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REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT


NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
QUEZON CITY

ROWENA C. RAMOS
Complainant,

-versus- NLRC-NCR Case No. 02-01461-15

B. BRAUN MEDICAL SUPPLIES,


INC., JULIAN GERARD NAIR,
and MA. CECILIA VICTORIA H.
CANNON,
Respondents.
x---------------------------------------------x

POSITION PAPER

Complainant Rowena Ramos, by counsel, respectfully


submits this Position Paper unto this Honorable Office.

Prefatory Statement

1. “Redundancy exists where the services of an


employee are in excess of what is reasonably demanded by the
actual requirements of the enterprise. A position is redundant
where it is superfluous, and superfluity of a position or
positions may be the outcome of a number of factors, such as
over-hiring of workers, decreased volume of business, or
dropping of a particular product line or service activity
previously manufactured or undertaken by the enterprise. The
employer’s exercise of its management prerogative, however, is
not an unbridled right that cannot be subjected to this Court’s
scrutiny. The exercise of management prerogative is subject to
the caveat that it should not be performed in violation of any
law and that it is not tainted by any arbitrary or malicious
motive on the part of the employer.”1

2. For the implementation of a redundancy program to


be valid, the employer must comply with the following
requisites: (1) written notice served on both the employees and
the Department of Labor and Employment at least one month
prior to the intended date of retrenchment; (2) payment of
separation pay equivalent to at least one month pay or at least
one month pay for every year of service, whichever is higher;
(3) good faith in abolishing the redundant positions; and (4)
fair and reasonable criteria in ascertaining what positions are
to be declared redundant and accordingly abolished. 2

3. In the present case, these strict jurisprudential


guidelines were not complied with as Complainant’s dismissal
was tainted with malice and bad faith and the decision
declaring Complainant’s position redundant was not based on
a fair and reasonable criteria.

Parties

4. The Complainant herein is Rowena C. Ramos,


Filipino, of legal age, married, and a resident of Lot 14, Block 6
Palmera Homes IV, Taytay, Rizal.

5. Respondent B. Braun Medical Supplies, Inc. is a


subsidiary of the global network B. Braun Group, a
corporation established under Philippine laws. It is one of the
country’s leading healthcare suppliers of medical and
pharmaceutical products, with business address at 15/F Sun
Life Centre, 5th Avenue corner Rizal Drive, Bonifacio Global
City, 1634 Taguig City.
1
Arabit, et al. vs. Jardine Pacific Finance, Inc., G.R. No. 181719, 21 April 2014.
2
Asian Alcohol Corporation vs. NLRC, et al., G.R. No. 131108, 25 March 1999.
6. Individual Respondent Julian Gerard Nair, a
Singaporean expatriate, is the Managing Director heading B.
Braun Medical Supplies, Inc.

7. Individual Respondent Ma. Cecilia Victoria H.


Cannon is the HR Manager who manages the human resource
affairs of B. Braun Medical Supplies, Inc.

Statement of Facts

8. On 6 January 2005, Complainant was hired as


Product Manager of B. Braun Medical Supplies, Inc. (“B.
BRAUN”).

9. From 2005-2015 she worked as Product Manager


for its Infusion Therapy Group (“ITG”) Division.

10. In November 2013, she was notified that she would


be transferred from the ITG division to the Anesthesia &
Surgery (“ANSUR”) Division effective January 2014 as a
Product Manager handling three product groups: Plasma
Volume Replacement (“PVR”), Value Added Drugs (“VAD”), and
Central Venus Catheter (“CVC”).

11. Prior to the service upon her of a termination letter


by Julian Gerard Nair, Managing Director of B. BRAUN, on 22
January 2015, Complainant has been Product Manager of B.
BRAUN for more than ten (10) years. Her latest monthly salary
was PHP 94,528.00, with 13th month pay of one month
salary, Target Incentive equivalent to 6 months salary and
Target Stretch Incentive equivalent to 5 months salary. She
received other benefits as will be shown in more detail in a
later section.3

3
Attached hereto as Annex “A” is a Certification issued by Respondent Company
12. The succession of events prior to the service upon
Complainant by Mr. Nair of the termination letter on 22
January 20154 clearly shows that her termination was illegal:

12.1. On January 9, 2015, Mr. Nair called Mr.


Glenn Mondonedo, the Business Unit Head of the
Clinical Nutrition (“CN”) and Anesthesia & Surgery
(“ANSUR”) Divisions and Complainant’s immediate
superior, to a meeting. In the said meeting, Nair
instructed Mondonedo to prepare a criteria/position
paper to restructure the product group assignments 5 of
Product Managers of ANSUR and consolidate the ANSUR
business and in effect to declare complainant’s position
as Product Manager redundant.

12.2. Mr. Mondonedo disagreed with Mr. Nair’s


proposal for two main reasons, to wit: 1) he believes that
it was not going to be a viable decision considering the
ambitious growth targets set for 2015 for the 2 growth
product groups, PVR (40% growth) and VAD; 2) in his
opinion, complainant was the best person that should be
retained among the three marketing managers in the
ANSUR group considering her business acumen, proven
track record and variety of experience.

12.3. Because of Mr. Mondonedo’s disagreement


with Nair, the HR Manager, Ms. Ma. Cecilia Victoria
Cannon, was summoned to the same meeting and was
instructed to remove ANSUR Division from Mondonedo’s
responsibility, who, henceforth, was tasked with CN only.

12.4. On 12 January 2015, Mr. Nair called a


meeting with the management team of ANSUR
announcing the impending reorganization and the fact
that MR. Mondonedo will no longer be their immediate

4
A photocopy of which is attached hereto as Annex “B”
5
Attached hereto as Annex “C” is the Organizational Chart of the Critical Care Division
of B. Braun prior to the reorganization effected by Mr. Julian Nair.
superior. Instead, they were told that they will be
reporting to Mr. Nair as their immediate boss. 6

12.5. On 14 January 2015, the ANSUR managers


were invited to a one-on-one meeting with Mr. Nair. In
that meeting, they were individually informed of their
respective roles in the reorganization. During her session
with Mr. Nair, Complainant was informed of her
supposed termination. During said meeting, Complainant
asked Mr. Nair if he knew Philippine Labor Laws, to
which Mr. Nair said an emphatic “NO!” and he arrogantly
added “I DON’T NEED TO KNOW!”

12.6. Then on January 22, 2015, the employer,


through Mr. Nair, served a termination letter to
Complainant. The reason proffered is that the position
being occupied by Complainant has been rendered
redundant by an impending reorganization.

13. Mr. Nair’s decision to terminate Complainant was


arbitrary and whimsical and not based on sound judgment or
on a reasonable and fair criteria.

13.1. Only two (2) days have elapsed from the time
that Mr. Nair instructed the ANSUR team, the product
manager of whom was the Complainant, that they would
be reporting directly to Mr. Nair instead of Mr.
Mondonedo to the time that Complainant was informed
of her impending termination. It is not possible for Mr.
Nair to be able to reasonably assess and evaluate Ramos’
performance in such a short period of time.

13.2. Mr. Nair violated the company’s “last in-first


out” policy when he did not consider moving complainant
to the Clinical Nutrition first since the company hired a
new product manager for the said subdivision, Ms. Fely
6
Attached hereto as Annex “D” is the Organizational Chart of the Critical Care Division
of B. Braun after the reorganization effected by Mr. Julian Nair.
Grace Fernandez, who was still on probationary status,
having been hired only in October 2014. Considering
seniority as a retention criterion, based on the company’s
own policies, Complainant deserved priority for
continuous employment as a regular employee.

13.3. Furthermore, the new set-up effected by


B.BRAUN still has the same number of personnel (five)
for the Marketing group of Critical Care. Likewise, the
same functions will be played by each member. This
belies the claim that the supposed re-organization is
aimed to consolidate the business.

14. Clearly, from the above, Mr. Nair’s actions are


tainted with malice and bad faith, such that he even went to
the extent of hastily relieving Complainant’s immediate
superior of his responsibilities in ANSUR, just so that he can
have Complainant report to him directly and implement his
decision in an arbitrary manner without regard for the
business consequences of his decision.

15. This malice and bad faith on the part of Mr. Nair
could be proven by a succession of analogous events in the
past where he made several attempts to remove the
Complainant from B. BRAUN. Dismissing Complainant on the
ground of redundancy was his last and final try to dismiss her
illegally. In the past, Mr. Nair had already demonstrated
malice and ill will towards Complainant. The following outlines
Mr. Nair’s specific acts of discrimination against Complainant:

15.1. Analogous to the January 2015 incident, in


June 2013, the managers of the Infusion Therapy Group
(“ITG”) Division where Complainant previously belonged
were also asked to report to Mr. Nair directly as their
immediate superior. At that time he subjected her to
rigorous meetings requiring presentations almost three
times a week, but because she was trained to handle
stress, she was able to cope up with the series of
meetings.

15.2. Only a few days after the new reporting


arrangement, or on 24 June 2013, she received an e-mail
to explain certain alleged “lapses”. 7

15.3. Not content with the e-mail he also called her


to his office very briefly just to tell her that she should
reply to his e-mail to make things official. Thus, she
replied to his e-mail on 25 June 2013 stating that out of
the 33 items listed to be accomplished, she was able to
deliver 29 items and had valid explanation why the 4
remaining items were not delivered.8

15.4. Immediately upon receipt of her explanation,


he e-mailed her on 26 June 2013 with the closing
sentence, “This serves as your written warning.” 9

15.5. Complainant afterwards set a meeting with


the HR manager and clarified that Mr. Nair was wrong
about Complainant’s so-called “lapses”. She further told
the HR manager that she knows her rights and that what
Mr. Nair was trying to do was not consistent with due
process. Since nothing was mentioned on this topic
afterwards, Complainant took this as confirmation of her
suspicion that Mr. Nair just tried to pin her down
unsuccessfully and she was able to steer clear of his
plans.

15.6. On 23 September 2013, the management


team of ITG was called to Mr. Nair’s office and were
informed that there was a supposed reorganization. They
were informed that he was assigning a new employee,
Raul Lasquety, barely 2 years with B. Braun and whose

7
Attached hereto as Annex “E” is the 24 June 2013 e-mail of Mr. Nair.
8
Attached hereto as Annex “F” is Complainant’s reply to
9
Attached hereto as Annex “G” is the 26 June 2013 e-mail of Mr. Nair.
current position was not even in sales and marketing but
allied services, i.e. Marketing Services and head of the B.
Braun educational arm, Aesculap Academy. The
announcement was done within the management team of
ITG business unit, but considering the B. Braun
network, it has already gone around that Raul was to be
assigned as head of the business unit (BU). For some
reason, only known to Mr. Nair, However, and despite
that fact that word has already gone around that Raul
was to be promoted Business Unit Head (“BUH”), Mr.
Nair named a totally different person in November.
Complainant surmises that it has probably reached Mr.
Nair that Complainant commented that with Raul as
Business Unit Head, she could, in effect, still be calling
the shots in the Business Unit.

15.7. Then in November 2013, (analogous to the 14


January 2015 incident), Complainant was called to Mr.
Nair's room and was informed that along with the
announcement of a new BUH, she will be moved from
ITG to ANSUR.

15.8. The announcement that she will be re-


assigned to a smaller business unit constituting only
20% of the total B. Braun Business from the ITG
Business Unit which constitutes more than 50% of the
total B. Braun business was a very humbling experience
and it devastated Complainant. She has rendered service
in the ITG Business Unit for more than 9 years at that
time and has considered ITG her family where she was
the matriarch. At the time she was reassigned to ANSUR,
Complainant was the major decision maker in the ITG
Business Unit.

15.9. Despite the acts of constructive dismissal due


to her sudden re-assignment to the smaller business unit
ANSUR, Complainant tried her best to improve the
business in ANSUR. In fact, her immediate superior in
ANSUR, Mr. Mondonedo, was very vocal in
acknowledging her gains for 2014 in the new business
assignment: i.e. improvement of business consistent with
global priorities; bringing in new MD prescribers and
achieving goodwill from top MDs in Anesthesia during
her short stay in the new business unit. Her product
group had an uptrend despite market realities and she
managed to hit the quarter target.

15.10. Despite this, Mr. Nair demonstrated his


disdain for Complainant and his unreasonableness
toward her further when, in the Appraisal period 2014
(for 2013), Mr. Nair gave her a very low rating that
resulted in a very minimal salary increase of only 2.5%
salary increase when the average was 10%. This was
despite the fact that she performed higher than average
with 103% Sales performance in 2013. As company
practice, 60% of performance merit rating was based on
objective factors such as sales figures, growth and
profitability figures.

15.11. Mr. Nair also singled out Complainant in the


implementation of a new appraisal method. The basis of
her performance appraisal was changed only in
September 2013, which was not consistent with the
appraisal of the rest of the Marketing and Sales
Managers in Hospital Care. By September, almost three-
fourths of the year has gone by and figures already made
evident that they will be hitting their 2013 targets which
could have ensured complainant of a good performance
rating. She discussed this explanation with Mr. Nair.

15.12. Despite her explanation, Mr. Nair still gave


Complainant a very low performance appraisal. To avoid
further conflict, she just signed the appraisal form,
telling herself that it was just salary increase and that in
time, when Mr. Nair, a Singaporean, eventually leaves the
country, his replacement will evaluate things under a
new perspective and will acknowledge Complainant's
contributions and hopefully adjust her salary structure.

16. From the above, it could clearly be seen that the


decision of the Managing Director, Mr. Nair, to render
Complainant’s position as redundant is just a ploy, the last of
his numerous attempts since 2013 to remove Complainant
from B. Braun despite her proven track record and consistent
performance from the year 2005 to 2015.

ISSUES

1. WHETHER OR NOT COMPLAINANT WAS ILLEGALLY


DISMISSED.

2. WHETHER OR NOT RESPONDENTS ARE JOINTLY AND


SEVERALLY LIABLE FOR DAMAGES.

3. WHETHER OR NOT COMPLAINANT IS ENTITLED TO


RECOVER JUST COMPENSATION AND SEPARATION PAY.

4. WHETHER OR NOT RESPONDENTS ARE LIABLE FOR


ACTUAL, MORAL AND EXEMPLARY DAMAGES.

5. WHETHER OR NOT COMPLAINANT IS ENTILED TO


RECOVER ATTORNEY’S FEES AND LITIGATION EXPENSES
FROM RESPONDENTS.

Discussion

Complainant’s dismissal
was not based on any just
or authorized cause. There
was no valid dismissal on
the ground of redundancy
for failure of the
Respondents to show that
Complainant’s position
has become superfluous.
x----------------------------------------------x

17. While it is true that the complainant is a managerial


employee and employers are generally allowed a wider latitude
of in terminating the employment of managerial personnel,
managerial employees, like rank-and-file employees, are also
entitled to security of tenure and due process, both
constitutional rights that the employer is not allowed to
disregard.

18. Redundancy exists where the services of an


employee are in excess of what would reasonably be demanded
by the actual requirements of the enterprise. A position is
redundant when it is superfluous, and superfluity of a position
or positions could be the result of a number of factors, such as
the over-hiring of workers, a decrease in the volume of
business or the dropping of a particular line or service
previously manufactured or undertaken by the enterprise. An
employer has no legal obligation to keep on the payroll
employees more than the number needed for the operation of
the business.10

19. The Supreme Court stated: “In Becton Dickinson


Phils., Inc. v. National Labor Relations Commission, citing the
leading case, Wiltshire File Co., Inc. v. National Labor
Relations Commission, we explained the nature of redundancy
as an authorized cause for dismissal in the following manner:

'x x x redundancy in an employer’s personnel force


necessarily or even ordinarily refers to duplication of
work. That no other person was holding the same
position that private respondent held prior to the
termination of his services, does not show that his
position had not become redundant. Indeed, in any well-
organized business enterprise, it would be surprising to
10
Edge Apparel, Inc. v. NLRC, et al., G.R. No. 121314, 12 February 1998;
find duplication of work and two (2) or more people doing
the work of one person. We believe that redundancy, for
purposes of the Labor Code, exists where the services of
an employee are in excess of what is reasonably
demanded by the actual requirements of the enterprise.
Succinctly put, a position is redundant where it is
superfluous, and superfluity of a position or positions
may be the outcome of a number of factors, such as
overhiring of workers, decrease in volume of business, or
dropping of a particular product line or service activity
previously manufactured or undertaken by the
enterprise.' ”11

20. While it is true the characterization of an employee’s


services as no longer necessary or sustainable, and therefore,
properly terminable, is an exercise of business judgment on
the part of the employer, and the wisdom or soundness of
such characterization or decision is not subject to
discretionary review, such characterization may be rejected if
the same is found to be in violation of law or is arbitrary or
malicious.12

21. It is the burden of the employer to prove the factual


and legal basis for the dismissal of its employees on the
ground of redundancy. It is not enough for a company to
merely declare that it has become overmanned. It must
produce adequate proof of such redundancy to justify the
dismissal of the affected employees. Evidence must be
presented to substantiate redundancy such as but not limited
to the new staffing pattern, feasibility studies/proposal, on the
viability of the newly created positions, job description and the
approval by the management of the restructuring.13

22. For the implementation of a redundancy program to


be valid, the employer must comply with the following
11
CALTEX (PHILS.), INC. (now CHEVRON PHILIPPINES, INC.) vs. NLRC and Sto. Tomas,
G.R. No. 159641, 15 October 2007.
12
Id.
13
Id.
requisites: (1) written notice served on both the employees and
the Department of Labor and Employment at least one month
prior to the intended date of retrenchment; (2) payment of
separation pay equivalent to at least one month pay or at least
one month pay for every year of service, whichever is higher;
(3) good faith in abolishing the redundant positions; and (4)
fair and reasonable criteria in ascertaining what positions are
to be declared redundant and accordingly abolished. 14

23. The Supreme Court has laid down the principle that
the employer must use fair and reasonable criteria in the
selection of employees who will be dismissed from employment
due to redundancy. Such fair and reasonable criteria may
include the following, but are not limited to: (a) less preferred
status (e.g. temporary employee); (b) efficiency; and (c)
seniority. The presence of these criteria used by the employer
shows good faith on its part and is evidence that the
implementation of redundancy was painstakingly done by the
employer in order to properly justify the termination from the
service of its employees.15

24. Here, the employer, through Mr. Nair and Ms.


Cannon, failed to show that it has employed clear criteria
when it decided who among its employees, who held similar
positions as the Complainant, should be removed from their
posts because of redundancy.

25. In any case, if the termination is based on a fair and


reasonable criteria, it should not have been Complainant who
will be dismissed. Complainant was a major contributor to B.
Braun business from 2005. In fact in 2013, she performed
103% vs. target (data available upon request from B. Braun)
on the other hand, Mr. Roderick Obispo, the product manager
whom Mr. Nair opted to retain has not even hit his annual
target from the time he was hired in 2012;

14
Asian Alcohol Corporation vs. NLRC, et al., G.R. No. 131108, 25 March 1999.
15
Arabit, et al. vs. Jardine Pacific Finance, Inc., G.R. No. 181719, 21 April 2014.
26. The other product manager, Ms. Jocelyn Pahang,
whom Mr. Nair opted to retain, is junior to Complainant’s
position. She is an immediate subordinate of the Complainant.
Worthwhile to note is that prior to the re-organization, Ms.
Pahang was performing the tasks of product associate which is
one level lower than actual position of Complainant. Between
the Complainant and her assistant, the former was the
strategic thinker who made and can make sound decisions for
the product groups.

27. Furthermore, Complainant accepted Ms. Pahang to


be under her tutelage in 2014 instead of hiring a new product
associate for humanitarian reasons. Considering that Ms.
Pahang has not satisfactorily performed well on her job as
junior product manager in CN, she was doomed to lose her
job. Mr. Mondonedo requested Ms. Ramos to accept Ms.
Pahang to do the tasks of a product associate instead of hiring
a new employee. The Complainant, confident of her own
ability to train subordinates, accommodated Mr. Mondonedo’s
request and accepted Ms. Pahang into her tutelage.

28. Moreover, Complainant was able to reverse the poor


performance from the first semester 2014 of the product
groups which she handled for the first time, despite the
supposed learning curve. Even when the challenges and
business realities that beset the product groups that she
handled were global in nature, she managed to reverse the
trend and ended the 4th quarter of 2014 sales performance
with a high mark of 100%. The fact that she was able to
reverse the performance, despite her short stay and the varied
challenges in the new business group, tells of her strategic
capabilities that can cut across different business groups of B.
Braun.

29. Her immediate superior, Mr. Mondonedo, mentioned


in one of their discussions that her performance deserved
commendation and appropriate high marks in the forthcoming
performance appraisal, which sad to say, will no longer
materialize because of her untimely termination.

30. It is also worth citing that there was no


performance appraisal at the time of the termination,
which could have been a good and tangible basis for the
retention criteria.

31. Complainant Ms. Ramos also had the opportunity to


be the main strategist for ITG, the biggest business unit of B.
Braun which comprised more than 50% of the B. Braun
Business.

32. When complainant asked Mr. Mondonedo why he


was not able to defend her despite her capabilities
(enumerated above) which she cited to him one by one, he
replied to her that “sinabi ko yan lahat, Wen.” He cited all the
aforementioned facts during the said meeting but the only
comment of Mr. Nair was- “that is your opinion, not mine”.

33. Considering the fluidity of movement across


Business Units (BUs), as a usual practice in B. Braun, and in
compliance with the company’s “last in-first out” policy they
should have first considered moving the Complainant to
Clinical Nutrition (CN), a subdivision within the same Critical
Care Business Unit, or some other business unit, rather than
terminating her for redundancy.

34. It is worthwhile to point out that Ms. Fely Grace


Fernandez, the current Product Manager of CN, was hired only
in October 2014, thus was still on probationary status at the
time when Ms. Ramos was terminated from her position.
Considering seniority as one of the prescribed fair and
reasonable criteria, as a regular employee, Complainant
deserved priority for continuous employment. Ms. Fernandez
did not have special qualifications that could make her
irreplaceable in her position as product manager for CN. Her
previous experience was related to handling products in
Health Reproduction which had nothing to do with Clinical
Nutrition.

35. Considering further that Complainant has proven


that she was able to adapt to different business units in B.
Braun with entirely different nature of business, Mr. Nair
could have just reassigned Complainant as product manager
of CN.

36. There is actually no redundancy or superfluity. The


fact that Complainant’s position has been rendered
superfluous or redundant is belied by the fact that effective 1
April 2015, Ms. Justine Marie Matias, a fresh graduate from
Ateneo de Manila University was hired as part of the ANSUR
team.16

37. This development further supports Complainant’s


argument that the decision to dismiss Complainant was
tainted with malice and bad faith. Bad faith, under the law,
does not simply connote bad judgment or negligence. It
imports a dishonest purpose or some moral obliquity and
conscious doing of a wrong, a breach of a known duty through
some motive or interest or ill-will that partakes of the nature of
fraud.17

38. Mr. Nair exhibited malice and bad faith in


dismissing Complainant on the concocted notion of
redundancy that did not and does not exist. The malice is even
more apparent when weighed with the past actions of Mr. Nair
against Complainant, as previously discussed in paragraph 15
above.

39. Furthermore, these attempts to dismiss


Complainant were made after Complainant has already
rendered more than ten years or service and is just three and
three/ fourths (3.75) years away from the time she would have
16
Attached hereto as Annex “H” is the e-mail dated 6 April 2015.
17
Aliling v. Feliciano, et. al. , G.R. No. 185829, 25 April 2012, citing Nazareno v. City of
Dumaguete.
to retire at the age of fifty-five (55), as established by B.
Braun's and the common practice in the industry.

Respondents are jointly


and severally liable for
damages.
x----------------------------------------------x

40. The haughty statement of Mr. Nair to Mr.


Mondonedo, “it is your opinion, not mine” supports her claim
that there was an absence “of a fair and just criteria” by which
the selection process on who deserved to be retained rested
on.

41. His impulsive decision of removing the ANSUR


business from the responsibility of Mr. Mondonedo
demonstrates Mr. Nair's abusive and whimsical behavior.
Furthermore, the fact that Mr. Nair authorized the movement
(Attached is the released memo that shows the movement of
assignments and reporting roles as Annex “L”) 18 where the
sales and marketing management team was directed to report
to him directly just so he can carry out his decision to
terminate Complainant is a classic example of how Mr. Nair
can carry out his malicious intentions or “bad faith” despite
the presence of an organizational structure where roles are
defined in a professional corporation such as B. Braun
Medical Supplies. Mr. Nair does not have a care about
Philippine labor laws, probably because he is a foreigner who
thinks that he is sovereign and superior to Filipinos.

42. The fact that Mr. Mondonedo, Complainant's


immediate boss declined to prepare a position paper on the
supposed reorganization and considering the short lead time
from that meeting on 9 January to 14 January 2015 where the
ANSUR managers were individually informed of their
respective roles, one could say with certainty that there was
18
Attached hereto as Annex “I” is the memo which shows the movement of assignments
and reporting roles.
an absence of a fair and reasonable criteria to support the
dismissal. Mr. Nair did not use any criteria at all. Mr. Nair
was hell bent on dismissing Complainant. He did not
ascertain which positions are to be classified as redundant,
and did not actually make a study if there was even a need for
re-organization at all.

43. Even Ms. Cannon, the HR manager has mentioned


in confidence to 2 other people that she did not agree with Mr.
Nair's decision. But because she needed to safeguard her job,
Ms. Cannon had to issue the memo dismissing Complainant,
and which memo made Ms. Cannon a participant in the case.

44. Mr. Mondonedo and Ms. Cannon, two (2) managers,


who can very well testify to the veracity of what has
transpired, are not willing to issue affidavits lest they lose
their well-paying jobs and positions of good influence in the
company.

45. Mr. Nair's acts of constructive dismissal against


Complainant starting in 2013, Complainant's termination on
the ground of redundancy which were not consistent with the
supposed “fair and justifiable criteria”, and the events that
followed, are testaments of the bad faith employed by the
employer, through Mr. Nair, in the termination of
Complainant's services with B. Braun Medical Supplies, Inc.
thus the Respondents can be held jointly and severally liable

Complainant is entitled to
separation pay and actual
and compensatory
damages in the amount of
the pecuniary loss she
suffered due to her illegal
dismissal.
x----------------------------------------------x
46. Under the Labor Code, an illegally dismissed
employee is entitled to either reinstatement, if viable, or
separation pay if reinstatement is no longer viable, and
backwages. The normal consequences of complainant’s illegal
dismissal, then, are reinstatement without loss of seniority
rights, and payment of backwages computed from the time
compensation was withheld up to the date of actual
reinstatement.

47. In this case, reinstatement is no longer viable as an


option. The accepted doctrine is that separation pay may avail
in lieu of reinstatement if reinstatement is no longer practical
or in the best interest of the parties. Separation pay in lieu of
reinstatement may likewise be awarded if the employee
decides not to be reinstated. As the Supreme Court has
consistently held—

“Under the doctrine of strained relations, the


payment of separation pay is considered an
acceptable alternative to reinstatement when the
latter option is no longer desirable or viable. On one
hand, such payment liberates the employee from
what could be a highly oppressive work
environment. On the other hand, it releases the
employer from the grossly unpalatable obligation of
maintaining in its employ a worker it could no
longer trust.”19

“Strained relations must be demonstrated as a fact,


however, to be adequately supported by evidence —
substantial evidence to show that the relationship
between the employer and the employee is indeed
strained as a necessary consequence of the judicial
controversy.”20

19
Aliling v. Feliciano, et. al. , G.R. No. 185829, 25 April 2012.
20
Id.
48. This is what the law provides as a relief to an
illegally dismissed employee, viz:

Art. 279. Security of Tenure. - In cases of


regular employment, the employer shall not
terminate the services of an employee
except for a just cause or when authorized by
this Title. 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 backwages,
inclusive of allowances, and to his other
benefits or their monetary equivalent
computed from the time his compensation was
withheld from him up to the time of his actual
reinstatement.

49. In this case, the patent animosity of the employer,


through Mr. Nair, towards complainant Ramos can be said to
have been the cause of what may be considered as the
arbitrary dismissal of the complainant. Furthermore, she was
dismissed a mere three years before she was due to retire. In
their industry, 55 is the age of retirement, thus it would not be
possible anymore for Complainant to seek similar employment
elsewhere at the age of 52 due to her illegal dismissal from B.
Braun. Thus, the benefits she should have been entitled to
and should have accrued to her for the next three and three
fourth years should be awarded to complainant as an
alternative.

50. Art. 2199 of the Civil Code of the Philippines


provides:

“Art. 2199. Except as provided by law or by stipulations,


one is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or
compensatory damages”.
51. Actual or compensatory damages are those
recoverable because of pecuniary loss in business, trade,
profession, property, profession, job or occupation. 21 This also
includes the value of the loss suffered and profits which were
not obtained or realized.

52. Thus, Complainant is entitled to recover the


following amounts in the concept of actual and compensatory
damages:

50.1 Complainant’s annual income of PHP


22
1,782,975.07 multiplied by 3.75 which is the number of
years she expects to be employed with B. Braun in the
amount of PHP 6,686,156.51

50.2 1. The car previously assigned to the


complainant, a Toyota Innova with Plate number TQG
736, and has an estimated remaining book value of
P455,000 after 2 years and 8 months of usage. As a
benefit for Marketing Managers, the said car will mature
in favor of the complainant after 6 years, prospectively in
June 2018.

50.3 Retirement pay of one (1) month salary per year of


service, computed for fourteen years, or until December
2018, Complainant's supposed retirement year because
employees exceeding 10 years of service are entitled to a
Retirement pay of one (1) month salary per year of
service.

50.4 Complainant’s other benefits as summarized in


Annex “K” for the next three and three-fourths years (3.75)
years, including:

21
Algarra vs. Sandejas, 27 Phil 284
22
Attached hereto as Annex “J” is the Complainant’s Annual Income Tax Returns.
a. Ten years of Service award plaque and B.
Braun watch;

b. Monetized Annual Sick Leave of 15 days and


Vacation Leave of 10 days of PHP429,672.73 (1.13
months/year x 4 years);

c. Christmas and Noche Buena allowance of


P40,000.00 (PHP10,000.00 a year;

d. Annual Travel of PHP480,000.00 (P120,000.00


per year);

e. Annual optical benefit of PHP10,000.00 (P


2,500 per year);

Complainant is entitled to
the grant of moral and
exemplary damages.
x----------------------------------------------x

53. Moral damages are awarded if the following


elements exist in the case: (1) an injury clearly sustained by
the claimant; (2) a culpable act or omission factually
established; (3) a wrongful act or omission by the defendant as
the proximate cause of the injury sustained by the claimant;
and (4) the award of damages predicated on any of the cases
stated Article 2219 of the Civil Code. In addition, the person
claiming moral damages must prove the existence of bad faith
by clear and convincing evidence for the law always presumes
good faith. It is not enough that one merely suffered sleepless
nights, mental anguish, and serious anxiety as the result of
the actuations of the other party. Invariably such action must
be shown to have been wilfully done in bad faith or with ill
motive. Bad faith, under the law, does not simply connote bad
judgment or negligence. It imports a dishonest purpose or
some moral obliquity and conscious doing of a wrong, a
breach of a known duty through some motive or interest or ill
will that partakes of the nature of fraud.23

54. From the discussion above it can clearly be seen


that the grant of moral damages in favor of Complainant is
clearly warranted. The employer, through Mr. Nair, has
employed different schemes and ploys in order to remove
Complainant from B. Braun Medical Supplies, Inc.
unsuccessfully since the year 2013 until it finally succeeded in
illegally terminating her through the notice of redundancy
dated 22 January 2015.

55. The award of moral damages is aimed at a


restoration within the limits of the possible, of the spiritual
and/or psychological status quo ante, and therefore it must be
proportionate to the suffering inflicted. Moral damages include
physical suffering, mental anguish, fright, serious anxiety,
besmirch reputation, wounded feelings, moral shock, social
humiliation and similar injury. Though incapable of
pecuniary computation, moral damages may be recovered if
they are the proximate result of defendant’s wrongful act or
omission.24

56. As culled in the narration of complainant,


Complainant’s illegal dismissal is tainted with malice and
bad faith and this has resulted to her devastation and
continued stress since the year 2013, when employer’s
schemes to remove her from the company started.
Complainant should thus be awarded moral damages in
the amount of Two Million Pesos (P2,000,000.00). And to
serve as an example against the abuse by expatriate
managers of their powers without any regard for
Philippine labor laws and the welfare of Filipino
employees, Respondents should be held liable to pay
23
Aliling v. Feliciano, et. al. , G.R. No. 185829, 25 April 2012, citing Nazareno v. City of
Dumaguete.
24
Philippine Airlines vs. NLRC, G.R. No. 132805, 2 February 1999.
exemplary damages in the amount of Two Million Pesos
(P2,000,000.00) in favor of Complainant.

Complainant is likewise
entitled to Attorney’s Fees
and Legal Interest
x----------------------------------------------x

57. Complainant is also entitled to attorney’s fees in the


amount of ten percent (10%) of her total monetary award,
having been forced to litigate in order to seek redress of his
grievances, pursuant to Article 111 of the Labor Code and
following the Supreme Court’s ruling in Exodus International
Construction Corporation v. Biscocho.25

58. It is settled that in actions for recovery of wages or


where an employee was forced to litigate and, thus, incur
expenses to protect his rights and interest, that the award of
attorney’s fees is legally and morally justifiable.

59. In Producers Bank of the Philippines v. Court of


Appeals26 the Supreme Court also ruled that:

“Attorney’s fees may be awarded when a party is


compelled to litigate or to incur expenses to protect his
interest by reason of an unjustified act of the other
party.”

60. In this case, the award of attorney’s fee is warranted


pursuant to Article 111 of the Labor Code. Complainant
Rowena C. Ramos was forced to litigate and, thus, incurred
expenses to protect her rights and interests. The award of
attorney’s fees is legally and morally justifiable.

25
G.R. No. 166109, 23 February 2011.
26
G.R. No 111584, 17 September 2001.
61. Finally, legal interest shall be imposed on the
monetary awards herein granted at the rate of 6% per annum
from the date of Complainant's termination until fully paid. 27

PRAYER

WHEREFORE, premises considered, it is respectfully


prayed from this Honorable Office that judgment be rendered
in favor of the Complainant and against the Respondents with
the following terms:

1. Finding the Respondents liable for illegally dismissing


the complainant;

2. Holding the Respondents jointly and severally liable to


pay the complainant the following:

a. Complainant’s annual income of PHP 1,782,975.07


times 3.75 the number of years she expects to be
employed with B. Braun in the amount of PHP
6,686,156.51;

b. Retirement pay in the equivalent of one month pay for


every year of service for the period of 14 years, the total
number of years she should have been at service in the
company, in the amount of PHP 1,323,392;

c. The Toyota Innova with Plate number TQG 726 with


estimated remaining book value of PHP 455,100.00, a
vehicle assigned to her which will mature in her favor by
June 2018.

d. Ten years of Service award plaque and B. Braun watch

27
Aliling v. Feliciano, et. al. , G.R. No. 185829, 25 April 2012.
e. Monetized Annual Sick Leave of 15 days and Vacation
Leave of 10 days of PHP429,672.73 (1.13 months/year x
4 years);

f. Christmas and Noche Buena allowance of P40,000.00


(PHP10,000.00 a year;

g. Annual Travel of PHP480,000.00 (P120,000.00 per


year);

h. Annual optical benefit of PHP10,000.00 (P 2,500 per


year);

i. Moral damages of PHP2,000,000.00;

j. Exemplary damages of PHP2,000,000.00; and

k. Attorney’s fees equivalent of ten percent (10%) of all


claims and legal interest on the same from date of
termination until fully paid.

Other reliefs just and equitable under the circumstances


also prayed for.

Pasig City for Quezon City, 14 April 2015.

ABELLERA & CALICA


LAW OFFICES
Counsel for Complainant
Unit 1703, Medical Plaza Ortigas
25 San Miguel Avenue, Ortigas Center
1605 Pasig City, Metro Manila
Telefax: 6312101
Office Mobile: 0915-2854160
Office Email: aculaw@yahoo.com
By:

ZARDI ABELLERA
PTR No. 10806426J - 1/5/15 – Las Piñas City
IBP Lifetime Roll No. 02566 - 1/3/01 - PPLM
Roll of Attorneys No. 38310
MCLE Compliance No. IV–0008279, 10/04/2012
Email: zabellera@yahoo.com

Copy furnished:

B. BRAUN MEDICAL SUPPLIES,


INC., JULIAN GERARD NAIR AND
MA. CECILIA VICTORIA H.
CANNON
Respondents
15/F Sun Life Centre, 5 th Avenue
corner Rizal Drive, Bonifacio Global
City, 1634 Taguig City
VERIFICATION

I, ROWENA C. RAMOS, Filipino, of legal age, with


address at Lot 14, Block 6 Palmera Homes IV, Taytay, Rizal,
after having been sworn in accordance with law, respectfully
state:

1. I am the Complainant in this case;

2. I have caused the preparation of this Position Paper,


the contents of which I have read and certify to be true and
correct based on my personal knowledge and/or on authentic
records.

ROWENA C. RAMOS
Affiant

SUBSCRIBED AND SWORN to before me this 14 th day of


April in the National Labor Relations Commission, Quezon
City.

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