REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch IV
2/F Hectan Bldg., Brgy. Halang cor. Chipeco Avenue
Calamba City

JUAN DELA CRUZ., ET. AL,

Complainant,

-- versus -- NLRC CASE NO. RAB-IV-______________

AAA HOTEL,
AND/OR,
Respondent.
X-----------------------------------------------X

POSITION PAPER

COMPLAINANTS, by undersigned counsel, unto this Honorable Commission,

most respectfully state that:

PARTIES

1. Complainant ______________ is of legal age, married, Filipino, and residing

at ___________________ where he may be served with notices, orders and other legal

processes of the Honorable Commission. Complainant ______________ is of legal age,

single, Filipino, and residing at ______________ where he may be served with notices,

orders and other legal processes of the Honorable Commission. Complainant

______________ is of legal age, single, Filipino, and residing at ______________, where

he may be served with notices, orders and other legal processes of the Honorable

Commission.

2. Respondent hotel is a corporation duly organized under Philippine laws with

business address at ______________, who may be served with summons, notices, orders,

and other legal processes of this Honorable Commission at respondent company’s office

address.

STATEMENT OF FACTS AND THE CASE

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 3. Complainant ______________ started work in respondent hotel in 2007.

His position is Housekeeping Utility and his latest salary is P7,666.93 per month.

Complainant ______________ started work in respondent hotel in 2006. His position is

Senior Attendant with a salary of P8,500.00 per month. Complainant ______________

started work in respondent hotel in 2007. His position is Room Attendant and his latest

salary is P7,666.93 per month. Copies of their latest payslips are hereto attached as

Annexes “A” to “C” and made integral parts hereof.

4. As members of the housekeeping department of respondent hotel, their

jobs include maintenance of the cleanliness of the different rooms of the hotel. They were

also tasked with the checking of the different appliances and fixtures of the hotel room

when a guest checks out. This includes checking the condition of the television set, the

air-conditioning unit and other appliances in the room.

5. Through all the years they were employees of respondent, they have

performed their work with utmost dedication and loyalty, even rendering extra work for

respondent hotel. They have never been involved in any anomaly or been charged of any

infraction before. The only blemish on complainant ______________ record was when

he was given a verbal warning. He received it when it was alleged that he was watching

television while cleaning a room.

6. They have been holding a clean record from day one of their employment.

7. At around 3 o’clock in the afternoon, on August 27, 2010, they were inside

one of the rooms of the hotel. As they were about to check and clean it, one of the guests

gave them food.

8. As they were cleaning and checking the room, respondent hotel manager

suddenly entered the room. He proceeded to check on what the complainants were doing.

When he opened the microwave, he saw that there was food inside of it.

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 9. He then told the complainants to report to his office to explain on what he

just saw. The complainants did so.

10. On the same date, a memorandum was issued by the respondent hotel. In

the said memorandum, they were again asked to explain about the incident. It was signed

by the Hotel Manager but not by the HR Assistant Copies of the August 27, 2010

Memorandum is hereto attached as Annexes “D” to “E” and made integral parts hereof.

11. Complainants complied and submitted their explanation letters. In it,

______________ and ______________ admitted their fault and asked for a second

chance from the respondent.

12. On August 31, 2010, they received a memorandum from respondent

terminating their employment. Copies of the August 31, 2010 Termination of Service

memorandum is hereto attached as Annexes “F” to “H” and made integral parts hereof.

13. Throughout the entire time that they worked for respondent hotel, they have

not been paid their overtime pay. They were only given the option to offset any undertime

with the number of hours rendered during overtime.. However, there are times when they

could not avail of such arrangement.

14. Likewise, they have not yet received their 13th month pay.

15. Because of such, complainants filed a case for illegal dismissal against

respondent company.

16. The Honorable Labor Arbiter attempted to persuade the parties to enter

into an amicable settlement during the preliminary conference but to no avail. Hence, the

filing of this Position Paper.

ISSUES

WHETHER OR NOT COMPLAINANTS WERE ILLEGALLY

DISMISSED FROM WORK

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 ARGUMENTS

I. Complainants are regular employees.

They enjoy security of tenure. They could not
be dismissed without just cause.

18. Complainants’ several years of dedicated service should be taken into

account. They are regular employees. Being regular employees, they are entitled to

security of tenure and they cannot be terminated except for causes provided by law.

19. Due to its far-reaching implications, our Labor Code decrees that an

employee cannot be dismissed, except for the most serious causes.

20. The dismissal of an employee must be made within the parameters of law

and pursuant to the tenets of equity and fair play. Truly, the employer’s power to

discipline its workers may not be exercised in such an arbitrary manner as to erode the

constitutional guarantee of security of tenure.1

21. Under Article 282 of the Labor Code, an employer may terminate an

employment for any of the following causes:

“(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
representative; and

(e) Other causes analogous to the foregoing.”

22. In the instant case, complainant’s dismissal was without legal ground.

1
Hantex Trading Co., Inc. v. Court of Appeals, G.R. No. 148241, September 27, 2002
4
 The basis of respondent in terminating complainants are the alleged violation of

OSDM 1.09 (Operating, using, meddling, with or impeding the proper use of machines,

tools, equipments, vehicles, facilities or premises to which employee has not been

assigned or is not allowed using) and OSDM 1.10 (Willful wastage of company

supplies), both of which are company policies.

In the case of Procter and Gamble vs Bondesto2 the Court has this to say,

"Misconduct" has been defined as "the transgression

of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in
character, and implies wrongful intent and not mere
error in judgment."22 On the other hand, "willful
disobedience" envisages the concurrence of at least
two (2) requisites: the employee’s assailed conduct
has been willful or intentional, the willfulness being
characterized by a "wrongful and perverse attitude;"
and the order violated must have been reasonable,
lawful, made known to the employee and must pertain
to the duties which he had been engaged to discharge.

Assuming for the sake of argument, that complainants were liable for the act

imputed against them, they could not be penalized by dismissal from work. The law

speaks of serious misconduct, and what they did cannot be categorized as such.

Complainants’ act was not characterized as a wrongful and perverse attitude. At

worst, it would be a manifestation of a bad judgment on their part. Interestingly,

complainants were never given any copy before of the company policies (OSDM 1.09

and OSDM 1.10) which they allegedly violated. They were at a loss why a single act of

indiscretion would cost their employment.

II. Complainants’ dismissal is too

harsh. There is no reasonable
proportionality between the alleged
offense and the dismissal imposed

23. As stated, the penalty of dismissal imposed upon them was too excessive. In

Gold City vs. NLRC and Bacalso,3 the Court held:

2
G.R. No. 139847, March 5, 2004
3
G.R. No. 86000, September 21, 1990.
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 There must be reasonable proportionality
between, on the one hand, the wilful disobedience by
the employee and, on the other hand, the penalty
imposed therefor. Examination of the circumstances
surrounding private respondent's assault upon his co-
employee shows that no serious or substantial danger
had been posed by that fistfight to the well-being of his
other co-employees or of the general public doing
business with petitioner employer; and neither did such
behavior threaten substantial prejudice for the business
of his employer.

In the case above, the dismissed employee was reinstated even though he was

involved in a fisfight inside the company premises. The Court found that the employee’s

unruly temper did not become an effective threat to his co-workers or the safety of the

customers dealing with his employer, or to the goodwill of his employer. The Court also

took into consideration he had been quite candid in admitting that he had been at fault as

soon as the investigation began.

In the instant case, what the complainants did had no serious adverse effect on the

business of respondent or to its hotel guests.

Dismissal, without doubt, is the ultimate penalty that can be meted to an

employee. Thus, where a penalty less punitive would suffice, whatever missteps may be

committed by labor ought not to be visited with a consequence so severe.4

25. In the instant case, respondents should have taken into consideration the

years that complainants have spent in the company. Respondents should not have

overlooked this so easily.

26. Further, assuming that the prior incident involving Masilang should have

been taken into account, the penalty imposed on them for the pending incident would still

be too harsh. There was no connection between that incident and the incident subject o

this case. As they were, both of these incidents are minor infractions. None would merit

the penalty of dismissal.

4
Zagala and Angeles vs. Mikado Phils., Kono and Ogura, G.R. No. 160863, September 27, 2006.
6
III. Complainants are entitled to monetary
claims. The manner by which complainant
was dismissed disclosed that they are entitled
to the payment of full backwages separation
pay, moral and exemplary damages and
attorney’s fees.

27. Since his dismissal is illegal, complainant is entitled to the payment of full

backwages starting from the day he was actually dismissed from work until his

reinstatement to his previous position without loss of seniority rights. This is in

conformity with Article 279 of the Labor Code. In accordance with the said provision, an

illegally dismissed employee is entitled to his full backwages from the time his

compensation was withheld from him (which, as a rule, is from the time of his illegal

dismissal) up to the time of his actual reinstatement.

28. Normally, reinstatement would be proper when the dismissal of an

employee is found to be illegal. However, there are instances when reinstatement is not

practicable. In the case of Globe Mackay vs. NLRC5 the Court said,

"An employee who is unjustly dismissed from work

shall be entitled to reinstatement. . . . and to his full
backwages. . . If in the wisdom of the Court, there may
be a ground or grounds for non-application of the
above-cited provision, this should be by way of
exception, such as when the reinstatement may be
inadmissible due to ensuing strained relations between
the employer and the employee.

Prior to the termination of the complainants, there have already been

instances when respondent hotel manager gave them inordinate amount of attention. They

were always being treated disproportionately by him.

29. Complainants have not yet received any 13th month pay from respondent.

This being the case he is entitled to receive such 13th month pay computed due to them

when they terminated from work.

5
G.R. No. 82511 March 3, 1992

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 30. The manner that he was terminated by respondent, especially that he was

dismissed from work without him knowing fully why he was terminated, caused extreme

suffering to the complainant. He suffered moral shock, social humiliation, serious

anxiety, and sleepless nights. For this, complainant is entitled to moral damages

amounting to P100,000.00

31. For correction and to serve as example for the public good, respondents

should be made to pay the amount of P100.000.00 by way of exemplary damages.

RELIEFS

PREMISES CONSIDERED, it is respectfully prayed of this Honorable

Commission that judgment be rendered declaring complainant’s dismissal from work as

illegal and directing respondents to pay complainant, jointly and severally, with the

following amounts:

1. Separation pay equivalent to one month’s salary for each year of service;

2. Full backwages computed from the time their salary and all allowances

were withheld from them until actual reinstatement;

3. Moral damages in the amount of P100,000.00;

4. Exemplary damages in the amount of P100,000.00;

5. Attorney’s fee equivalent to ten percentum (10%) of the monetary awards

due complainant; and

6. The cost of suit.

Other reliefs just and equitable under the premises are likewise prayed for.

January 31, 2011, ___________________________ City for Calamba City.

_________________________
Counsel for Complainant
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
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 ___________________________

Copy furnished:

AAA Hotel
Pallocan West, Batangas City

VERIFICATION AND NON-FORUM SHOPPING

We, ___________________________, ___________________________ and

all of legal age, Filipinos, after having been duly sworn to, in
___________________________
accordance with law, hereby depose and state that:

We are the complainants in the above-captioned Position Paper;

We have caused the preparation of the foregoing application and have read the
contents thereof and affirm that the allegations thereof are true and correct as to my
personal knowledge and the authentic documents at hand.

We hereby certify that we have not commenced any action/proceeding involving

the same matters/issues taken up in the present petition with the Supreme Court/Court of
Appeals/Regional Trial Court or any other tribunal or agency, and if we should learn later
on that a similar action or proceeding has been filed or is so pending, we undertake to
report the fact within five (5) days thereof to this Court.

IN WITNESS WHEREOF, I have hereunto set my hand this January 31, 2011 at
Batangas City.

___________________________ ___________________________
Affiant Affiant
SSS No. ___________________________ SSS No._____________________

___________________________
Affiant
SSS No._____________________

SUBSCRIBED AND SWORN TO before me, affiants personally known to me,

exhibit their SSS Nos. ____________, ____________ and ____________ issued Social
Security Commission

Doc. No.
Page No.
Book No.
Series of 2011.