needs to
submit. Attached as Annex “23” is a computation of complainant’s last salary/final pay.
29. There being no legal or factual basis for moral damages, complainant is

likewise not entitled to exemplary damages. [Dee Hua Liong Electrical Equipment Corp.

v. Reyes, 145 SCRA 713 (1985); Cocoland Development Corp. v. NLRC, 259 SCRA 51

(1996)] Exemplary damages cannot be recovered as a matter of right. [Article 2233, Civil

Code] In contracts and quasi-contracts, exemplary damages may be awarded only if the

respondent or defendant acted in a wanton, fraudulent, oppressive or malevolent manner.

[Article 2232, Civil Code] In this case, there is no proof of such conduct on the part of Bal

Celno Inc.

30. Neither are attorney’s fees justified. In termination cases, attorney’s fees

are not recoverable where there is no sufficient showing of bad faith on the part of the

employer. [Tumbiga v. NLRC, 274 SCRA 338 (1997); Lopez vs. NLRC, et al. 297 SCRA

508 (1998)] As there was no bad faith on the part of Bal Celno Inc., there is no basis for

awarding attorney’s fees to complainant. In fact, it was complainant who compelled Bal

Celno Inc. to litigate despite her voluntary resignation. It is complainant, and not Bal

Celno Inc., who should be liable to pay the latter attorney’s fees in an amount no less

than Three Hundred Thousand Pesos (PhP 300,000.00).

Individual respondents cannot be


held liable.
____________________________________

31. Assuming, without admitting, that complainant was illegally dismissed,

complainant has failed to establish any basis for making individual respondents Alama 1,

Lorna 2 and Si personally liable for complainant’s claims. Individual respondents did not

act with malice or bad faith. Indeed, the severance of complainant’s employment with

Smarty Communication was brought about by her voluntary resignation. Thus,

individual respondents cannot be held personally liable for complainant’s claims.

[Construction Co., Inc. v. Court of Appeals, 210 SCRA 230 (1992); Businessday

Information Systems and Services, Inc. v. NLRC, 221 SCRA 9]


RESERVATION

Smarty Communication and individual respondents expressly reserve their right

to file other pleadings and to adduce additional evidence, documentary and testimonial,

and/or controvert complainant’s allegations and evidence, insofar as they may be material

to the determination and resolution of this case.

PRAYER

WHEREFORE, it is respectfully prayed that the case be dismissed for lack of merit

and complainant be ordered to pay attorney’s fees in the amount of Three Hundred

Thousand Pesos (PhP 300,000.00).

Makati City, __ October 2010.

REYES LAW OFFICE


Counsel for Plaintiff
345 Pasong Tamo
Makati City

By:

PAUL REYES
IBP OR No. 793849 1/16/2010 – Makati City
PTR OR No. 120349 1/16/2010 – Makati City
Roll No. 5000
MCLE Compliance No. 19038349

Copy Furnished:

Atty. Mano Teres


Counsel for Respondent
Mayo Stock Exchange Centre
Ayala Center, Makati City

Moises Adama
Complainant
527 J.P. Rizal, Makati City

VERIFICATION

I, Oneil Sy 1, of legal age and with office address at 786 Pasay Road, Makati City,

after having been sworn in accordance with law, hereby depose and state that:

1. I am a Director of Atty. Mano Teres


.

2. I caused the preparation and filing of the foregoing Rejoinder.

3. All the allegations therein are true and correct based on my own knowledge

or authentic records.

Oneil Sy 1

SUBSCRIBED AND SWORN to before me this ____ day of __________ 2010 at


_________________, affiant exhibiting to me her CTC No. ___________ issued at
__________________ on ______________, and other competent evidence of identity.

NOTARY PUBLIC

Republic of the Philippines


Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Sub-Regional Arbitration Branch No. III
Makati City

DIETHER OCAMPO,
Complainant,
- versus - NLRC SRAB Case No. LAR 7-9022

ABS-CBN SEVEN,
Respondent,

CORINA KANINA,
Respondent.

REPLY
To Opposition to the Motion to Dismiss

Respondents ABS-CBN SEVEN (the “Company”) and Ms. Corina Kanina by


counsel, respectfully submit this Reply to the Opposition dated May 19, 2005 and state:

1. It is submitted that venue was improperly laid.

2. In the recent case of Pilipino Telephone Corporation v. Tecson (G.R. No. 156966,
May 7, 2004), the Supreme Court upheld the stipulation providing for an
exclusive venue of any litigation even if it was embodied in a contract of
adhesion. The Court held the agreement on the exclusive venue would be valid
and binding provided that the stipulation is exclusive in nature or in intent, that it
is expressed in writing by the parties thereto, and that it is entered into before the
filing of the suit.

3. In this case, the Contract of Employment between respondent and complainant


indicates very clearly the intent of the parties to consider the venue stipulation as
exclusive in character. Clause No. 5 of the said contract states:

“All claims, disputes or controversies that may arise from this


employment contract shall be brought by the herein parties exclusively
before the proper courts in Metro Manila.”

The Contract of Employment explicitly indicates the intention of the parties to


limit the venue to the courts in Metro Manila.

4. Complainant takes refuge in the argument that the contract of employment is a


contract of adhesion and following the case of Sweet Lines v. Teves40, it should be
disregarded. There is no merit in this contention.

5. As painstakingly explained by the Supreme Court in the very recent case of


Pilipino Telephone Corporation v. Tecson (G.R. No. 156966, May 7, 2004),

Indeed, the contract herein involved is a contract of


adhesion. But such an agreement is not per se inefficacious.
The rule instead is that, should there be ambiguities in a
contract of adhesion, such ambiguities are to be construed
against the party that prepared it. If, however, the stipulations
are not obscure, but are clear and leave no doubt on the
intention of the parties, the literal meaning of its stipulations
must be held controlling.

A contract of adhesion is just as binding as ordinary


contracts. It is true that this Court has, on occasion, struck
40
down such contracts as being assailable when the weaker party
is left with no choice by the dominant bargaining party and is
thus completely deprived of an opportunity to bargain
effectively. Nevertheless, contracts of adhesion are not
prohibited even as the courts remain careful in scrutinizing
the factual circumstances underlying each case to determine
the respective claims of contending parties on their efficacy.

Xxx

The circumstances in Sweet Lines, Inc. vs. Teves, wherein


this Court invalidated the venue stipulation contained in the
passage ticket, would appear to be rather peculiar to that
case. There, the Court took note of an acute shortage in inter-
island vessels that left passengers literally scrambling to secure
accommodations and tickets from crowded and congested
counters. Hardly, therefore, were the passengers accorded a real
opportunity to examine the fine prints contained in the tickets,
let alone reject them.

A contract duly executed is the law between the parties, and


they are obliged to comply fully and not selectively with its
terms. A contract of adhesion is no exception. (Underscoring
and emphasis ours.)

6. It has been repeatedly ruled that contracts of adhesion are “as binding as
ordinary contracts, the reason being that the party who adheres to the contract is free to
reject it entirely.” (South Pachem Development Corporation v. Court of Appeals, G.R.
No. 126260, December 16, 2004; Equitable Banking Corporation v. Jose Calderon,
G.R. No. 156168, December 14, 2004; Provident Insurance Corporation v. Court of
Appeals, G.R. No. 118030, January 15, 2004; Philippine Commercial International
Bank v. Court of Appeals, G.R. No. 97785, March 29, 1996; Serra v. Court of Appeals,
G.R. No. 103338, January 4, 1994)

7. Clause No. 5 providing for the exclusive venue of the case is not against public
policy. This case should be differentiated from the case of Sweet Lines. Complainant
had full knowledge of the terms and conditions of the contract of employment. He could
have rejected the contract in its entirety should he have disagreed with Clause No. 5
providing for the exclusive venue in the courts of Metro Manila.

8. Unlike the case of Sweet Lines, Clause No. 5 is clearly written in print and can
be readily seen in the front page of the employment contract. It was not written in fine
print nor was it concealed at the back page of the contract. Since the stipulation is very
apparent in the employment contract, complainant could not have been unaware of this
provision.

9. The Rules of Procedure providing for the venue of cases involving Overseas
Filipino Workers provide that the complainant may file it where he resides or where the
principal office of the employer is situated. Nevertheless, there exists a contractual
agreement providing for the exclusive venue in the courts of Metro Manila and such
agreement is restrictive and mandatory. The latter is the law between the parties and
should be given precedence over the Rules of Procedure, which should be applied only
when there is no contractual agreement providing for an exclusive venue.

10. Time and again, the Supreme Court has upheld the validity of a stipulation
limiting the venue upon a showing that such a stipulation is exclusive in nature. A
written agreement of the parties as to venue before the filing of an action is not only
binding on the parties but also enforceable by the courts. (Gesmundo v. JRB Realty
Corporation, 234 SCRA 153; Bautista v. De Borja, 18 SCRA 474 [1966]; Arquero v.
Flojo, 168 SCRA 540 [1988]).
11. Since the Employment Contract clearly provides that the exclusive and
mandatory venue for cases arising from the employment contract are the courts of Metro
Manila, complainant violated the aforesaid agreement by filing the case in Iloilo. Thus,
venue was improperly laid.

12. It is further submitted that this Honorable Court has no jurisdiction over the
subject matter of this case.

13. Under Article 217 of the Labor Code, the Labor Arbiters have original and
exclusive jurisdiction to hear and decide the following cases:

(1) Unfair Labor Practices;


(2) Termination Disputes;
(3) If accompanied with a claim for reinstatement, those cases
that workers may file involving wages, rates of pay, hours of
work and other terms and conditions of employment;
(4) Claims for actual, moral and exemplary and other forms of
damages arising from the employer-employee relations;
(5) Cases arising from any violation of Art. 264 of this Code,
including questions involving the legality of strikes and
lockouts;
(6) Except claims for Employees Compensation, Social
Security, Medicare and maternity benefits, all other claims,
arising from employer-employee relations, including those of
persons in domestic or household service, involving an amount
exceeding five thousand pesos (P 5,000.00) regardless of
whether accompanied with a claim for reinstatement.

14. It is well-settled in law and jurisprudence that the existence of an employer-


employee relationship between the parties is a jurisdictional requisite. Absent this
element, the labor arbiter has no jurisdiction to hear and decide the case. (San Miguel
Corporation v. NLRC, G.R. No. 80774, May 31, 1988; Hawaiian-Philippine Company
v. Gulmatico, G.R. No. 106231, November 16, 1994; Lapanday Agricultural
Development Corporation v. Court of Appeals, 324 SCRA 39).

15. When complainant filed his complaint for illegal dismissal; payment of wages
for the remaining portion of the contract; separation pay; reimbursement, actual, moral
and exemplary damages; overtime, vacation and sick leave pay; and attorney’s fees, on
February 5,2005, he had already severed the employer-employee relationship a year
before. On May 25, 2004, complainant Gachon requested a discharge at the port of
Isabel, Leyte to attend to some problems. He had resigned from the company. Upon
approval by the respondent Company, the employer-employee relationship was
effectually dissolved.

16. The request for discharge filed by the complainant served as a written notice of
his resignation from the Company. It is a voluntary act, initiated by the employee, which
terminated the employment. This being the case, there is no basis to invoke the
jurisdiction of the labor arbiter.

Plainly, the complainant may not invoke Section 217 (1), (3) and (5) because the
case does not involve unfair labor practice, violations of Article 264 of the Labor
Code nor is it accompanied by a claim for reinstatement.

Complainant cannot claim that the case falls under Section 217 (2) because in a
termination dispute, the employee questions the legality of the dismissal. In this
case, there was no dismissal to question because the resignation of the
complainant was voluntary and was impelled by himself and for his reasons
alone. The company never dismissed the services of the complainant.
Unquestionably, it was the complainant who put a halt to the employment
contract.
Moreover, because of his resignation and the resulting severance of the
employer-employee relationship, complainant cannot invoke the jurisdiction of
the labor arbiter under Section 217 (4) or (6). These two instances presuppose an
employer-employee relationship and such has been absent, by sole impetus of
the complainant, since May 25, 2004.

17. In further support of this contention is the very definition of an “employee”


under Article 212 (f) of the Labor Code:

“Employee” includes any person in the employ of an employer.


The term shall not be limited to the employees of a particular
employer, unless this Code explicitly states. It shall include any
individual whose work has ceased as a result of or in
connection with any current labor dispute or because of any
unfair labor practice if he has not obtained any other
substantially equivalent and regular employment.

Complainant Diether is not an employee under this definition because the


cessation of his work was not a result of or in connection with any current labor
dispute or unfair labor practice. The cessation of his work is attributed exclusively
to his resignation. The failure of complainant to fall within the definition of an
employee gives particular emphasis to the fact that there is no employer-employee
relationship between complainant and the company. There is no basis to invoke
the jurisdiction of this Honorable Office. Hence, the complaint must be dismissed
on the additional ground of lack of jurisdiction over the subject matter of the case.

PRAYER

WHEREFORE, under the foregoing premises, it is respectfully prayed that this


Court dismiss the Complaint in toto.

Other reliefs just and equitable are also prayed for.

Makati City , June __, 2009.

REYES LAW OFFICE


Counsel for the Complainant
345 Pasong Tamo Ave.
Makati City
By:

PAUL REYES
IBP OR No. 793849 1/16/2010 – MAKATI City
PTR OR No. 120349 1/16/2010 – MAKATI City
Roll No. 50000
MCLE Compliance No. 19038349

Copy Furnished:
GREG SIGUA
Counsel for Respondent
897 Malate St, Makati City

EXPLANATION

Due to distance, the undersigned was constrained to file and serve the foregoing
Reply to the Opposition to the Motion to Dismiss by registered mail.

PAUL REYES

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