Professional Documents
Culture Documents
NLRC-NCR-03-04654-2016
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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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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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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ISSUES
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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.
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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COPY FURNISHED:
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FERDINAND
A.
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