Cervantes vs Vitarich

8/18/2019 Cervantes vs Vitarich

1/21

Republic of the PhilippinesDepartment of labor and Employment

National Labor Relations Commission

Regional Arbitration Branch No. XIDavao ity

WARLORD JOHN R. CERVANTES

Complainant,

NLRC CASE NO. RAB XI !"#!!""$#%!For& I''E(A' DI)*I))A' +I,- *NE/'AI*)

!ers"s

VITARICH COR#ORATION$

%RO&AX' INC.' et. a.

Respondent,

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

#OSITION #A#ER

COLAINANT' thru the undersigned counsel0 and unto this

-onorable ffice0 respectfully submits this Position Paper.

#REFATOR( STATE&ENT

,he employer1s prerogative of terminating its employees in the

implementation of its management policies and protection of its interests is

not 2ithout limitations. 'abor la2s provide not only the valid causes for

2hich an employer may order the dismissal of an employee0 but also the

proper manner in e3ercising such right to dismiss. And herein complainant

2as dismissed arbitrarily0 and in a manner contrary to 2hat is mandated by

la20 hence0 this position paper.

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#ARTIES

COLAINANT WARLORD JOHN R. CERVANTES 4hereinafter

referred to as CERVANTES for brevity5 is a 6ilipino0 married0 of legal age0

and a resident of Bloc7 80 'ot %90 )outhvilla ountry -omes0 *a#a0 Diversion

Road0 Davao ity and may be served 2ith pleadings0 orders and other

processes of this -onorable ffice thru the undersigned counsel.

VITARICH COR#ORATION $ %RO&AX' INC. 4hereinafter referred

as VITARICH for brevity5 is a corporation e3isting under Philippine la2s and

is engaged in the business of manufacturing and selling of animal feeds and

health products to its consumers. It is represented by RO%ER &.

SAR&IENTO0 as its o2ner: ROCCO &. SAR&IENTO0 as (eneral *anager:

STE#HANIE NICOLE S. %ARCIA0 as 6inance *anager: %)ILLER&O B.

&IRALLES0 as ;ice President for ;is#*in perations: AIDA T. %IRADO0 as

Administrative *anager: DIANA C. CONCE#CION0 as -uman Resource

)upervisor for ;is#*in: and &ARICEL L. &)SONES0 as -uman Resource

*anager. It is located at 0 9!!8 2ith a salary rate fi3ed at P=90>!!.!!

per month:

9. As R)*0 ER;AN,E)1 function 2as primarily and essentially to

monitor and ensure that the target sales and collections of the

District )ales *anagers 4D)* for brevity5 under his supervision are

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reached 4?ob Descriptions *anual for R)* is herein attached as

Anne* +A to A,-5:

$. )ometime in April 9!!@0 ER;AN,E) 2as verbally informed of his

transfer to *indanao as R)* for (eneral )antos 6eed )ales

perations;

=. Prior to the effectivity of such transfer0 there 2as a transition period

during 2hich ER;AN,E) under2ent orientation from a certain

BERNARD ,ANIA 4,ANIA for brevity50 the then R)* for (eneral

)antos 6eed )ales perations:

>. ,hat ER;AN,E) officially assumed office as R)* for (eneral

)antos 6eed )ales perations only on *ay %0 9!!@:

8. In April 9!!@0 during the tenure of ,ANIA as R)*0 one D)*0 a

certain (RAE . NER 4NER for brevity50 conducted the

alleged uestioned transactions of selling and causing the delivery

of ;I,ARI-1s products to a certain *I'A(R) ,A*A/0 2ho at

that time does not have an approved credit line 2ith ;I,ARI-:

C. Also prior to complainant ER;AN,E)1 tenure as R)* for (eneral

)antos0 similar transactions of selling and causing the delivery of

;I,ARI-1s products to a certain R)A'INA 6AR* 2ere effecteddespite the latter1s lac7 of a credit line or during the pendency of

their application for a credit line:

". ,o facilitate such sales despite the lac7 of a credit line0 NER

issued invoices under the name and account of an e3isting client

2ith an approved credit line0 the DA ?)E6A 6AR* o2ned by one

?)IE (ARIA:

@. ,A*A/ 6AR* transacted 2ith respondent ;I,ARI- under the

name of DA ?)E6A 6AR* only until *ay "0 9!!@0 as

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complainant already completed the processing of ,A*A/ 6AR*1s

application for a credit line on *ay %%0 9!!@:

%!. )ometime in December 9!!@0 NER0 in a letter dated

December %90 9!!@0 addressed to complainant and other officials of

respondent ;I,ARI-0 herein attached as Anne* +B-0 admitted to

conducting the said transactions:

%%. NER ustified her transactions by e3plaining that allo2ing a

client 2ithout an approved credit line to purchase and place orders

under the name of another client 2ho has an approved credit line is

an accepted company practice for the purpose of promoting and

developing ne2 customers or accounts:

%9. ,hat the uestioned transactions 2ere done 2ith the 7no2ledge

and consent of ?)IE (ARIA 4Audit Report0 refer to Anne* +A- o

Res/on0ent1s #osition #a/er50 subect to the condition that it is

still the D)* 2ho 2ill handle collections from the other clients

purchasing under the name of DA ?)E6A 6AR*:%$. Fpon onfirmation of Accounts by respondent ;I,ARI-0 ?)IE

(ARIA denies having placed the orders0 since the orders 2ere

actually made by ,A*A/ 6AR* and R)A'INA 6AR*0 but does not

deny consenting to the arrangement:

%=. ,A*A/ 6AR*0 along 2ith other clients0 refused to pay for the

purchased products and as7ed for an adustment of the balance as

compensation for the losses incurred by them due to the production

and delivery by respondent ;I,ARI- of lo2 uality feeds:

%>. ,hat such allegation of the products having lo2 uality is

supported by the findings of respondent1s uality assurance

department personnel0 ?E)F) . ARIN0 ?R as stated in his letter0

herein attached as Anne* +C-:

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%8. ,hat complainant ER;AN,E)0 thereafter0 openly criticiGed the

;ice President for ;is#*in perations0 (FI''ER* B. *IRA''E)

4*IRA''E) for brevity50 for the production lo2 uality products:

%C. In ?anuary 9!%!0 ER;AN,E) received a Notice to E3plain 4Refer

to Anne* +B- o Res/on0ent1s #osition #a/er50 dated ?anuary

>0 9!%!0 issued only by *IRA''E)0 and not by the -uman Resource

Department0 directing the former to e3plain0 in a letter0 the charges

against him in relation to the unpaid sales and deliveries made to

,A*A/ 6AR* and R)A'INA 6AR*0 2hen both clients do not have

approved credit lines:

%". ,hat the complainant 2as 2rongfully designated in the Notice to

E3plain 4Refer to Anne* +B- o Res/on0ent1s #osition #a/er5 as

a District )ales *anager 4D)* for brevity50 and the charges therein

2ere related to the functions of a D)* as 2ell 4?ob Description

*anual for D)* is here2ith attached as Anne* +D to D,-5:

%@. omplainant ER;AN,E) submitted his reply 4Refer Anne* +C-

o Res/on0ent1s #osition #a/er5 denying all allegations:

9!. Nevertheless0 respondent ;I,ARI- through *IRA''E)0 and not

through its -uman Resource Department0 sent complainant

ER;AN,E) a Notice of Decision 4Refer to Anne* +D- o

Res/on0ent1s #osition #a/er5 informing the latter that his

employment is being terminated:

9%. )uch termination is not supported by substantial proof that

complainant is indeed guilty of the charges0 the evidence are purely

fabricated statements or0 at best0 hearsay:

99. omplainant 2as not given opportunity to be heard before

;I,ARI-1s Administrative Investigation ommittee to 2hich every

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company employee0 ran7 and file or managerial0 2as entitled to as

a matter of company policy:

9$. omplainant ER;AN,E) is also entitled to shares of stoc7s

valued at PC09!!.!! per month as provided in his 'etter of

Appointment0 herein attached as Anne* +E-0 and Appointment H

Pay AuthoriGation0 herein attached as Anne* +F-0 the value of

2hich0 respondent ;I,ARI- has failed to release to complainant:

9=. omplainant ER;AN,E) is also entitled to the o2nership of the

company vehicle subect of the car plan provided for in his 'etter of

Appointment 4Anne* +E to E,-5 and Appointment H Pay

AuthoriGation 4Anne* +F-50 already having fully paid for the same:

ISS)E

,2 W3et3er or not Com/lainant CERVANTES 4as ille5all6

0ismisse0.

72 W3et3er t3e 8om/lainant is entitle0 to reinstatement an0

ba894a5es.

:2 W3et3er or not Com/lainant is entitle0 to re8ei!e t3e !al"e o

s3ares o sto89s an0 o4ners3i/ o!er t3e 8om/an6 8ar.

;2 W3et3er t3e 8om/lainant is entitle0 to moral an0 e*em/lar6

0ama5es an0 attorne61s ees

AR%)&ENTS AND DISC)SSIONS

ON THE FIRST ISS)E<

,. THE COLAINANT WAS ILLE%ALL( DIS&ISSED.

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,.A. COLAINANT IS A &ANA%ERIAL ELO(EE OF VITARICH

AT THE TI&E HIS DIS&ISSAL WHO ENJO(S SEC)RIT( OF

TEN)RE' AS #ROVIDED B( LAW.

,o begin 2ith0 it must be stressed that ER;AN,E) 2as a regular

employee until the time that he 2as illegally dismissed from his

employment.

Article 9"! of the 'abor ode of the Philippines provides& Art. 9"!. Regular and Casual Employment. J

,he provisions of 2ritten agreement to the contrary

not2ithstanding and regardless of the oral

agreement of the parties0 an employment shall be

deemed to be regular 43ere t3e em/lo6ee 3as

been en5a5e0 to /erorm a8ti!ities 43i83 are

"s"all6 ne8essar6 or 0esirable in t3e "s"al

b"siness or tra0e o t3e em/lo6er0 333Provided, t3at an6 em/lo6ee 43o 3as

ren0ere0 at least one 6ear o ser!i8e' 43et3er

s"83 ser!i8e is 8ontin"o"s or bro9en' s3all be

8onsi0ere0 a re5"lar em/lo6ee 2ith respect to

the activity in 2hich he is employed and his

employment shall continue 2hile such activity

e3ists. (Emphasis supplied).K ,he primary standard to determine a regular employment is the

reasonable connection bet2een the particular activity performed by the

employee in relation to the usual business or trade of the employer. ,he test

is 2hether the former is usually necessary or desirable in the usual business

or trade of the employer. %

1 De Leon vs. NLRC, GR No. 70705, Aug. 21, 1989

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By virtue of the nature of his employment as stated above0 the

activities that complainant performed are necessary or desirable in the

usual business or trade of ;I,ARI- as engaged in the business of

manufacturing and selling of animal feeds and health products to its

consumers. It can be gleaned further by their individual length of service to

;I,ARI-0 2hich obviously e3ceeded the statutory period of at least one 4%5

year of service0 omplainant 2as indeed a regular employee of ;I,ARI-

2hen the 2as dismissed from their employment.6urthermore0 Article 9C@ of the 'abor ode of the Philippines provides&

Art. 9C@. Security of Tenure. J In cases of

regular employment0 the employer shall not

terminate the services of an employee e3cept for a

ust cause or 2hen authoriGed by this ,itle. 3 3 3 K

+hile the aforementioned provision finds better application to regular ran7#and#file employees0 it is not0 ho2ever0 completely 2ithout application to

managerial employees.

?urisprudence dictates that even managerial employees are entitled to

security of tenure. +hile an employer has its o2n interests to protect0 and

pursuant thereto0 it may terminate a managerial employee for a ust cause0

such prerogative to dismiss or lay off an employee must be e3ercised

2ithout abuse of discretion. Its implementation should be interpreted 2ith

compassion and understanding. ,he employer should bear in mind that in

the e3ecution of said prerogative0 2hat is sta7e only is not only the

employee1s position but his livelihood. ,he fact that one is a managerial

employee does not by itself e3clude him from the protection of the

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constitutional guarantee of security of tenure.(aglutac v !"RC, Commart

#Phil.$ %nc., &.R. !o '*+, Sept -, -/)

,.B THE CA)SES FOR DIS&ISSAL WERE NOT S)BSTANTIALL(

#ROVEN.

,he po2er to dismiss is the normal prerogative of the employer and

generally0 the latter may dismiss his employees for ust and authoriGed

cause. -o2ever0 the employer is bound to e3ercise caution in terminating

the services of his employees and must not be arbitrary and capricious. 9

Article 9"9 of the 'abor ode provides for ust causes in 2hich an

employer may terminate his employee&

a) Serious misconduct or 0illful diso1edience 1y the employee of

the la0ful orders of his employer or representative in

connection 0ith his 0or2;

1) &ross and ha1itual neglect 1y the employee of his duties;c) 3raud or 0illful 1reach 1y the employee of the trust reposed

in him 1y his employer or duly authori4ed representative

d) Commission of a crime or offense 1y the employee against

the person of his employer or any immediate mem1er of his

family or his duly authori4ed representative; and

e) 5ther causes analogous to the foregoing.

As a general rule0 employers are allo2ed 2ider latitude of discretion in

terminating the employment of managerial personnel or those 2ho0 2hile

not of similar ran70 perform functions 2hich by their nature reuire the

employerLs full trust and confidence. ,his must be distinguished from the

case of ordinary ran7#and#file employees0 2hose termination on the basis of

these same grounds reuires a higher proof of involvement in the events in

uestion: mere uncorroborated assertions and accusations by the employer

2ill not suffice. (Coca6Cola 7ottlers Philippines, %ncorporated vs. !"RC, et.

8l, &.R. !o. */'+, 8pril +, -).

2 Rance, et al. vs. NLRC, GR No. 68147, une 30, 1988

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+hile the charges alleged by respondent ;I,ARI- constitute

violations of Art. 9"90 Par. 4c50 ;I,ARI- nevertheless0 failed to substantially

prove the same.

6irst and foremost0 the alleged uestionable transactions could not

have been performed by complainant as they do not pertain to the functions

and responsibilities of complainant. In fact0 the Notice to E3plain 4Refer to

Anne* +B- o Res/on0ent1s #osition #a/er5 received by ER;AN,E) 2as

addressed to a District )ales *anager0 and the charges therein are mainly

for selling and delivering products to clients 2ithout credit lines 2hich are

essentially functions of a D)* as a sales agent. Respondent ;I,ARI-1s D)*

?ob Descriptions *anual 4Anne* +D-5 provides that the D)*1s duties and

responsibilities include opening ne2 accounts0 coordinate 2ith the 6eed

Production )ection to ensure the availability of stoc7s for delivery0 facilitate

the sales and deliveries of the products0 and prepare and submit reports.

+hile complainants duties and functions as Regional )ales *anager0 on the

other hand0 is primarily to help the D)* in promoting ;I,ARI-1s products

to customers0 and monitor the sales and collections of the D)* based on the

latter1s reports. learly0 any unauthoriGed sales could not be attributed to

the R)*. ,his is further evidenced by the letter0 dated December %90 9!!@0

made by D)* NER0 admitting that it 2as her 2ho arranged for the sales

to be made under the name of another account 2hich is ?)IE (ARIA

4Anne* +B-5. *oreover0 the sales involved in the allegations occurred before

complainant ER;AN,E)1 tenure as R)* for (en. )antos began0 and during

such time 2hen complainant 2as still the R)* for entral ;isayas.,he allegations of connivance to conceal the said transactions from the

7no2ledge of respondent ;I,ARI- must also fail in the face of substantial

evidence to the contrary. If there really 2as an attempt to conceal the

transactions0 D)* NER0 2ould not have had the representative of

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,A*A/ 6AR* sign the Delivery Receipts and )ales Invoices0 such act

controverts the entire theory of concealment. And if respondent company

truly had no 7no2ledge of said transactions0 then ?F),IN -. (AR)F,A

4(AR)F,A for brevity5 of the redit and ollection Department could not

have sent a bill addressed directly to *I'A(R) ,A*A/. ,his proves that

respondent ;I,ARI-0 in fact0 had 7no2ledge that deliveries 2ere made not

to ?)IE (ARIA0 but to *I'A(R) ,A*A/.6urthermore0 granting0 for the sa7e of argument0 that there 2as

connivance0 complainant ER;AN,E) could not have been part of it. As

previously stated0 complainant1s role0 in relation to sales0 is limited to

managing the sales team by monitoring the same through the reports

prepared and submitted by the D)*. 'oo7ing into the process flo2chart of

respondent ;I,ARI-0 the D)* refers the sales and orders to the redit and

ollection Department0 headed by (AR)F,A0 to determine the status of the

client1s credit line. Fpon approval by the latter0 the order is then referred to

the Accounting Department for further processing. 6rom there0 it is then

subected to the approval of the 6ield )ales *anager0 A'BER, . PPF)

4PPF) for brevity50 and lastly0 to *IRA''E). And finally upon approval0 it is

(AR)F,A 2ho instructs the stoc7s custodian0 a certain BFBN( BENI,E0 to

release the products for delivery. No2here in the processing of sales and

deliveries is complainant ER;AN,E)1 approval reuired. ,hus0 respondent

;I,ARI- could not possibly present documentary evidence sho2ing

ER;A,E)1 direct involvement in the uestioned transactions.Respondent1s only basis for complainant1s involvement as sho2n in the

former1s Audit Report 4Refer to Anne* +A- o Res/on0ent1s #osition

#a/er50 is the alleged statement of N) NER that ER;AN,E) had

7no2ledge of such transactions. ,his is once again belied by NER1s letter

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4Anne* +B-50 2hich 2as addressed to the complainant0 admitting to the

performance of such transactions and e3plaining the reason for such.omplainant ER;AN,E) also could not be said to have been remiss in

the performance of his duties0 for although respondent ;I,ARI-0 through

the D)* NER0 has been selling and delivering products to the ,A*A/

6AR*0 the latter only became an official client of respondent 2hen

complainant processed the application of ,A*A/ 6AR* for a credit line0

2hich 2as subseuently approved on *ay %%0 9!!@0 herein attached as

Anne* +% to %,-. 6urthermore0 complainant ER;AN,E) 2as among

those 2ho recommended that legal action be ta7en against *I'A(R)

,A*A/ for non#payment of her outstanding balance0 herein attached as

Anne* +H-.-aving stated all that0 it is note2orthy that the uestioned

transactions 2ere a series of sales that transpired over a period of time. -ad

it been a one#time transaction0 it 2ould have raised the possibility that there

could0 in fact0 be an attempt to conceal the transaction. But seeing as the

transactions 2ent on for a certain period0 it 2ould be logical to believe that

by the time ,A*A/ 6AR* and R)A'INA 6AR* had placed their subseuent

orders0 the approving authorities shall have already noticed that the Delivery

Receipts and )ales Invoices0 2hile under the name of ?)IE (ARIA0 2ereactually signed and ac7no2ledged by a different client. ,his 2ould sho2 that

the authorities such as (AR)F,A and *IRA''E)0 approved such orders even

2hen the previous Receipts and Invoices contained discrepancies0 or 2ere

signed by a different client. ,hese circumstances should confirm the theory

that selling to and placing orders for clients 2ithout a credit line0 under the

names of clients 2ith credit lines0 is indeed an accepted company practice.

ther2ise0 it should be the aforementioned authorities 2ho approved such

sales and orders that should be held liable for negligently approving the

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same despite the e3istence of anomalies in the previous sales invoices and

delivery receipts.,.C. COLAINANT WAS NOT ACCORDED #ROCED)RAL D)E

#ROCESS.Based on the facts stated0 it is apparent that the complainants 2ere

not accorded procedural due process. (ranting arguendo that the dismissal

2as founded on any of the said grounds0 the same is still considered as

illegal for 2ant of compliance 2ith the procedural process of dismissal.If the employee committed an act 2hich 2as a la2ful cause or

ustification for his dismissal0 the employer should give him the opportunity

to e3plain or present his side. ,here should not be an outright termination of

the services of the employee 2ithout affording him due process$. It is further

reuired by the Implementing Rules of Boo7 80 Rule %0 Paragraph 4d5 of

Department rder No. @ )eries of %@@C of the Department of 'abor and

Employment0 that the follo2ing shall be observed&

-. 8 0ritten notice served on the employee specifying the ground9s for

termination, and giving said employee reasona1le opportunity

0ithin 0hich to e:plain his side;. 8 hearing or conference during 0hich the employee concerned, 0ith

the assistance of the counsel if he so desires is given opportunity to

respond to the charge, present his evidence, or re1ut the evidence

presented against him;. 8 0ritten notice of termination serve on the employee, indicating

that upon due consideration of all circumstances, grounds have

1een esta1lished to ustify his termination.

In addition to these reuirements provided for by e3isting la2s and

urisprudence0 respondent ;I,ARI-1s o2n policies provides that the

e3istence of causes to penaliGe andMor terminate an employee must be

determined by their Administrative Investigative ommittee. In

3 Ro!usta Ag"o #a"$ne %"o&ucts, 'nc. vs. Go"o(!ale(, GR No 80500, ul) 5,1989

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complainant1s case0 ho2ever0 all the aforementioned reuirements 2ere

capriciously bypassed by *IRA''E).In terminating complainant0 *IRA''E) issued a Notice to E3plain

4Refer Anne* +B- o Res/on0ent1s #osition #a/er50 2ithout being

sanctioned by their -uman Resource Department0 reuiring complainant

e3plain0 in a letter0 the charges against the latter. learly0 this is not the

hearing or conference contemplated by la2. )ubseuent thereto0 *IRA''E)0

again 2ithout being sanctioned by the -uman Resource Department0 and

upon his o2n discretion0 issued the Notice of Decision 4Refer to Anne* +D-

o Res/on0ent1s #osition #a/er50 terminating complainant1s employment.

?urisprudence dictates that 2hile a managerial employee may be

dismissed merely on the ground of loss of confidence0 the matter of

determining 2hether the cause for dismissing an employee is ustified on the

ground of loss of confidence cannot be left entirely to the employer.=

It is also 2orth mentioning that prior to complainant1s termination0

there 2as already a rising conflict bet2een complainant ER;AN,E) and

*IRA''E). ,his 2as due to the fact that the former has been criticiGing

*IRA''E)1 performance as ;ice President for ;is#*in perations for allo2ing

the manufacture and sale of lo2 uality products0 2hich the complainant

substantiated through the e3pert findings 4Anne* +C-5 of respondent

;I,ARI-1s o2n uality assurance personnel.,hese circumstances indicate bad faith on the part *IRA''E) in

capriciously and immediately dismissing complainant ER;AN,E) to the

preudice of the latter1s right to procedural due process.ON THE SECOND ISS)E

7. COLAINANTS ARE ENTITLED TO REINSTATE&ENT WITH

BAC=WA%ES

)ince the complainant 2as illegally dismissed from his employment0

3e is entitle0 to reinstatement /l"s ba894a5es.

4 De Leon vs. Nat$onal La!o" Relat$ons Co($ss$on, 100 *CRA 691 +1980

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Article 9C@ of the 'abor ode of the Philippines provides that an

employee 2ho is unustly dismissed from 2or7 is entitled to reinstatement

2ithout loss of seniority rights and other privileges and to his full

bac72ages0 inclusive of allo2ances0 and to his other benefits or their

monetary euivalent computed from the time his compensation 2as 2ithheld

from him up to the time of his actual reinstatement.K Bac72ages0 in general0 are granted on grounds of euity for earnings

2hich a 2or7er or employee has lost due to his illegal dismissal>.learly0 as respondent ;I,ARI- failed to comply 2ith the

reuirements of due process0 both procedurally and substantively0 the

complainant 2as illegally dismissed. -ence0 the complainant is entitled to

reinstatement and bac72ages computed from the actual period 2hen the

complainant 2as unla2fully prevented from 2or7ing.ON THE THIRD ISS)E

:. COLAINANTS ARE ENTITLED TO THE FOLLOWIN% CLAI&S<

:.A Val"e o s3ares o sto89s<

Fpon his employment0 a 'etter of Appointment 4Anne* +E-5 and

Appointment H Pay AuthoriGation 4Anne* +F-5 2as issued by respondent

;I,ARI-0 stating that part of his monthly benefits shall be shares of stoc7s

of respondent ;I,ARI- valued at PC09!!.!!. ,he same0 ho2ever0 2as not

released to him upon his termination. And having been earned by

complainant during his employment0 he has a vested right over said shares

of stoc7s 2hich cannot be preudiced by his termination.

:.b O4ners3i/ o!er t3e 8om/an6 8ar<

Also provided in complainant ER;AN,E)1 'etter of Appointment

4Anne* +E-5 and Appointment H Pay AuthoriGation 4Anne* +F-5 2as the

grant of a car plan0 valued at P=$C0>!!.!! 2orth of car loan credits.

-o2ever0 the vehicle subect of complainant1s car plan 2as appraised only

5

-o"$llo vs. Leoga"&o GR No. 77205, #a) 27, 1991

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for P$!!0!!!.!!. Although the plan 2as for a >#year term0 the deductions

and amortiGations 2ere computed and fi3ed on the basis of the P=$C0>!!.!!

car plan. -ence0 after being employed for three 4$5 years and four 4=5

months0 the amortiGations shall have sufficed to fully pay for the subect

vehicle0 and o2nership thereof rightfully belongs to complainant.

ON THE FO)RTH ISS)E

;. COLAINANTS ARE ENTITLED TO DA&A%ES

;.A. &oral Dama5es

,he fact that complainant 2as not afforded of both substantive and

procedural due process on their arbitrary dismissal0 it is but proper for

them to be a2arded moral damages.,he employer is liable for damages under the provisions of Article

999! of the ivil ode providing for damages for breach of contractK

2here the employer acted fraudulently or in bad faith.8

Ergo0 2here the dismissal of the employee 2as attended by bad

faith or constituted an act oppressive to labor0 or 2as done in a manner

contrary to morals0 good customs or public policy0 an a2ard of moral

damages is ustified. Evidently0 the foregoing are present in this instant

case due to the failure of ;I,ARI- to observe the reuirements of both

substantive and procedural due process.;.B. E*em/lar6 Dama5es

+here the employee1s dismissal 2as effected 2ithout substantive

and procedural fairness0 an a2ard of e3emplary damages in their favor

can only be ustified if her dismissal 2as effected in a 2anton0 oppressive

or malevolent manner.C Inasmuch as the manner in 2hich the complainant 2as dismissed

2as done in a 2anton0 arbitrary and unustifiable manner0 they are

entitled to e3emplary damages.;.C. Attorne61s Fees

6 CLLC .G. Goc/angco o"e"s n$on, et. al.vs. NLRC, GR No. 67258, #a)30,19887 Roc/e %/$l$$nes vs. NLRC, GR. No. 832335, ct. 95, 1989

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omplainants 2as compelled to litigate and incur e3penses to

protect and vindicate their rights. -ence0 it is only proper that attorney1s

fees be a2arded euivalent to ten percent 4%!5 of the claims of the

complainants.

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#RA(ER

WHEREFORE, premises considered0 it is most respectfully prayed of

this -onorable 'abor Arbitration Branch to render udgment in favor of

complainant declaring his dismissal illegal and order respondents the

follo2ing&

%. the reinstatement of complainant 2ith bac72ages:

9. the delivery of shares of stoc7s and the company vehicle subect ofthe car plan policy to complainant:

9. the payment of separation pay0 in lieu of reinstatement:$. to pay moral and e3emplary damages: and=. Attorney1s 6ees

omplainant further prays for other relief ust and euitable.

RESPECTFULLY SUBMITTED this OOO day of November 9!%! in Davao

ity0 Philippines.

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ATENEO LE%AL SERVICES OFFICE

ounsel for the omplainant96 Dotter2eich -all

?acinto )treet0 Davao ity "!!!,el. No. 4!"95 99C#C=8!

B/&

?ose


20/21

Republic of the Philippines5 I , / 6 D A ; A 5 s.s.3 ##################################3

VERIFICATION an0 CERTIFICATION OF NONFOR)& SHO##IN%

I, WARLORD JOHN R.CERVANTES,, of legal age0 6ilipino and a resident of Davao ity0 upon my oath0 depose and state ,-A,&

%. I am the complainant in the above#entitled case: I have caused thepreparation of this Position Paper: and I have read the contents hereof anddeclare that the same to be true and correct based upon authentic recordsobtained in this case.

9. I ER,I6/ 6FR,-ER that I have not therefore commenced any other action orproceeding involving the same issues in the )upreme ourt0 ourt of Appeals0 or any tribunal or any agency:

$. ,o the best of my 7no2ledge0 no such action or proceeding is pending in the)upreme ourt0 ourt of Appeals0 or any other ,ribunal or agency:

=. If there is any such action or proceedings 2hich is either pending or mayhave been terminated0 I 2ill state the status thereof: and

>. If thereafter I learn that a similar action or proceeding has been filed or is

pending before the )upreme ourt0 ourt of Appeals0 and any other tribunalor agency0 I underta7e to report that fact 2ithin five 4>5 days there from tothe ourt or agency0 2herein the original pleading and s2orn certificationcontemplated herein have been filed.

In 2itness 2hereof0 I hereby affi3 my signature this OOOOOOOOOOOOOOOOOOOO0 at Davao ity0 Philippines.

OOOOOOOOOOOOOOOOOOOOOOOOOOOO

WARLORD JOHN R.CERVANTES Affiant

SUBSCRIBED AND SWORN TO before me this OOOOOOOOOOOOOOOOOOOO0 atDavao ity0 Philippines. Affiant e3hibited to me his ommunity ,a3 ertificate 2ithnumber OOOOOOOOOOOOOOOOOOO0 issued on OOOOOOOOOOOOOO0 issued by the ity of Davao.

Doc. No. &OOOOOOO:

Page No.&OOOOOOO:Boo7 No.&OOOOOOO:)eries of 9!%!.

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Documents

Cervantes vs Vitarich