Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City
ESPIRITU A. ESPENIDO
Complainant,
-versus-

NLRC NCR CASE NO. 01-00994-13

ARPAPHIL SHIPPING CORP.,

NATIVIDAD A. PAPPAS,
Respondents.
x------------------------------------------------------------x

POSITION PAPER
(FOR THE COMPLAINANT)
COMPLAINANT, unto the Honorable Office, most respectfully submits this
Position Paper and in support thereof, avers as follows:
This is a complaint for ILLEGAL DISMISSAL with a claim for reinstatement,
full backwages, damages and other monetary benefits.
THE PARTIES
Complainant ESPIRITU A. ESPENIDO is a Filipino, of legal age, with
address at B12 Lot 30 Nepat St., SMC, Salawag, Dasmarinas, Dasmarinas
Cavite, where he could be served with summons and other processes.
Respondent ARPA PHIL SHIPPING CORP. is an entity organized under
Philippine laws, while individual respondent NATIVIDAD A. PAPPAS is the
president/owner/general manager and/or the responsible officer thereof, with
address at 108 G/F Dynavision Bldg., Rada St., Makati City, where they could be
served with summons, notices and other processes.
STATEMENT OF FACTS
Complainant is a REGULAR employee of respondent ARPA PHIL with the
designation of Safety Officer. In view of his background in enforcement, his duties
include providing security for respondent Pappas and family. As evidence thereof,
attached herewith is a photocopy of complainants company Identification Card
and Certification of Employment duly issued by respondent Pappas, which are
hereto attached as ANNEXES A and B, respectively.

According to the complainant, he was hired as a security officer on April

10, 1997 by the late Mr. George Pappas, then president of respondent company
and husband of respondent Pappas, upon the recommendation of the late Sen.
Robert Barbers.
Upon Mr. George Pappas death sometime in 2001, respondent Pappas
became the president of the respondent company. Thereafter, respondent
Pappas required the complainant to be a STAY-IN SECURITY OFFICER and was
ON CALL for TWENTY FOUR (24) HOURS a day for six (6) days a week. He has
no fixed rest day period as this depends entirely upon respondent Pappas
decision. For his work, complainant is paid a MONTHLY SALARY of Php12,500.
He was not given any night shift differential, overtime pay or Service Incentive
Leave Pay (SILP). Likewise, complainant was not paid any premium pay for work
rendered on a Sunday or holiday.
The complainant has faithfully and diligently carried out all his duties with
the respondents since 1997. However, on December 29, 2012, complainant was
ILLEGALLY and UNJUSTLY DISMISSED from his work when he was verbally
abused and thereafter verbally dismissed by respondent Pappas.
Thus, as narrated by the complainant, on said date at around 8:00 in the
morning, respondent Pappas telephoned the complainant in the office and told
him:
"PUTANG-INA MO WALA KANG UTANG NA LOOB. AYOKO
NG MAKITA KA SA OPISINA. BINUBUHAY KO ANG PAMILYA MO.
WALA KANG UTANG NA LOOB."
In spite of these harsh words, complainant still reported for work on
January 2, 2013. However, when two of respondent Pappas children arrived from
abroad last January 4, 2013, they were surprised to find the complainant still
inside the company premises. Thereafter, Joey Malate, personal driver of the
respondents, confided to the complainant that the two were asking why the
complainant was still in the office when he was already dismissed from work by
their mother, referring to respondent Pappas.
On Monday, January 7, 2013, complainant went directly to Mr. Radito
Mendoza, Finance Manager of respondent company, and asked him about the
status of his employment and if he was going to get any separation pay from the
company. Mr. Mendoza told the complainant that he was not going to get any
money from the respondents. Hence, this complaint.
THE ISSUES
1.

WHETHER OR NOT THE COMPLAINANT WAS ILLEGALLY

DISMISSED.

2.

WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO

REINSTATEMENT WITH BACK WAGES AND OTHER MONEY CLAIMS;
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3.

WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO

ACTUAL, MORAL AND EXEMPLARY DAMAGES, PLUS ATTORNEYS FEES.
ARGUMENTS AND DISCUSSION

COMPLAINANT WAS ILLEGALLY AND UNJUSTLY

DISMISSED WITHOUT DUE PROCESS OF LAW
Complainant no doubt was a REGULAR EMPLOYEE of the respondents.
He was hired first as a safety and security officer by the respondents to provide
them with security. His work is necessary and desirable to respondents principal
business and trade. Being a regular employee, complainant is therefore entitled
to SECURITY OF TENURE as enshrined in the Constitution and protected by law.
In the case at bar, it is clear that the complainant was ILLEGALLY and
UNJUSTLY DISMISSED by the respondents when on December 29, 2012, he
was verbally abused and thereafter verbally dismissed by respondent Pappas. As
narrated by the complainant, on said date at around 8:00 in the morning,
respondent Pappas telephoned the complainant in the office and told him:
"PUTANG-INA MO WALA KANG UTANG NA LOOB. AYOKO
NG MAKITA KA SA OPISINA. BINUBUHAY KO ANG PAMILYA MO.
WALA KANG UTANG NA LOOB."
His dismissal was confirmed when two of respondent Pappas children
inquired on why the complainant was still reporting for work when as far as they
know, he was already dismissed by their mother since last year. Complainants
dismissal was also validated by respondents finance manager.
NO proper notice to explain was ever given to the complainant; NO due
process was afforded to the complainant; and, NO proper notice of termination
was given to him, in complete DISREGARD of the law. As explained by the
Supreme Court in the case of JARDIN vs. NLRC [G.R. No. 119268. February 23,
2000]:
As consistently held by this Court, termination of
employment MUST be effected in accordance with law. The just
and authorized causes for termination of employment are
enumerated under Articles 282, 283 and 284 of the Labor Code.
The requirement of notice and hearing is set-out in Article 277 (b) of
the said Code. Hence, petitioners, being employees of private
respondent, can be dismissed only for just and authorized cause,
and after affording them notice and hearing prior to termination. In
the instant case, private respondent had no valid cause to terminate
the employment of petitioners. Neither were there two (2) written
notices sent by private respondent informing each of the petitioners
that they had been dismissed from work. These lack of valid cause
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and failure on the part of private respondent to comply with the twinnotice requirement underscored the illegality surrounding
petitioners dismissal. (Emphasis ours.)
Accordingly, when the complainant verbally dismissed by respondent
Pappas herself, his constitutional right to security of tenure was clearly violated by
the respondents. This was his reward after faithfully serving the respondents
since 1997 or for almost 16 YEARS.
COMPLAINANT IS ENTITLED TO
REINSTATEMENT AND FULL BACKWAGES
As a direct consequence of complainants unjust termination from service
without due process of law, the complainant is entitled to reinstatement with full
back wages and salaries. Back wages represent the compensation which an
employee could have earned but was not collected because of the unjust
dismissal. In general, it is granted on ground of equity for earnings lost due to
illegally effected termination.
As clearly stated under Article 279 of the Labor Code, An employee who
is unjustly dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full back wages inclusive of
allowance, and to his other benefits of their monetary equivalent computed from
the time his compensation was withheld from him up to the time of his actual
reinstatement.
RESPONDENTS FAILED TO PAY THE COMPLAINANT
HIS STATUTORY BENEFITS AS REQUIRED BY LAW
To reiterate, complainant, starting 2001, became respondents STAY-IN
SECURITY OFFICER and was ON CALL for TWENTY FOUR (24) HOURS a day
for six (6) days a week. He was not given any night shift differential, overtime pay
or Service Incentive Leave Pay (SILP) as mandated by the Labor Code.
Likewise, complainant was not paid any premium pay for work rendered on a
Sunday or holiday.
As provided under Republic Act. 8188, the respondent must be ordered by
the Honorable Commission to pay DOUBLE THE UNPAID BENEFITS OWING TO
THE EMPLOYEE. Thus, Republic Act 8188 provides that:
SECTION 1. Section 12 of Republic Act Numbered Sixty-seven
hundred twenty- seven is hereby amended to read to as follows:
The employer concerned shall be ordered to pay an arnount
equivalent to DOUBLE the unpaid benefits owing to the employees:
Provided. That payment of indemnity shall not absolve the employer
from the criminal liability imposable under this Act.
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IN VIEW OF THE EVIDENT BAD FAITH,

RESPONDENTS ARE LIABLE FOR MORAL AND
EXEMPLARY DAMAGES AND ATTORNEYS FEES
In illegal dismissal cases, moral and exemplary damages are awarded to
compensate the affected employee for diverse injuries such as mental anguish,
besmirched reputation, wounded feeling and social humiliation suffered as a
consequence of the termination. It is, however, not enough that such injuries have
arisen, it is essential that they have sprung from the wrongful act of the employer
in illegally dismissing herein complainant in bad faith (National Sugar Refineries
Corp. vs. NLRC, 308 SCRA 599).
In the case at bar, respondent Pappas use of profanities such as Putangina mo wala kang utang na loob. Ayoko ng makita ka sa opisina. Binubuhay ko
ang pamilya mo," at the time when she verbally dismissed the complainant clearly
shows evident BAD FAITH on her part.
As a result of his unjust dismissal, the complainant suffered severe mental
anguish and sleepless nights on account of the sudden loss of income to sustain
his family; and also suffered besmirched reputation and wounded feelings due to
the unfounded imputation of wrongdoings upon him by the respondents. Clearly,
the respondents are in bad faith for their wanton disregard of the law and are,
therefore, liable for moral and exemplary damages.
Finally, in the pursuit of justice, the complainant was forced to secure the
services of counsel, thereby incurring legal fees in the process. Accordingly,
respondents should also be ordered to pay attorneys fees equal to ten percent of
the amount of wages recovered as provided for in Art. 111 of the Labor Code.
Settled is the rule that in actions for recovery of wages, or where an
employee was forced to litigate and, thus, incur expenses to protect his rights and
interests, a monetary award by way of attorneys fees is justifiable under Article
111 of the Labor Code; Section 8, Rule VIII, Book III of its Implementing Rules;
and paragraph 7, Article 2208 of the Civil Code. The award of attorneys fees is
proper, and there need not be any showing that the employer acted maliciously
or in bad faith when it withheld the wages. There need only be a showing that the
lawful wages were not paid accordingly. (Kaisahan vs. Manila Water Company,
G.R. NO. 174179, November 16, 2011)

PRAYER
WHEREFORE, premises considered, it is respectfully prayed of this
Honorable Office to render judgment in favor of the complainant and against the
respondents, as follows:

1. To declare the dismissal of the Complainant as illegal, the same having

been effected without a just cause and without due process;
2. To order the respondents to reinstate the complainant to his former
position without loss of seniority rights and other privileges, and if this is
no longer possible, to pay the complainant his separation pay.
3. To order the respondents SOLIDARILY liable to pay the complainant
his full BACK WAGES, inclusive of allowances and other benefits to be
computed from the time his compensation was withheld from him up to
his actual reinstatement;
4. To pay the complainant his money claims consisting of non-payment of
service incentive leave, overtime pay, nightshift differential, premium
pay for work rendered on a Sunday, holiday or rest day, and other
benefits as mandated by law;
5. To award the complainant moral and exemplary damages, plus
Attorneys Fees.
Other just and equitable remedies are likewise prayed for.
Quezon City, March 18, 2013.

ATTY. PEARLITO B. CAMPANILLA

Suite B 2nd Floor Overland Park Bldg.,
No. 245 Banawe St. cor. Quezon Ave., Q.C
PTR 772308 01-18-13 QC
IBP Life 010564 2-3-12 Pasig City
Roll No. 37522
MCLE Compliance No. III - 0015235

Copy Furnished:
ARPA PHIL SHIPPING CORP
NATIVIDAD A. PAPPAS
108 G/F Dynavision Bldg., Rada St., Makati City