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Republic of the Philippines

Department of Labor and Employment


NATIONAL LABOR RELATIONS COMMISSION
National Capital Region Arbitration Branch
Quezon City
MARK NICO B. PERALTA,
Complainant,
-versus-

NLRC-NCR-03-04654-2016

NAGUE MALIC MAGNAWA


(NMM)
&
ASSOCIATES
CUSTOMS BROKERS OF
LINA
GROUP
OF
COMPANIES, TERESITA M.
MALIC
and
ATTY.
FERDINAND A. NAGUE,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - -x

COMPLAINANTS
POSITION PAPER
COMPLAINANT MARK NICO B. PERALTA, by counsel,
unto this Honorable Labor Arbitration Office, respectfully
submits this Position Paper in support of his Complaint as
follows:

PREFATORY STATEMENT
It is the policy of the state to assure the
right of workers to "security of tenure" (Article XIII,
Sec. 3 of the New Constitution, Section 9, Article II
of the 1973 Constitution). The guarantee is an act
of social justice. When a person has no property,
his job may possibly be his only possession or
means of livelihood. Therefore, he should be
protected against any arbitrary deprivation of his
job. Article 280 of the Labor Code has
construed security of tenure as meaning that "the
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employer shall not terminate the services of an


employee except for a just cause or when
authorized by the Code (Rivera vs. Genesis
Transport, Inc., G.R. No. 215568, August 03,
2015).

STATEMENT OF THE CASE


This is a case for illegal dismissal; non-payment of twelve
(12) months salaries/ wages, out of pocket expenses, 13 th
month pay; moral and exemplary damages; attorneys fees;
and litigation expenses and costs of suit.

THE PARTIES
Complainant, MARK NICO B. PERALTA (herein
referred to as the Complainant), is of legal age, single, a
Licensed Customs Broker with good standing in the
community and a resident of Brgy. Bagbag, Novaliches,
Quezon City. He may be served with summonses and other
legal processes at the address of the undersigned counsel
indicated below.
Respondent, NAGUE MALIC MAGNAWA (NMM) &
ASSOCIATES CUSTOMS BROKERS OF LINA GROUP OF
COMPANIES (herein referred to as Respondent NMM), is a
general professional partnership of customs brokers,
organized and existing under the laws of the Philippines with
business address at 4/F Cargohaus Building, NAIA Complex,
Brgy. Vitalez, Paraaque City. Respondents, TERESITA M.
MALIC (Senior Partner) and ATTY. FERDINAND A. NAGUE
(President and Managing Partner) are the responsible officers
of Respondent NMM. They may be served with summonses
and other legal processes through their business address as
stated above.

STATEMENT OF FACTS
1. On May 17, 2012, complainant started working in JED
Brokerage, a company part of Lina Group of Companies, as a
Customs Representative/ Processor hired by Joel E. Deligero;
2. Among his duties are the following: (a) processing of import
documents of the companys client, FEDEX; (b) preparing
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import documents and process clearances to BOC-NAIA; (c)


pull out actual packages from customs premises; (d) monitor
the delivery of the released packages to the importers; and
(e) facilitate communication between customs officers and
importers;
3. Complainants daily schedule was from 07:00 oclock in the
morning up to 05:00 in the afternoon; His monthly salary is
Php 13,200.00 plus Php 1,000.00 professional allowance;
4. Because of his dedication, diligence, competence, and
flexibility, he excelled and promoted as team leader even
though just four months into service. Attached hereto is the
PROMOTION LETTER and made as integral part hereof as
ANNEX A;
5. Unfortunately, JED Brokerage was dissolve due to the nonrenewal of contract of FEDEX with the Lina Group of
Companies. As a result, On August 30, 2013, complainant
was transferred to respondent NMM, a brokerage company
that is also part of the Lina Group of Companies, with the
original employment contract remained intact as Customs
Representative/Processor;
6. In NMM, complainants duty is to process export shipments
of the companys client, Philip Morris Philippines Mfg. Inc.,
Philip Morris International; and PMFTC, Inc.;
7. Complainants daily work schedule at NMM was change to
09:00 oclock in the morning up to 07:00 in the evening; His
monthly salary is Php 13,200.00 plus Php 1,000.00
professional allowance. As evidenced by the attached court
record hereto marked as ANNEX B;
8. In the Export team of NMM, complainant was assigned as
partner of CANISIO M. MARASIGAN, the team leader, with
three (3) declarants, KEVIN MERCADO, ROXANNE DELA CRUZ
and EZELLE ARAUBAN. Their team is under the supervision of
TERESITA M. MALIC, Senior Partner of NMM;
9. Their work obligations are as follows: (a) prepare Philip
Morris Export documents [Export Declaration from E2M with
attachments of Invoice, Packing list, Certificate of
Identification, Certificate of inspection and Loading, Boat
Note, Phytosanitary Clearance and NTA permit]; (b)
processing of Phytosanitary Clearance in Bureau of Plant
Industry located at PHILEXPORT Buendia; (c) Processing of
Export Declarations to BOC Manila International Container
Port [MICP] and Port of Manila; (d) Pay Arrastre and Wharfage
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charges of Philippine Port Authorities; and (e) deliver the


original copy of all the processed documents to each
designated shipping lines;
10.
On his first month in service, complainant already
observed the favouritism and nepotism inside the NMM.
TERESITA M. MALIC assigned to the complainant all the
paper works and processing of all documents but never
authorized him to reimburse and liquidate the expenses
aside from CANISIO M. MARASIGAN, who used his 11 years of
power devoted to work abuse;
11.
Then, a pattern emerged, and his lateness quickly
became the norm; Tardiness, while not as bad as an
absence, also disrupts complainants daily operations. He
reported 2-3 days a week and was only doing 3 hours worth
of incompetent work a day, only filing liquidation of finished
export documents done by the complainant and collect cash
advances;
12.
Complainant finally approached TERESITA M. MALIC
regarding the matter; however, the former was shocked at
her response. She looked at the complainant, surprised, and
said, Try to talk to him, and make sure things run smoothly
or else youre accountable for this! At the end, the
complainant is the one that was blamed;
13.
On January 24, 2014, complainant received a text
message from a certain AMOR ACOSTA RELATIVO, personnel
of PHILEXPORT, Bureau of Plant Industry. The message goes:
Hello! Nico pakisabi kay Cane paki settle
muna account niya, naaudit ako ayaw pa release
mga phyto mo,
Photocopy of the said text message is hereto attached and
marked as ANNEX C and made as an integral part hereof;
14.
The complainant has no other choice but to collect the
outstanding balance from CANISIO M. MARASIGAN and
TERESITA M. MALIC with an amount of Php 126,600.00;
15.
Complainant phoned CANISIO M. MARASIGAN regarding
the matter but the latter refused to comply and instead said,
I dont have enough money. After which, he cant no
longer be reach by phone;

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16.
As it turns out, the blame fell on the shoulder on the
complainant. TERESITA M. MALIC reprimanded the
complainant and said to him, Find a way and dont show
your face in the office until the clearances were released;
17.
To show willingness to confront very difficult issues and
to help built a better work environment, complainant paid
the account out of his personal money;
Mr. Peralta took action to recover his money; however,
CANISIO M. MARASIGAN just gave the amount of
P
20,000.00 only then told to wrote a list because they are
obliged to the rest of the money to TERESITA M. MALIC and
made a non-contract, verbal agreement regarding his debt
settlement. Complainant continued to recompense using his
personal money and took certain actions to recover the debt
but no payment was made due to unresolved money
conflicts between TERESITA M. MALIC and CANISIO M.
MARASIGAN , and photocopies of which are hereto attached
and marked as Annex D.
Months have passed by, the disadvantageous situation
continued, the Complainant as a human admitted he was
aware but not held fully responsible for his mistakes, he
often lent money using his own pocket for Export processing
expenses from BOC MICP and POM (Unreceipted),
Phytosanitary Clearance expenses (Unreceipted), Drawback
Processing expenses from BOC CIIS Port of Manila
(Unreceipted), and Payment for Arrastre and Wharfage
charges to ICTSI and ATI when their fund is insufficient
(Reciepted), and photocopies of the said documents and
reciepts are hereto attached and marked as Annexes E,
E-1, E-2, and E-3. But his ego defense system kicks
in automatically, as CANISIO M. MARASIGAN always telling
him: Just to wrote everything down, we dont have enough
fund because I gave it to TERESITA M. MALIC. (Annex D)
Nothing but everything was rest reassured until August 24,
2015, TERESITA M. MALIC
file an investigation against
MARK NICO PERALTA, whose intention with all honesty was
to get the job done and keep the project on track even the
price of inaction is high, because unresolved, long-running
conflicts result in antagonism and stress through the use of
his personal money in almost all export shipments of PHILIP
MORRIS PHILIPPINES and PHLIP MORRIS INTERNATIONAL and
PMFTC. Even though, the complainant wanted to be a good
person by lending his money without in his best interest.
After all, with the reassurance made by TERESITA M. MALIC,
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the complainant efforts will not likely fail. Since day 1 in this
company, this is a one man show. MARK NICO PERALTA
worked hard as a one unit. One man show is always one man
glory and is not the main focus of a 'good team' resulting
into bad practice lead to a bad outcome, ONE SHIPMENT
DELAY HAS OCCURRED led to legal actions. In the course of
investigation, CANISIO MARASIGAN, MARK NICO PERALTA and
KEVIN MERCADO (Declarant) were condemned a prepunishment judgment as a Floaters.
On September 23, 2015, a private investigation was done.
The Complainant was proven NOT GUILTY regarding the
shipping damage incident report and got a head start at the
office. However, the complainant faced with condoning
changes of employment authorized by TERESITA M. MALIC ,
This program increased the pressure in his workplace
exponentially and added to some unfortunate circumstances
in his personal life. On second thought; this doesnt always
turn out well
for everyone, especially if it lacks respect and laying out all
options in a transparent way. This exact process the
complainant was going through. He was transferred without
actual notice as a backup processor in NAIA under the
supervision of IVY ORENSE. In this case, the complainant
requested more time to think about the terms or dont
accept the position due to unresolved issues. He respectfully
clarifies the owed money and suggested to pay the debt
piece by piece. A preliminary meeting was held to discuss
progress on solving issues and series of investigations were
done but still remained unresolved.
On September 28, 2015 The complainant sought consult
from ATTY FERDINAND NAGUE (President of the NMM
Customs Brokers ) for the recovery of the remaining unpaid
balance concerning his out of pocket expenses from
processing of PHILIP MORRIS export shipments amounting P
350,000.00 and the latter guaranteed will fix the problem
but the whole incident have a negative approach to
TERESITA M. MALIC, as tension arisen, she phoned the
complainant and said foul and demeaning language as the
complainant remained quiet and calmed towards her verbal
attack that led to strained relationship.
On October 2, 2015 ATTY FERDINAND NAGUE texted the
complainant after their phone conversation regarding his
employment :

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Ok nico report now starting Monday so we


could start discussing good things for our
company
photocopy of the said text message is hereto attached and
marked as Annex F.
The Complainant resumed work on October 5, 2015 to start
anew but unfortunately things gone the other way around,
The complainant still in a stagnant position with the hands of
uncertainty from TERESITA M. MALIC. For all we know, the
complainant is in a hostile work environment.
November 9, 2015. Up to date, MARK NICO PERALTA received
an initial and a final notice of termination, terminated from
his employment with NMM effective that day, and
photocopies of which are hereto attached and marked as
Annexes G and G-1.
On January 22, 2016, ATTY FERDINAND NAGUE texted the
Complainant, a meeting was set involving employment
process, setting out in detail the nature of allegations and
complaints that may decide what form of action is necessary
but always a poorly run meeting with the agenda of false
hopes, a photocopy of the said text message is hereto
attached and marked as Annex H.
It should be as clear and concise as possible; this team took
a lot of blood, sweat and tear money from the complainant
and thinking living in his worst case scenario and Yes, it
didnt kill him; only bearing the burden of depression that
there has been no joy in this trial and continuing to be afraid
to take the steps toward more abundance and missing out
on what this case has in store for him because he have
more, but he think this is the biggest one. That it will be
a waste of time money and effort that he could have used
elsewhere.
On March 21, 2016, jobless and devastated, Mark Nico
Peralta filed the instant complaint based on his alleged
illegal termination by the respondent.

ISSUES

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A. WHETHER OR NOT THE COMPLAINANT WAS


ILLEGALLY DISMISSED AND WHETHER OR NOT THE
COMPLAINANT WAS AFFORDED THE PROCEDURAL
DUE PROCESS.
B. WHETHER OR NOT RESPONDENTS ARE LIABLE FOR
ALL
THE
MONEY
CLAIMS
HEREIN
CLAIMED
INCLUDING
DAMAGES,
ATTORNEYS
FEES,
LITIGATION AND THE LIKE EXPENSES AND THE COST
OF SUIT.

ARGUMENTS/ DISCUSSIONS
COMPLAINANTS
DISMISSAL WAS CLEARLY
ILLEGAL AND HE WAS
DENIED DUE PROCESS
18.
Based from the foregoing facts, it is clear that the
dismissal of the complainant was illegal thus he should be
paid of his separation pay as provided by law. Also, no
procedural process was accorded to him prior to his
termination from service;
19.
Insofar as the procedural due process is concerned, the
law requires that the employer must furnish the worker
sought to be dismissed with two (2) written notices before
termination of employment can be legally effected, to wit:
(1) notice which apprises the employee of the particular acts
or omissions for which his dismissal is sought; and (2) the
subsequent notice which informs the employee of the
employers decision to dismiss him (Sec. 13, BP 130; Sec.
2-6 Rule XIV, Book V, Rules and Regulations
Implementing the Labor Code as amended);
20.
In this instant case, it was clear that complainant was
not afforded of the procedural due process accorded by law
because he was simply verbally fired from his employment;
21.
Furthermore, it is a basic principle that in termination
cases, the employer bears the burden of proving that the
dismissal of the employee is for a just or an authorized
cause. Failure to dispose of the burden would imply that the
dismissal is not lawful (United Tourists Promotion vs.
Kemplin, G.R. No. 205453, February 5, 2014);
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COMPLAINANT IS CLEARLY
ENTITLED TO ALL THE
MONEY CLAIMS HEREIN
CLAIMED
INCLUDING
DAMAGES,
ATTORNEYS
FEES, LITIGATION AND THE
LIKE EXPENSES INCLUDING
COST OF THE SUIT.

A simple perusal of the facts herein reveals that


Respondents have violated different labor standard laws.
Considering that the Complainant is seeking herein the
satisfaction of simple money claims, Respondents are
obligated to submit proofs of payment of such claims.
Otherwise, as a consequence of Respondents failure to
present or submit proofs of payment, Complainants claim
due to him will become unquestionable;

Besides, in this jurisdiction, it is settled that, in cases of


money claims asserted by its employees, the burden of proof
is shifted to the employer, bearing in mind that it possesses
all the necessary pieces of evidence to prove payment of
such claims;
As a proximate result of Respondents unlawful acts as
clearly adverted to above, Complainant suffered untold
miseries brought about by the sudden deprivation of his only
means of livelihood. He, being the bread winner of his family,
was unceremoniously left without a source of income. He
was thrown out of the job he faithfully performed for years
because Respondents felt so powerful that they could just, at
anytime, undermine Complainants security of tenure;
All the illegal and improvident acts of the Respondents
discussed above, which are part and parcel of their
malevolent and anti-workers inclination and attitudes, were
motivated by ill-will and illicit intentions and committed with
wilful and evident bad faith;
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Verily, the Complainant is entitled to moral damages as


provided for under Articles 2217 and 2219 in relation to
Article 21 and paragraph 6 of Article 32 of the Civil Code of
the Philippines;
The foregoing provisions read as follows:
Article 2217. Moral damages include
physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation,
moral damages may be recovered if they are the
proximate result of the defendants wrongful act
or omission.
Article 2219. Moral damages may be
recovered in the following and analogous cases:
xxxxx
(10) Acts and actions referred to in
Articles 21, 26, 27, 28, 29, 30, 32, 34 and
35.
Article 21. Any person who wilfully
causes loss or injury to another in a
manner that is contrary to morals, good
customs
or
public
policy
shall
compensate the latter for the damage.
Article 32. Any public officer or
employee, or any private individual,
who directly or indirectly obstructs,
defeats, violates or in any manner
impedes or impairs any of the following
rights and liberties of another person
shall be liable to the latter for damages:
xxxx
(6) The right against deprivation of
property without due process of
law.
Since it is clear that the Complainant is entitled to
moral damages, necessarily, he is likewise entitled to
exemplary damages, pursuant to Article 2229 of the Civil
Code of the Philippines which provides:
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Article 2229.
Exemplary or corrective
damages are imposed, by way of example or
correction for the public good, in addition to
the
moral,
temperate,
liquidated
or
compensatory damages.
The award of moral and exemplary damages is proper
when an illegally dismissed employee had been harassed
and arbitrarily terminated by the employer, as when the
latter committed an anti-social and oppressive abuse of its
right to investigate and dismiss an employee. (Sagum vs.
CA, G.R. No. 158759, May 26, 2005);
Complainant was dismissed from his job out of mere
whims and caprices of herein Respondents. Such
Respondents actuation, without a doubt, is done in bad
faith. Out of necessity, therefore, Respondents must pay
herein Complainant moral and exemplary damages as
rightful compensations for the sufferings he does not
deserve;
Finally, having been compelled to engage the services
of a counsel to vindicate his rights, Complainant is further
entitled to attorneys fees equivalent to ten percent (10%) of
the total judgment amount that may be awarded herein. As
the Supreme Court held in Aliling vs. Feliciano, G.R.
No. 185829, April 25, 2012:
It is settled that in actions for recovery of
wages or where an employee was forced to
litigate and, thus, incur expenses to protect his
rights and interest, the award of attorneys fees is
legally and morally justifiable.

PRAYERS
WHEREFORE, in view of all the foregoing, it is most
respectfully prayed for, that after due consideration, a
DECISION BE RENDERED in favor of the Complainant as
follows:
a. DECLARING Complainant to have been ILLEGALY
DISMISSED and was DENIED DUE PROCESS;

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b. HOLDING Respondents SOLIDARILY LIABLE for


all the monetary claims herein demanded as well
as DAMAGES in the amount of ONE HUNDRED
THOUSAND PESOS (Php 100,000.00) as moral
damages and TWO HUNDRED THOUSAND
PESOS
(Php
200,000.00)
as
exemplary
damages; and
c. DECLARING Respondents SOLIDARILY LIABLE to
reimburse Complainant all his litigation and other
related expenses, including attorneys fees
equivalent to TEN PERCENT (10%) of the total
monetary award.
OTHER RELIEFS, deemed just and equitable under the
premises are likewise prayed for.
Quezon City, 14 July 2016.
ALAFRIZ DOMINGO BARTOLOME
LACHICA
AGPAOA CALVAN CANTIL &
CUSTODIO
(ADBLACCC) Law Office
Unit 4-I, Future Point Plaza 3, No. 111
Panay Ave., Brgy. South Triangle, Quezon
City 1103
Website: www.adblaccclaw.com
Email: adblaccc@adblaccclaw.com
Landline: (02) 935-4262 Telefax:
(02) 363-4460
By:
Atty. JASON A. CANTIL
Roll of Attorney No. 56515
IBP Lifetime Member No. 011356; QC
Chapter
MCLE Compliance No. VPTR No.; 01//2016; Quezon City
Email: jac@adblaccclaw.com
Contact No. 0917-3087689

COPY FURNISHED:

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NAGUE MALIC MAGNAWA


(NMM)
&
ASSOCIATES
CUSTOMS
BROKERS
OF
LINA
GROUP
OF
COMPANIES
TERESITA M. MALIC
ATTY.
NAGUE

FERDINAND

A.

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