Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VII
Cebu City

AR P. SEBIOS, JR.
Complainant,

-versus- NLRC RAB-VII CASE NO. 02-0313-13

QUALFON PHILIPPINES, INC.,

JANET M. BORGONIA
Respondents.

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POSITION PAPER FOR COMPLAINANT

COMES NOW, the Complainant, through undersigned counsel,

unto this Honourable Labor Arbiter, most respectfully avers: That,

PREFATORY STATEMENT

This is a case filed for illegal dismissal with prayer for separation
pay filed by Complainant who held a position of Operations Supervisor,
receiving a monthly pay of Twenty Eight Thousand One Hundred
Twenty One and Fourteen Centavos (PhP 28, 121.14), for the
Respondent Corporation Qualfon Philippines, Inc., its Human
Development Department herein represented by its Director,
respondent Janet M. Borgonia. Complainant was hired on June 2007
and was terminated without legal basis and in violation of his right to
due process on February 8, 2013.

THE PARTIES
 The Complainant is Filipino, single and a resident of 0166 H.
Abellana St., CCF Compound, Canduman, Mandaue City 6014. He may
be served with legal processes and orders through counsel at 1920 San
Miguel, Apas, Cebu City 6000.

Respondent Qualfon Philippines, Inc., is a corporation duly

organized under Philippines laws engaged in the Business Process
Outsourcing.
Respondent Janet M. Borgonia is the Director for the Human
Development Department of the respondent corporation.
Both respondents have business address at 9/F Skyrise 3, Qualfon
Building, Asia Town I.T Park, Apas, Cebu City 6000, where they may be
served with legal processes and orders from this Honourable Office.

FACTS OF THE CASE

The very basis of the termination was embodied in a Notice to

Explain (NTE) dated December 29, 2012, herein attached as Annex
A. The Complainant was asked to explain in writing within 48 hours
from receipt of the Notice for Violating the Operation Attendance Policy.
One to which the Complainant complied with.

Circumstances Prior to the NTE

On December 26 and 27 2012, the complainant was absent due

to Upper Respiratory Tract Infection. A copy of the medical certificate is
attached as Annex B.
The complainant is well aware of the fact that should he absent
himself from work, he has to call the Qualfon Hotline to inform the
Office, otherwise he will be tagged as No Call No Show, which is a
serious policy violation.
Thus, on December 26 2012, he tried calling the Hotline but
unfortunately, for technical reasons beyond the control and knowledge
of the complainant, the Hotline would always prompt a Call Ended
status once dialled.
To ensure that he follows the procedure to the letter, he sent an
SMS Message to the Hotline detailing his attempt to call and the
unfortunate incident of being unable to formally make a call. He also
detailed that he will be absent on the said dates due to his health
condition. A copy of the screen shots of the attempted calls and sms
message is attached as Annex C to C-1.
When he reported for work on December 28, 2012, he filed the
necessary leave application and proper attachments with his Shift
Manager, Kethrin Labrague.

No Call No Show

Unfortunately, despite the effort and the good faith of the

Complainant, he was still tagged to have violated the No Call No
Showpolicy of the company which earned him six (6) points in the
Attendance point policy which would warrant an investigation and the
possibility of termination. Surprising to the complainant, he was issued
the Notice to Explain dated December 29, 2012.
Thus, the case at bar.

ISSUES

1. Whether or not the complainant violated the policies of the

Respondent Corporation thus warranting dismissal from
employment;
2. Whether or not the dismissal was illegal; and
3. Whether or not the complainant is entitled to separation pay.

DISCUSSION

The circumstances involving the complainant did not suddenly

occur. It was a product of months of abuse of the Respondents that has
led to inhuman, if one might say, working environment, which the
complainant suffered through. Seeing that they could not force him to
resign despite the difficult situation and humiliating conditions they
have imposed upon him, they took the opportunity of his justified
absence on December 26 and 27 to fully put into place their plan of
severing his employment, and calling it a justified dismissal. The
Complainant shall show that the Respondents have violated the law
and that his termination was illegal and without valid cause.

Unsuccessful constructive dismissal

Months prior to the Notice to Explain and the complainants

termination, the Respondent Corporation has already laid down a
difficult and unhealthy working environment for the complainant.
Being an operation supervisor, the complainant is expected to
lead a team or at least supervise a team. Unfortunately, for the
complainant sometime in mid 2012, his team was removed and he was
demoted into becoming a measly agent. He was ordered, without
reason or explanation, to take calls as if he was an agent and not a
supervisor. Further, he was removed from the roster of Staff members
(supervisor). The most that the management can tell him is that there
is no demotion as his pay is the same. It would seem that the
respondent have a confused notion of demotion and of labor laws.
Despite the whispers of humiliation that ruined the name of the
complainant, he continuously worked his way through the year. He
suffered through doing the jobs not within his position primarily for
survival and to ensure that he keeps earning for his family. Thus,
despite the obvious manipulation of the Respondent, they could not
force him to resign. Comes the opportunity to give his termination a
semblance of legality, the Respondent took advantage of the
Complainants health.

Violation of Operations Attendance Policy

 Under the Notice to Explain, the complainant was asked to
explain why no
Disciplinary action may be taken against him for violating the
Operations Attendance Policy. Apparently, he has already accumulated
six (6) points which warrants termination.
The six (6) points alone was for the absences he incurred on
December 26 to 27 which was aggravated by the fact that he was
tagged No Call No Show for not calling the hotline and informing the
company that he will be absent.
In response, the complainant detailed in his explanation the
reason why no action should be taken against him. A copy of said
explanation is attached as Annex D.
Further, on January 5, 2013, he filed an attendance tag dispute
with his Managers regarding the improper tagging of his absence for
December 26 and 27, 2012. A copy is attached as Annex E.
In these explanation and dispute, the Complainant has detailed
the circumstances involving is supposed violations of the Attendance
Policy.
But it would seem that the Respondents were already fixed in
terminating him as the same appeared to not have been taken into
consideration.
Thus, the rather, unremarkable Notice of Termination that did not
even explain or resolve in anyway the reason as to how the
Complainant supposedly violated the policy warranting the
termination. A copy of said Notice of Termination is attached as Annex
F.

Illegality of Dismissal

Under the Labor Code of the Philippines and what is applicable in

the case at bar, an employee may be terminated for the following
reasons:

1. Serious Misconduct;
2. Willful disobedience / Gross and habitual neglect of duties;
3. Fraud and Willful breach or offense;
 4. Commission of a crime or offense; and
5. Other analogous causes. (Art 282)

Thus, considering that this involves termination, it is the duty of

the employer to prove that indeed the employee has acted in such a
way that termination is the only remedy given to the employer.
Further, aside from the substantial due process requirement of
the law, there is as well a requirement of procedural due process
detailed in Department Order No. 9, dated June 21, 1997 which
requires that for Just Causes to terminate, the employer must serve:

1. Written notice served on the employee specifying the ground for

termination, and giving to such employee reasonable opportunity
within which to explain his side. (Rule XXIII, section 1 (a) )

2. 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. (Rule XXIII,
section 2 (1) (b))

Substantive Due Process

Considering that the highest form of disciplinary action was the

action to be taken by the Respondents, it would have been prudent for
them not to haphazardly go through the documents submitted by the
Complainant, lest, it be interpreted as just them going through the
motion of granting due process, but already decided on termination.

What is distinctively an act of injustice on the part of the

Respondents in the case at bar is that despite the explanation and the
dispute of the complainant, they never bothered resolving said raised
matters and discuss and investigate the same. Should the complainant
have known that his efforts would fall on deaf ears, why bother to go
through the process?
Aside from the fact that the Notice to Explain did not even detail
in any way what and which part of the Operations Attendance Policy
the complainant violated and how the complainant violated the same.
 The question now is, how does one put up a proper and
substantial defense, if he is not even informed properly as to what he
violated in the first place?
It would seem that the Respondents take termination of
employees as a package deal. Plus the fact that the Respondents
expect the Complainant to be a mind reader and know upon request
exactly what they meant.
But that is not what substantive due process is about.
Substantive due process requires that there is legal basis for
termination. Looking at the Notice of Explanation, it would appear that
even the Respondent is uncertain as to what was violated as they
could not detail the same.
Further, the absence of the complainant on those days, including
whatever the employer could throw in, were justified and documented.
In fact, the employer had access to all these documents. They need
only to go through their records. Instead, they never bothered to go
through the documents and just went on to issue a notice of
termination.
The Complainant need not remind the Respondent that the
burden to prove that there is a just cause to terminate an employee is
the duty of the Employer, unless, the Respondents are higher than the
law and much more knowledgeable than the Philippine Supreme Court.
In the case at bar, the supposed Attendance violations were all
justified. The Complainant is armed with medical certificates and proof
that he goes through the proper channels to inform the Respondents
that he would be absent. Being so, how and in what way was there,
therefore, a violation of any policy?

Procedural Due Process

It need not be discussed extensively how the Respondents

violated the Procedural Due Process requirement of the law. True
enough, they did issue Two Notices, One to explain, the other to
terminate the complainant.
 But going through these notices, the violation is evident. It does
not direct the attention of the complainant to what are the specific
violation that needed explaining about and the Notice of Termination
does not specify the basis for his termination.
Being so, aside from the fact that there exist no legal basis for his
termination, the Respondents did not even and failed to follow the
procedural due process requirement of the law.

Separation Pay

Considering that the Respondent had no basis to terminate the

employment of the Complainant, the complainant is entitled to
separation pay of one (1) month pay for every year of service, with six
(6) months of service taken as a whole year. As provided for by law.
Thus, the complainant is entitled to a total of One Hundred Sixty
Eight Thousand Seven Hundred Twenty Six and Eighty Four Centavos
(PhP 168, 726.84).

PRAYER

WHEREFORE, premises considered, the Complainant, respectfully

prays from this Honourable Office to rule that:

1. The Complainant did not violate any of the policies of the

Respondent Corporation;
2. The Complainant was illegally terminated as there is no
legal basis for his termination; and
3. The Complainant is entitled to separation pay in the amount
of One Hundred Sixty Eight Thousand Seven Hundred
Twenty Six and Eighty Four Centavos (PhP 168, 726.84).
Such other reliefs that are deemed appropriate under the
premises are otherwise respectfully prayed for.

RESPECTFULLY SUBMITTED.
 25 March 2013, Cebu City

CHRISTIE ANNE S. CONALES

Attorney-at-Law

Copy Furnished:

QUALFON PHILIPPINES, INC. R.R No:______________

JANET M. BORGONIA Date:________________
9/F Skyrise 3, Qualfon Building, Post
Office:___________
Asia Town I.T Park, Apas,
Cebu City 6000

EXPLANATION
The Respondents were furnished copies through registered mail
due to lack of manpower.

CHRISTIE ANNE S. CONALES

Republic of the Philippines )

City of Cebu ) S.S.
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 VERIFICATION AND CERTIFICATION
OF NON FORUM SHOPPING

I, AR P. SEBIOS, JR., of legal age, Filipino, married, and a resident of

0166 H. Abellana St., CCF Compound, Canduman, Mandaue City 6014,
subscribing under oath, hereby depose and state that:

1. I am the Complainant of the foregoing case;

2. I have caused the preparation of the foregoing Position Paper;
3. I have read all the material allegations contained herein and that
they are true and correct to my own personal knowledge and based
on authentic records;
4. I have not filed a similar petition for the same causes of action
against the respondent before any court or tribunal;
5. That to the best of my knowledge and belief, there is no action or
proceeding of a similar nature pending any court or tribunal;
6. 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 the
fact within five (5) days therefrom to this Honorable Court.

IN WITNESS WHEREOF, I have hereunto affixed my signatures this 25th

day of March 2013 at Cebu City, Philippines.

AR P. SEBIOS, JR.
Affiant

SUBSCRIBED AND SWORN TO before me this ____ day of ______________________ 2013,

at Cebu City. Affiant exhibited to me her ______________________ with I.D. No.
_____________________ issued by ________________________ to expire on
_________________________. She is the same person who signed before me the foregoing
document and acknowledged that she executed the same freely and voluntarily.

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2013.