Republic of the Philippines

Department of Labor and Employment

National Labor Relations Commission
Regional Arbitration Branch No. 10
Cagayan de Oro City

Juan de la Cruz, NLRC CASE NO. RAB 222

Complainant,

- versus –

ABC Corporation represented by Chester Castanos,

Respondent
x---------------------------------------x

Position Paper for the Complainant

COMES NOW complainant, Juan de la Cruz, through the

undersigned counsel and unto this Honorable Office most respectfully
files this position paper and states:

Parties

1. Complainant, Juan de la Cruz, Filipino, of legal age, single and a

resident of 111 Upper Balolang, Cagayan de Oro City, Philippines.

2. The respondent, ABC Corporation, is a corporation duly organized

and existing in accordance to the laws of the Philippines, engaged in
the selling spare products of vehicles, with business address at
Carmen, Cagayan de Oro City and is represented by Chester
Castanos, Filipino, of legal age, married and resident of Carmen,
Cagayan de Oro City.

Statement of the Case

Herein complainant is employed as the supervisor for

operations of the respondent corporation. As a result of the
standardization and personal evaluation of the respondent
corporation, the complainant was then designated as supervisor for
sales and was also transferred to another branch. This transfer and
designation was done without due process and thus constitutes as a
constructive dismissal, contrary to law.
 The complainant therefore respectfully prays for the payment by
the respondent corporation of separation pay, 13th month pay, holiday
pay, service incentive leave benefits and for back wages.

Statement of the Facts

1. On January 3, 2017, complainant was hired by the respondent

corporation as its supervisor for operations.

2. On March 1, 2017, respondent corporation conducted a

standardization and personal evaluation exam. The exam results
shows the herein complainant is no longer qualified to serve as
supervisor for operations hence he was transferred and designated
as supervisor for sales. Complainant alleged that his current
employment is very hard unbearable.

3. On March 2, 2017, complainant went to the NLRC alleging that the

respondent corporation demoted him and that his designation and
transfer as a supervisor for sales is a constructive dismissal.

4. On April 1, 2017, a mediation process was made.

5. On May 2, 2017, probability of settlement through conciliation

process was of no avail.

6. On June 1, 2017, a Pre-Trial was conducted.

Issue

1. Whether or not the complainant was constructively dismissed when

he was transferred and designated as supervisor for sales from being
supervisor for operations.

DISCUSSIONS

Complainant was constructively dismissed.

While it is true that management has the prerogative to transfer

employees, the exercise of such right should not be motivated by
discrimination, made in bad faith, or effected as a form of punishment
or demotion without sufficient cause. When the transfer is
unreasonable, unlikely, inconvenient, impossible, or prejudicial to the
employee, it already amounts to constructive dismissal. In
constructive dismissal, the employer has the burden of proving that
the transfer and demotion of an employee are for just and valid
grounds, such as genuine business necessity. Should the employer
fail to overcome this burden of proof, the employee’s transfer shall be
tantamount to unlawful constructive dismissal. ICT Marketing
Services, Inc. vs., Mariphil L. Sales, (G.R. No. 202090, September 9,
2015)

Constructive dismissal exists where there is cessation of work

because “continued employment is rendered impossible,
unreasonable or unlikely, as an offer involving a demotion in rank or a
diminution in pay” and other benefits. Aptly called a dismissal in
disguise or an act amounting to dismissal but made to appear as if it
were not, constructive dismissal may, likewise, exist if an act of clear
discrimination, insensibility, or disdain by an employer becomes so
unbearable on the part of the employee that it could foreclose any
choice by him except to forego his continued employment. Morales vs
Harbour Center Port Terminal, Inc. (G.R. No. 174208, January 25,
2012)

Respondent Corporation failed to discharge this burden of proof

considering the circumstances surrounding the transfer and
designation of the complainant on March 1, 2017. The examination
was made during the same day that the complainant was transferred.
The complainant was not given due process when he was transferred
and designated as supervisor on Sales which is relatively far, in terms
of skills and abilities required from his first position and thus, must be
considered as a demotion. The respondent corporation also failed to
give training to the complainant to prepare him for his new position.

The complainant’s transfer was likewise so abrupt, considering that

he was just hired for the position three months prior to his transfer,
after being able to comply with the qualifications required for his
position. In the case at bar, herein complainant employment became
unbearable when he was designated and transferred from supervisor
of operations to supervisor of sales. Such transfer and designation
caused due hardship since the new position requires different skills
and abilities.

The said transfer was obviously unreasonable, not to mention

contrary to experience, logic, and good business sense, that is, to
assign a person to a new position which he or she is not equipped.
This being the case, the transfer amounted to constructive dismissal
 PRAYER

Wherefore, all premises considered, it is respectfully prayed that the

respondent corporation be ordered to pay to the complainant,
separation pay, service incentive leave, holiday pay, 13th month pay
and back wages.

The complainant likewise prays for other reliefs and remedies that the
court may deem proper.

March 12, 2018, Cagayan de Oro City.

REESE OGUIS
Counsel for the Complainant
PTR No. 222222/ 01-01-19
IBP No. 333333/ 01-01-19
MCLE Compliance No. 12345/ 01-01-18
Roll No. 55555555555555
143 Love Blg, Marfori Compound, Pabayo St, Cagayan de Oro, 9000

Copy Furnished:

1. Chester Castanos
Personally received:
Date: March 11, 2018

2. ABC Corporation
Personally received:
Date: March 11, 2018
REPUBLIC OF THE PHILIPPINES)
CITY OF CAGAYAN DE ORO ) Sc.

VERIFICATION AND CERTIFICATION AGAINST FORUM

SHOPPING

I, JUAN DELA CRUZ, Filipino, of legal age and with residence at 111
Upper Balolang, Cagayan de Oro City, after having been duly sworn,
depose and state:

1. That I am the complainant in the above entitled complaint.

2. That I have caused the preparation by our counsel of said

complaint.

3. That I have read the allegations therein contained, and that the
same are true and correct of my personal knowledge or based on
authentic records.

4. I further certify under oath that I have not theretofore commenced

any action or filed any claim involving the same subject matter or
cause of action ; that to the best of my knowledge, no other action or
proceedings in the Supreme Court, the Court of Appeals; and that if I
should thereafter learn that a similar action or proceedings has been
filed or is pending before the SC, CA or any other tribunal or
government agency, I undertake to report such fact within five (5)
days there from to the Court or Government Agency wherein the
original pleading and sworn certification contemplated herein have
been filed.

IN WITNESS WHEREOF. I have hereunto set my hands this March

12, 2018 in Cagayan de Oro City, Philippines.
JUAN DE LA CRUZ
Affiant

SUBSCRIBED AND SWORN to before me this 12th day of March,

2018, in the City of Cagayan de Oro, Philippines, affiant having
exhibited to me his Postal ID No. 1234 issued until September 2,
2018.

Doc. No. : 3 REESE B OGUIS

Page No.: 2 Notary Public until December 31, 2018
Book No.3 PTR No. 222222/ 01-01-19
Series of 2018 IBP No. 333333/ 01-01-19
MCLE Compliance No. 12345/ 01-01-18
Roll No. 55555555555555