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Republic of the Philippines NATIONAL LABOR RELATIONS COMMISSION Regional Arbitration Branch No.

V Legazpi City

AAA, Complainant, RAB V Case No. -versusXXX Corporation, as represented by xxx in her capacity as President and YYY Corporation as represented by yyy in his capacity as General Manager, Respondents. x-----------------------------------------------x

06-00123-45

POSITION PAPER
FOR THE COMPLAINANT
COMPLAINANT, by himself, respectfully submits this position paper, together with the attached supporting affidavit and documents to wit:

PARTIES COMPLAINANT AAA (herein after referred to as the COMPLAINANT) is Filipino, of legal age, married and a resident of Sipi, Daraga, Albay where he may be served with summons, orders and other quasi-judicial processes. RESPONDENT XXX Corporation (herein after referred to as XXX for brevity) is a corporation duly organized and existing under the laws of the Philippines and licensed by the Department of Labor and Employment to record, process and deploy land-based workers for jobs abroad, possessing full capacity to sue and be sued, with primary business address at 1234 Gen. Luna Street, Paco, Metro Manila. It may be validly served with summons, orders and other quasi-judicial processes through its counsel Teresita Navarro Santos with office address at Unit 303 HHC Bldg. 636 Victoria cor. Basco Streets, Intramuros, Manila. RESPONDENT xxx is impleaded herein in her capacity as president of XXX Corporation.

ANI VS. YWA HUMAN RESOURCE CORP. ET AL. RAB V CASE NO. 06-001410-10 POSITION PAPER FOR COMPLAINANT

RESPONDENT YYY Corporation (YYY for brevity) is a foreign corporation located at Jubail, Kingdom of Saudi Arabia. RESPONDENT yyy is being impleaded herein in his capacity as its General Manager.

STATEMENT OF THE NATURE OF THE CASE This is a case for illegal dismissal and for non-payment of salaries filed by the complainant against the respondents.

STATEMENT OF FACTS In February 2010, the COMPLAINANT applied for and was hired as an electrical supervisor by YYY through its local employment agency XXX.1 The period of his employment was supposed to be for 12 months with a salary of one thousand nine hundred dollars ($1,900.00) per month. started working for YYY on February 7, 2010. Sometime in the latter part of May 2010, during one of the companys progress meetings, the COMPLAINANT asked Mr. S.W. Kim, YYYs electrical superintendent regarding the status of his employment in the company as part of the electrical department since the construction of the petrochemical plant which he working on was almost finished. Mr. S.W. Kim replied and told the COMPLAINANT that he will have to wait until next month to determine his employment status.3 In the morning of June 9, 2010, upon his arrival at the worksite, the COMPLAINANT was told by Mr. S.W . Kim that XXX, you have to go referring to the fact that his services with the company were already being terminated since it was the order from the companys electrical manager, Mr. J.W. Kang. After being informed of such fact, the COMPLAINANT was asked to leave the company
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The COMPLAINANT

1 2

See the affidavit of the Complainant XXX, attached and made an integral part hereof as Annex A As evidenced by the Employment Contract between YYY and the complainant attached and made an integral part hereof as Annex B 3 Paragraphs 4 and 5 of Annex A

ANI VS. YWA HUMAN RESOURCE CORP. ET AL. RAB V CASE NO. 06-001410-10 POSITION PAPER FOR COMPLAINANT

premises and await the release of his exit visa, airline ticket to the Philippines, as well as his salary for the last ten (10) days of work.4 After receiving his exit visa, airline ticket, and his salary for the last ten (10) days of work and two certifications from YYY, the COMPLAINANT left for the Philippines on June 11, 2010.5 The COMPLAINANT filed a complaint against the RESPONDENTS for illegal dismissal and non-payment of salaries and damages with the Honorable Regional Arbitration Branch on June 21, 2010. The parties were unable to arrive at an amicable settlement of the case during the mandatory conference due to XXXs adamant refusal to pay the COMPLAINANTs monetary claims. Hence, this position paper.

ISSUES The issues submitted to the Honorable Labor Arbiter for resolution are: 1. Whether or not the COMPLAINANT was illegally dismissed from his employment. 2. Whether or not the COMPLAINANT is entitled to his monetary claims. .

DISCUSSION/ARGUMENTS First Issue: On Illegal Dismissal THE COMPLAINANT WAS DISMISSED WITHOUT ANY JUST OR AUTHORIZED CAUSE AND WITHOUT OBSERVING DUE PROCESS THE RESPONDENTS ARE LIABLE FOR ILLEGAL DISMISSAL An employer may terminate an employment for just cause as provided by Article 282 of the Labor Code, to wit:
Art. 282. Termination by employer. An employer may terminate an employment for any of the following causes:

4 5

Paragraphs 5, 6 and 7 of Annex A Paragraph 8 of Annex A

ANI VS. YWA HUMAN RESOURCE CORP. ET AL. RAB V CASE NO. 06-001410-10 POSITION PAPER FOR COMPLAINANT

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 representatives; and e. Other causes analogous to the foregoing.

Employment may likewise be terminated at the instance of the employer for any of the authorized causes provided under Articles 283 and 284 of the Labor Code, to wit:
Art. 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year. Art. 284. Disease as ground for termination. An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his coemployees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.

The fundamental guarantees of security of tenure and due process dictate that no worker shall be dismissed except for just and authorized cause provided by law and after due notice and hearing.6 In the instant case, there is no showing that the COMPLAINANT was dismissed from his employment from YYY due to any of the just or authorized causes provided under the Labor Code. In fact, the only reason given to the COMPLAINANT by YYY through its electrical superintendent S.W. Kim was that he was being let go by YYY because it was the order from the companys electrical manager, J.W. Kang.7 Certainly, by no stretch of the imagination could

6 7

Chiang Kai Shek College v. Court of Appeals, G.R. No. 152988, August 24, 2004 Annex A

ANI VS. YWA HUMAN RESOURCE CORP. ET AL. RAB V CASE NO. 06-001410-10 POSITION PAPER FOR COMPLAINANT

this reason be considered as the just or authorized cause for dismissal which is being contemplated under the law. The COMPLAINANTs dismissal from his employment having been made without any just or authorized cause leads to the inevitable conclusion that the COMPLAINANT was indeed illegally dismissed. YYY likewise failed to observe due process in dismissing the COMPLAINANT by its failure to serve any written notice of termination upon the latter. Irrespective of whether the termination is for a just cause or an authorized cause, the requirements of due process shall not be dispensed with as provided under Section 2(d), Rule I, Book VI of the Implementing Rules of the Labor Code which reads:
"(d) In all cases of termination of employment, the following standards of due process shall be substantially observed: "For termination of employment based on just cases as defined in Article 282 of the Labor Code: "(i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side. "(ii) A hearing or conference during which the employee concerned, with the assistance of counsel, if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him. "(iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. "For termination of employment as defined in Article 283 of the Labor Code, the requirement of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional Office of the Department of Labor and Employment at least thirty days before effectivity of the termination, specifying the ground or grounds for termination. "If the termination is brought about by the completion of a contract or phase thereof, or by failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination."

In the case of Skippers Pacific, Inc. vs. Mira8, the Supreme Court held that:
Not only must the reasons for dismissing an employee be substantiated, the manner of his dismissal must be in accordance with governing rules and regulations. Otherwise the termination itself would be grossly defective, and illegal. This means that the requirements of due process must be observed. The employer is required to furnish
8

G.R. No. 144314, November 21, 2002

ANI VS. YWA HUMAN RESOURCE CORP. ET AL. RAB V CASE NO. 06-001410-10 POSITION PAPER FOR COMPLAINANT

the concerned employee with two written notices before his dismissal: (1) the notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice of the employers d ecision to dismiss him. This procedure is mandatory; otherwise the order of dismissal is void. (Emphasis supplied)

Likewise, in the case of Perez vs. Philippine Telegraph and Telephone Company9, it was correctly held that: Respondents illegal act of dismissing petitioners was aggravated by their failure to observe due process. To meet the requirements of due process in the dismissal of an employee, an employer must furnish the worker with two written notices: (1) a written notice specifying the grounds for termination and giving to said employee a reasonable opportunity to explain his side and (2) another written notice indicating that, upon due consideration of all circumstances, grounds have been established to justify the employer's decision to dismiss the employee. (Emphasis supplied) It bears stressing that in the instant case, no written notice regarding the termination of his employment was ever served upon the COMPLAINANT. First, there was no notice given by YYY apprising him of the particular acts or omissions for which his dismissal is sought. Second, neither was there any written notice served upon the COMPLAINANT of the employers decision to dismiss him. The only notice given to the COMPLAINANT was a verbal one which was made by S.W. Kim when he told the former that he was being let go because it was the order from YYYs electrical manager.10 Surely, this is not the written notice required by law. Such verbal notice does not even comply with the terms of the Employment Contract11 which provides that:
13. Termination of Contract Either party has the right to terminate this contract by giving the other party a thirty (30) days prior notice or an indemnity equal to the Employees wages for the notice period in lieu of the notice. The Employer has the right to terminate this contract anytime without prior notice, indemnity or severance pay upon the occurrence of any of the events set forth in clause 14 hereof. (Emphasis supplied)

G.R. No. 152048, April 7, 2009 Annex A 11 See Annex B


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ANI VS. YWA HUMAN RESOURCE CORP. ET AL. RAB V CASE NO. 06-001410-10 POSITION PAPER FOR COMPLAINANT

In the instant case, contrary to the above-cited provision of the contract, the COMPLAINANT was not provided any notice thirty (30) days prior to his termination. In fact, he was asked to leave the work premises immediately after he was informed of his dismissal and he was made to return to the Philippines only a few days thereafter.12 The COMPLAINANT has likewise not done any act warranting dismissal without any prior notice as provided by Clause 14 of the Employment Contract which reads: 14. DISMISSAL
Any of the following cases shall be the cause of the immediate dismissal of the Employee without any prior notice, indemnity or severance pay: 14-1 Being found guilty of criminal offense 14-2 Drinking of alcoholic beverages, dealing with obscene stuff, gambling, theft, fighting, destruction or instigation as such, and any other violation of Employers rules and regulations. 14-3 Any willful disobedience to lawful orders 14-4 Any attempt to slow down or delay his work 14-5 Absence from work without leave from the Employer or any other reasonable excuse. Deserting or work for any other Employer. 14-6 Divulgence of the Employers business secret 14-7 Habitual neglect of his duties or leaving his place of duty without leave from the Employers direct senior office during duty hours. 14-8 The Employees incapability of carrying out his duty being pronounced by the Employers appointed doctor because of his injuries, diseases or his personal physical/mental defect, which are not caused by his job.

This is supported by the fact that YYY has issued a Certification13 and a No Objection Certificate14 in favor of the COMPLAINANT stating that YYY has no objection for the COMPLAINANT to seek future employment with other concerns in Saudi Arabia and wishing him well in future endeavors. Indeed, it would be highly unlikely for YYY to issue these two Certificates if the COMPLAINANT was dismissed for any of the grounds mentioned in Clause 14 of the Employment Contract. At any rate, the above-cited provision could not apply in this case to the COMPLAINANT for being contrary to the provisions of the Labor Code requiring prior written notice in case of termination pursuant to the ruling of the Supreme

12 13

See Annex A Attached and made an integral part hereof as Annex C 14 Attached and made an integral part hereof as Annex D

ANI VS. YWA HUMAN RESOURCE CORP. ET AL. RAB V CASE NO. 06-001410-10 POSITION PAPER FOR COMPLAINANT

Court in the case of Philippine National Bank vs. Cabansag15 where it was held that:
In any event, we recall the following policy pronouncement of the Court in Royal Crown Internationale v. NLRC: x x x Whether employed locally or overseas, all Filipino workers enjoy the protective mantle of Philippine labor and social legislation, contract stipulations to the contrary notwithstanding. This pronouncement is in keeping with the basic public policy of the State to afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. For the State assures the basic rights of all workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work [Article 3 of the Labor Code of the Philippines; See also Section 18, Article II and Section 3, Article XIII, 1987 Constitution]. This ruling is likewise rendered imperative by Article 17 of the Civil Code which states that laws which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determination or conventions agreed upon in a foreign country. xxxx xxxx xxxx Truly, the contracting parties may establish such stipulations, clauses, terms and conditions as they want, and their agreement would have the force of law between them. However, petitioner overlooks the qualification that those terms and conditions agreed upon must not be contrary to law, morals, customs, public policy or public order. As explained earlier, the employment Contract between petitioner and respondent is governed by Philippine labor laws. Hence, the stipulations, clauses, and terms and conditions of the Contract must not contravene our labor law provisions. Moreover, a contract of employment is imbued with public interest. The Court has time and time again reminded parties that they "are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other." Also, while a contract is the law between the parties, the provisions of positive law that regulate such contracts are deemed included and shall limit and govern the relations between the parties. (Emphasis supplied)

The importance of observing the requirements of due process in terminating employees regardless of whether an employee is employed within the Philippines or abroad is given further emphasis in the case of PCL SHIPPING PHILIPPINES, INC. v. NLRC16, where it was held that:
Petitioners admit that they did not inform private respondent in writing of the charges against him and that they failed to conduct a formal investigation to give him opportunity to air his side. However, petitioners contend that the twin requirements of notice and hearing applies strictly only when the employment is within the Philippines and that these need not be strictly observed in cases of international maritime or overseas employment. The Court does not agree. The provisions of the Constitution as well as the Labor Code which afford protection to labor apply to Filipino employees whether working within the Philippines or abroad. Moreover, the principle of lex loci contractus (the law of the place where the contract is made) governs in this jurisdiction. In the present case, it is not disputed that the Contract of Employment entered into by and between petitioners and private respondent was executed here in the Philippines with the approval of the Philippine Overseas Employment Administration (POEA). Hence, the Labor Code together with its implementing rules and regulations and other laws affecting labor apply in this
15 16

G.R. No. 157010, June 21, 2005 G.R. No. 153031, December 14, 2006

ANI VS. YWA HUMAN RESOURCE CORP. ET AL. RAB V CASE NO. 06-001410-10 POSITION PAPER FOR COMPLAINANT

case. Accordingly, as to the requirement of notice and hearing in the case of a seafarer, the Court has already ruled in a number of cases that before a seaman can be dismissed and discharged from the vessel, it is required that he be given a written notice regarding the charges against him and that he be afforded a formal investigation where he could defend himself personally or through a representative. Hence, the employer should strictly comply with the twin requirements of notice and hearing without regard to the nature and situs of employment or the nationality of the employer. Petitioners failed to comply with these twin requirements. (Emphasis supplied)

Hence, based on the foregoing discussions, no other conclusion can be reached other than that the COMPLAINANT was illegally dismissed for lack of any just or authorized cause and for not being accorded his right to due process.

Second Issue: On Monetary Claims HAVING BEEN ILLEGALLY DISMISSED, COMPLAINANT IS ENTITLED TO HIS SALARIES FOR THE UNEXPIRED PORTION OF HIS CONTRACT

At the outset, paragraph 5 of Section 10 of R.A. 8042 or the Migrant Workers and Overseas Filipinos Act of 1995 as amended, expressly provides that:
xxx xxx "In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the migrant worker's salary, the worker shall be entitled to the full reimbursement if his placement fee and the deductions made with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.xxx (Emphasis supplied)

However, considering that the same provision has already been declared unconstitutional by the Supreme Court in the recent case of Serrano vs. Gallant Maritime Services, Inc.17, the COMPLAINANT is now entitled to his salaries for the unexpired portion of his contract. The dispositive portion of the afore-cited case reads:

WHEREFORE, the Court GRANTS the Petition. The subject clause "or for three months for every year of the unexpired term, whichever is less" in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED UNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1, 2005 Resolution of the Court of Appeals are MODIFIED to the effect that petitioner is AWARDED his salaries for the entire unexpired portion of his employment contract consisting of nine months and 23 days computed at the rate of
17

G.R. No. 167614, March 24, 2009

ANI VS. YWA HUMAN RESOURCE CORP. ET AL. RAB V CASE NO. 06-001410-10 POSITION PAPER FOR COMPLAINANT

US$1,400.00 per month. (Emphasis supplied)

Based on the abovementioned ruling, the COMPLAINANT in the instant case is entitled to his salaries for the unexpired portion of his contract which is seven (7) months and twenty-seven (27) days or from June 10, 2010 to February 7, 2010 computed at the rate of US$1,900.00 per month. With respect to who shall be liable for the payment of such salaries, Section 10 of R.A. 8042 likewise provides, to wit:
"SEC. 10. Money Claims.

xxx
"The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to de filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.xxx (Emphasis supplied)

The joint and solidary liability imposed by law against recruitment agencies and foreign employers is meant to assure the aggrieved worker of immediate and sufficient payment of what is due him. (Asian International Manpower Services, Inc. (AIMS) v. Court of Appeals18) Consequently, respondent XXX and YYY are joint and severally liable to the COMPLAINANT for the money claims to which the latter is entitled. COMPLAINANT is likewise entitled to an indemnity equal to his salary for thirty (30) days in lieu of the notice of termination which YYY failed to serve upon the former at least thirty (30) days prior to his dismissal as provided for under Clause 13 of the Employment Contract19, to wit:
13. Termination of Contract

Either party has the right to terminate this contract by giving the other party a thirty (30) days prior notice or an indemnity equal to the Employees wages for the notice period in lieu of the notice.xxx
18 19

G.R. No. 169652, October 9, 2006 Annex B

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ANI VS. YWA HUMAN RESOURCE CORP. ET AL. RAB V CASE NO. 06-001410-10 POSITION PAPER FOR COMPLAINANT

(Emphasis supplied)

Article 1306 of the Civil Code is explicit in providing that:


Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.

The same law also provides that: Art. 1158. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. Applying these principles in the instant case, the respondents should be held liable to pay the COMPLAINANT an indemnity equivalent to thirty (30) days salary for YYYs failure to provide him with the proper notice as provided under Clause 13 of the Employment Contract.

PRAYER WHEREFORE, premises considered, COMPLAINANT respectfully prays that judgment be rendered by the Honorable Labor Arbiter ordering the respondents to: 1. Pay the COMPLAINANT his salaries for the unexpired portion of his contract which is seven (7) months and twenty-seven (27) days or from June 10, 2010 to February 7, 2010 computed at the rate of US$1,900.00 per month; 2. Pay the COMPLAINANT US$1,900.00 or its peso equivalent as indemnity in lieu of notice as provided under Clause 14 of the Employment Contract;

Plaintiff further prays for such other reliefs as may be just and equitable under the premises. 3 September, 2010. Legazpi City. AAA Complainant

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