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

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VENANCIO C. RAMILO, Complainant, NLRC Case No. NCR- 08-12935-11 -versusGLOBAL CITY INNOVATIVE COLLEGE,/PINKIE TAN Respondents . x----------------------------------x POSITION PAPER FOR THE COMPLAINANT COMPLAINANT, by himself, to this Honorable Office, most respectfully submits this position paper, thus;

THE PARTIES Complainant is of legal age, Filipino, and a resident of Daang Banka Mercedez Avenue., Barangay San Miguel, Pasig City, where he may be served with processes of this Honorable office. Respondent GLOBAL CITY INNOVATIVE COLLEGE, GCIC for brevity, is an educational institution and a corporation, existing under the laws with principal address at 3/F Bonifacio Technological Center, 31st Street Corner 2nd Avenue., Crescent Park West, Bonifacio Global City, Taguig City, and the respondent Pinkie Tan, Human Resource Officer of said corporation at the same address where they may be served with processes of this Honorable Office.

2 STATEMENT OF THE CASE This is a complaint for Actual Illegal Dismissal, Non-payment of Salary, Non-payment of 13th Month Pay, Non-payment of Separation Pay, Non-payment of Nightshift Differential, Monetized Sick Leave, Special Leave for Women, and Moral and Exemplary Damages and Attorneys Fees. STATEMENT OF THE FACTS 1. That on June 11, 2003, Complainant was hired by GCIC as a

one of their Maintenance Staff, to be assigned at its Campus in Global City, Taguig City; 2. That sometime in October 2004, respondent corporation

made the respondent as one of their regular employee, their employeremployee relationship was entered into through an Employment Agreement between the complainant and the respondent, herein attached as Annex A; 3. That from the initial date of employment of complainant in

2003, she has maintained a performance rating of (4) or Performance Exceeding Expectation, herein Performance Review attached as Annex B; 4. That aside from the recognition of exemplary performance,

Complainant has received various commendations for her loyalty to the Respondent Corporation for serving the latter since 2007 until her illegal dismissal. Attached herein are the commendation letters dated September 1, 2009 as Annex C and August 19, 2010 as Annex C-1; 5. That due to her exemplary performance and loyalty, she was promoted as Team Leader; 6. That on June 16, 2011 she was surprised to receive a SHOW CAUSE NOTICE (Annex D) from the Human Resource Department stating that based on initial verification and investigation conducted by

3 APAC Customer Service Inc. Philippine Branch, she allegedly committed an offense by: Unauthorized adjusting or editing of the schedule plotted in IEX of an employee on July 1 and July 7, 2011. You apparently moved the plotted scheduled lunch of Clare Cammayo (who is already with negative points in Attendance) on the latter part of the shift without notifying or getting the approval of the WF/Operations Manager. 7. That noticeably, said SHOW-CAUSE NOTICE was received by the Complainant unsigned by the HR Generalist, Edgar Jundee F. Magararu marked as Annex D-1; 8. That on July 25, 2011, Complainant submitted her Reply to the Show Cause Order dated July 20, 2011 and received by the HR Department on the aforementioned date (Annex E and Annex E-1); 9. That item; 10. That despite her justifications, she was issued a Notice of Complainant in her Reply, managed to clearly and

comprehensively answer the issues thrown against her discussing each

Termination dated August 2, 2011 (Annex F), one week after submission of her Reply which terminates her employment immediately effective August 2, 2011 (Annex F-1), same date of receipt of her Notice of Termination; ISSUES 1. Whether or not complainant, Raquel Topacio Esquerra, is entitled to the following claims: 1.1. Actual Illegal Dismissal; 1.2. Non-payment of Salary; 1.3. Non-payment of 13th Month Pay; 1.4. Non-payment of Separation Pay; 1.5. Non-payment of Nightshift Differential; 1.6. Monetized Sick Leave

4 1.7. Special Leave for Women 1.8. Moral and Exemplary Damages; and 1.9. Attorneys Fees.

DISCUSSION I Actual Illegal Dismissal Respondent-Corporation accused Complainant of violating the APAC Customer Services Policy/Corrective Action Matrix: Zero Tolerance, to wit: KPI of Performance Fraud: Reps unscheduled out were apparently covered up as not to affect your teams KPI or performance. (Annex D-2) Negligence in Carrying out of Assigned Duties: Negligence which resulted in the loss or damage to the Company. For each hour that a rep is out in Offline, we lose a revenue inan hurly bases ($13.78/hr or 593/hr) (Annex D-3) To this effect, the following reasons were submitted by

Complainant in here Reply to Show-Cause Notice: 1. Issue #1: Though it is my log-in appearing in IEX which was used to edit the employees schedule, it was not me who plotted the schedule. This is because of the following reasons: (marked as Annex E-2, E-2a, E-2b, E-2c) i. We have four reps acting as support who all have access to my passwords for IEX and CMS with the knowledge, approval and in fact directive of the Operations Manager as evidence by Annex A (E-nail by OM Hope Maningas acknowledging that four reps are plotting IEX) ii. I went on sick leave last March 14 due to total hysterectomy, when I reported for work on April 18, this was already the set up being implemented

iii. Moreover, this set up has also been made aware to WF as evidence by Annex B (E-mail of Raquel EsguerraTopacio to WF requesting change of schedule for Roxan Diaz, one of the support reps, to look after CDP closers) and

Issue # 2: With regards to the second issue, below are material events leading to the case at hand.(Annex E-3) July 1 - Roxan Diaz, one of the support reps, mistakenly plotted lunch instead of unsched. July 8 OM Hope Maningas informed me of the unauthorized plotting that happen July 1 and July 7. As I am aware that Ms. Diaz was plotting work scheds, I verified that issue with her, to which she admitted having mistakenly plotted lunch instead of unsched. Upon learning this, the matter was immediately admitted to the OM in order for the matter to be settled and reported. In relation to these events, while I acknowledge the fact that what the rep did in plotting lunch instead of unsched was in violation of company policy, besides the fact that she admitted that this was an honest mistake; we have to admit that these are human errors that happen from time to time. I further reiterate that, once the rep and I found out of the incident, this was admitted to OM in order for corrective action to be done and to minimize if not totally eliminate and damage to company or account.

6 As for the instance in July 7, the last activity on IEX on the said date plotted under my name was 4:36 pm CST, However, as per Annex C (Email of RacquelTapacio expressing that she has gone home or left the office) I already left the office at 3:13pm CST.

Termination is without Just Cause Art. 282 of the Labor Code of the Philippines, as amended, provides for the grounds for termination by employer. In this particular case, Complainant was terminated under paragraph (c) of Art. 282, which is Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative. In the Notice of Termination, complainant was found guilty of the first violation thrown against her which constitutes Performance Fraud. This alleged performance fraud was committed 1 and July 7, 2011. Logically, being the Team Leader, the complainant is supposedly liable for any changes, errors, and fraud committed in the schedule plotted in IEX for her team. It follows, since normally, accessed is solely given to her and her alone. If there will be anyone who can access the schedule, it follows that it has to be the complainant. Unfortunately, this was not the case. Access was not limited to Team leaders only since this was given to other Customer Representatives/Ops Support namely Roxan Diaz (Roxy), Cris Peig (Cris), Rix Quinonez (Ric) and Ma. Luz Nunez (Gygie). Access was allowed and permitted by no less than the Operations Manager, Ms. Pagasa Maningas. by unauthorized adjustment or editing of schedule plotted in IEX for an employee on July

7 This was actually recognized by OM Maningas in her Email sent to the Team Leaders including the complainant, dated 21 April 2011 at 3:36 P.M. This email is herein attached as Annex G. According to Ms. Maningas, the four Ops support (Roxy, Cris, Ric and Gygue) are ordered to follow a schedule particularly performing IEX Plotting (Annex G-1). This schedule was stated in here email, to wit: IEX Plotting Days Monday Tuesday Wednesday Thursday Friday 172 Cris Roxy Cris Roxy Cris 129 Roxy Cris Roxy Cris Roxy

In effect, accessed to the IEX Plotting is now available to other CR or Ops Support other than Team Leaders such as the complainant. Responsibility can be accepted by the complainant if it can be established that she has sole access to IEX Plotting However, this is not the case. It was even beyond the knowledge of the complaint that other employees were given access since she was on leave for almost two months. It was only upon checking her email when she reported for work that she discovered that IEX plotting was made available to other and actually unauthorized employees. The possibility of the complainant committing the alleged frauds already turns from 100% to 20%. This is due to the fact that other four employees may have caused the said alteration/fraud. Just causes for dismissal of employee may be defined as those lawful or valid grounds for termination of employment which arise from causes directly attributable to the fault or negligence of the erring

8 employee. Just causes are usually serious or grave in nature and attended by willful or wrongful intent or they reflected adversely on the moral character of the employees. Just cause based on fraud provides that said fraud was committed by the employee against the employer. However, in this case, considering the loose access of four other reps/Ops support, it could not be conclusively said that the alleged fraud is directly attributable to the complainant.

Respondent did not Observe Due Process In Terminating Complainant No person shall be deprived of life, liberty and PROPERTY without due process of law. Article 3, Section 1, Constitution of the Philippines. The right to labor is a constitutional as well as a statutory right. Every man has a natural right to the fruits of his own industry. A man who has been employed to undertake certain labor and has put into it his time and effort is entitled to be protected. The right of a person to his labor is deemed to be property within the meaning of constitutional guarantees. That is his means of livelihood. He cannot be deprived of his labor or work without due process. (Offshore Industries, Inc. vs. National Labor Relations Commission, G.R. No. 83108, Aug. 29, 1989; BLTB Bus Cp. Vs. Court of Appeals, 71 SCRA 470 [1976]) In the case of the complainant, clearly, she was denied her right to due process when she was abruptly terminated and despite her showing that there is no just cause in her dismissal. Where the employee denies the charges against him, a hearing is necessary to thresh out all doubts. The failure of the employer to give the

9 employee the benefits of hearing and an investigation before his termination constitutes an infringement of his constitutional right to due process of law. (Roche [Philippines], et al. vs. National Labor Relations Commission, G.R. No. 83335, Oct. 5, 1989).

Yes, the complainant was issued a Show-Cause Order where she was given the opportunity to answer the accusations hurled against her. Within a reasonable time, she submitted her reply and gave answers. Complainant also presented certain issues which involve various employees which should be considered as witnesses and subject to further investigation. However, this opportunity is not enough in order for the complainant to protect her livelihood considering the circumstances of this case. The Labor Code whose pertinent provision reads: ART. 277. x x x

(b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just or authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the workers whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to the guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. (underline supplied for emphasis)

10 x x x February

In the case of Ang Tibay vs. CIR (GR. No. L-46496

27, 1940), the requirements of procedural due process in administrative proceedings have been similarly defined. The proof required in these proceedings is the lower standard of substantial evidence. Thus, in Cuenca vs. Atas (G.R. No. 146214, October 5, 2007), administrative due process, requires that the decision be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties concerned.

In Arboleda v. NLRC (G.R. No. 119503, February 11, 1999) the Supreme Court held that: The requirement of notice and hearing in termination cases does not connote full adversarial proceedings as elucidated in numerous cases decided by this Court. Actual adversarial proceedings become necessary only for clarification or when there is a need to propound searching questions to witnesses who give vague testimonies. This is a procedural right that the employee must ask for since it is not an inherent right, and summary proceedings may be conducted thereon. However, in the case of the complainant, despite the circumstances where it was shown in her Reply and attached evidence (the emails of her Operations Manager) that their exist no just cause for her termination, there is a clear violation of due process when she was terminated immediately 14 days from the submission of her reply. Also, her notice of termination was issued on August 2, 2011, also in effect on August 2, 2011, the same day. The implementing rules for the termination of employees under just cause for Book VI are embodied in Rules I, II, and II-A of the Omnibus Rules Implementing the Labor Code as well as in Rule XXXIII in D.O. No., 9, series of 1997. This department order prescribes the standards of due process, varying according to the cause of termination.

11 I. For the termination of employment based on just causes as defined under Article 282 of the Code: (a) a written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side; (b) A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given an opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and (c ) A written notice of termination served on the employee indicating that upon due consideration of all circumstances, grounds have been established to justify his termination. Under paragraph (b) of the preceding Omnibus Rules

Implementing the Labor Code, complainant was not given the chance to rebut the evidence presented against her. Witnesses such as the Reps and Ops Support and her Operations Managers where not investigated by the company nor were made to submit their statements. Considering that their statement is material to her case. Likewise, under paragraph (c ) of the same Rules, her Notice of Termination states that investigation were conducted by the management but this is not true since she was immediately terminated upon submission of her reply. Moreover, it does not state the grounds established to justify her termination.

Penalty of Dismissal is Inappropriate If for the sake of argument, complainant is indeed found to be in violation of Company Policy, dismissal remains questionable and subject to nullification. It is a fundamental rule that the penalty must be commensurate to the offense.

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The Supreme Court in many dismissal cases has repeated this ruling:

It would imply at the very least that where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe. It is not only because of the law's concern for the workingman. There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant on the loss of jobs then could be avoided if there be acceptance of the view that under all the circumstances of this case, petitioners should not be deprived of their means of livelihood. Nor is this to condone what had been done by them. For all this while, since private respondent considered them separated from the service, they had not been paid. From the strictly juridical standpoint, it cannot be too strongly stressed, to follow Davis in his masterly work, Discretionary Justice, 32 that where a decision may be made to rest an informed judgment rather than rigid rules, all the equities of the case must be accorded their due weight. Finally, labor law determinations, to quote from Bultmann, should be not only secundum rationem but also secundum caritatem. (Almira vs. B.F. Goodrich,G.R. No. L39474)

The complainant has received various commendations from her employer for her Loyalty. She was promoted from Customer

Representative to Team Leader in a span of four years. She has shown Performance which Exceeds the Expectation of the Company. Lastly, there has been prior violations committed by other employees of the same nature which were considered by the Operations Manager such as the case stated in her Reply. A Dismissal effective immediately is too harsh a punishment for an employee who served the company with loyalty and with exemplary performance. Also, too much since substantial evidence could not be established as enough grounds for her dismissal.

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II. Monetary Claims Aside from her complaint for Actual Illegal Dismissal, Ms. Topacio also claims for Non-payment of Salary, Non-payment of 13th Month Pay, Non-payment of Nightshift Differential and Monetized Sick Leave.

Since complainants termination, she was not able to receive her remaining salary, 13th month, nightshift differential and monetized sick leave. Her 13th month pay remain due from June 2 to August 2, 2011. As to her salary and nightshift differential, she was not able to receive the same since from July 11 to August 2, 2011. Moreover, she also claims her monetized sick leave of three days.

III. Special Leave for Women

The Department of Labor and Employment (DOLE) has issued Department Order (DO) 112-11 on the Special Leave Benefits for Women Employees, pursuant to Section 21 (B) of the Implementing Rules and Regulations of Republic Act 9710, otherwise known as the Magna Carta of Women. Said DO was published in the 22 March 2011 issue of the

14 Philippine Daily Inquirer and shall take effect fifteen (15) days from said publication date. Section 2 of the aforementioned Department Order, states that any female employee, regardless of age and civil status, shall be entitled to a special leave, provided she has complied with the following conditions: (a) She has rendered at least six (6) months continuous aggregate employment service for the last twelve (12) months prior to surgery; (b) She has filed an application for special leave in accordance with Section 3 hereof (DO 112-11); (c) She has undergone surgery due to gynecological disorders as certified by a competent physician. Under Section 5, benefits that may be availed by the female employee is a full pay for two months based on her gross monthly compensation. On March 15, 2011 to May 31, 2011, complainant filed her Leave Request Form (Annex I) for reasons that she will undergo a surgery for the removal of her myoma. This Leave Request Form was received by her Immediate Supervisor (Annex I-1). Said surgery was certified by her attending Physician Dr. P. Bagtas and Dr. Dennis Abalos as TAH , Unilateral Salpingo-oophorectomy or treatment of Myoma Uteri (Annex J). Her operation record and abstract is herein attached as Annex J-1 and J-2). Complainant is entitled to Her gross monthly compensation

15 Considering the complainant filed her leave due to a surgery for treatment of her Myoma Uteri, she is therefore entitled to the benefits provided by DOLE DO No. 112-11 series 2011.

IV. Separation Pay Complainant does not pray for reinstatement as consequence of her actual illegal dismissal. However, separation pay is prayed instead. In Gabuay v. Oversea Paper Supply, G.R. No. 148837, August 13, 2004.), it was enunciated by the Supreme Court, Separation pay is, likewise, awarded in lieu of reinstatement if it can be shown that the reinstatement of the employee is no longer feasible, as when the relationship between employer and employee has become strained.

III Moral and Exemplary Damages and Attorneys Fees Moral damages may be recovered when the dismissal of the employee was tainted by bad faith or fraud; or when it constituted an act oppressive to labor or done in a manner contrary to morals, good customs or public policy. Exemplary damages are recoverable if the dismissal was done in a wanton, oppressive, or malevolent manner. (Seimens vs. Domingo, G.R. No. 150488, July 28, 2008) As for the complainant, she was dismissed without due process and without just cause. This is a blatant act of bad faith. Moreover, her

16 dismissal was in effect immediately upon issuance and receipt of the Notice of Termination, this is clearly wanton, oppressive and malevolent. Under Article Art. 111 of the Labor Code as amended it is provided that: Attorney's fees. (a) In cases of unlawful withholding of wages the culpable party may be assessed attorney's fees equivalent to ten percent of the amount of the wages recovered. The employer withheld the salary, 13th month, night shift differential, special leave for women benefit and monetized sick leave of the complainant. Thus, complainant is entitled to Attorneys Fee.

RESERVATION Complainant do hereby reserve the right to adduce additional evidence in support of her claims, whenever necessary and available under the circumstances. PRAYER WHEREFORE, in view of the foregoing, it is most respectfully prayed unto this Honorable Office that judgment be rendered in favor of the complainant and particularly order other reliefs just and equitable are likewise prayed for.

JOSEFINA S. RODRIGUEZ Counsel Roll No. 59297 PTR No. 5266129/ May 18, 2011, Quezon City I.B.P. No.859388/March 23, 2011, Manila 1835 E. Rodriguez Ave., Quezon City

17 VERIFICATION/CERTIFICATION FOR NON-FORUM SHOPPING Republic of the Philippines) Quezon City ) S.c. I, RAQUEL ESQUERRA-TOPACIO, of legal age, Filipino, single, after having been duly sworn to in accordance with law do hereby depose and say: 1. That I am the complainant in the above-entitled case: 2. That I have caused the preparation of the foregoing and have read the allegations contained therein; 3. That the allegations therein are true and correct of my own knowledge and authentic records; 4. To the best of my knowledge and belief, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; 5. If I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to report that fact within five (5) days therefrom to this Honorable Court; and 6. That I executed this verification to attest to the truth of the foregoing fact. IN WITNESS WHEREOF, I have hereunto affixed my signature this _____ day of September 2011, in Quezon City, Philippines.

RAQUEL ESQUERRA-TOPACIO

SUBSCRIBED AND SWORN to before me this _____ day of September 2011, in the City of Manila, affiant exhibiting to me her Community Tax Certificate issued at ______________________ on ______________________.

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