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Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Sub-Regional Arbitration Branch No. I
Dagupan City
MR. X,
Complainant,

NLRC Case No. Sub-RAB 1 (OFW) 1234-567890

-versusCOMPANY Y AND COMPANY Z,

Respondents
x----------------------------x

POSITION PAPER
FOR THE COMPLAINANT
COMPLAINANT, by himself, respectfully submits this position paper to the
Honorable Arbitration Court:

PREFATORY STATEMENT
Workers who are dismissed without just and authorized causes, and without
being given sufficient opportunity to explain their side, can in any manner be considered
illegally dismissed.
Article 279 of the Labor Code of the Philippines expressly provides that 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.
Social Justice is neither communism, nor despotism, nor atomism, nor anarchy,
but the humanization of laws and the equalization of social and economic forces by the
State, so that justice, in its rational and objectively secular conception may at least be
approximated. (Calalang v. Williams, 70 Phil 726)
The State is bound under the Constitution to afford full protection to labor. But
when conflicting interests between labor and capital are to be weighed on the scale of
social justice, the heavier influence of the latter should be counterbalanced with

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compassion and sympathy the law accords the less-privileged workingmen. This is only
fair if the worker is given the opportunity and the right to assert and defend his cause,
not as a subordinate, but as a part of the management with which he can negotiate on
even plane.

PARTIES
COMPLAINANT MR. X (herein after referred to as the COMPLAINANT) is
Filipino, of legal age, and is currently a resident of Dagupan City, Pangasinan where he
may be served with summons, orders, and other quasi-judicial processes.
RESPONDENT COMPANY Z is a foreign company based in Saudi, and
RESPONDENT COMPANY Y is its local agency in the Philippines.

STATEMENT OF THE NATURE OF THE CASE

This is a case for illegal dismissal and for non-payment of salaries filed by the
complainant against the respondents.

STATEMENT OF FACTS
Sometime on December 2014, complainant went to Company Y and applied for
the position Welding Supervisor in Company Z.
During the interview, complainant presented his resume. Included therein were
skills, which made him qualify for the position that he is applying for. Complainant
claimed to have attended several training programs.
Complainant was hired on 1 January 2015 by Company Y to work at Company Z
in Saudi, however, since he was not able to show certifications of his attendances in the
training programs specified in his resume, he was given the lowest position with a term
of employment contract of one (1) year.
Sometime on the concluding days of February 2015, complainant got sick and
sought for a one (1) week leave. On 1 March 2015, complainant was asked to go to the
Human Resource and Development Office, and the latter terminated the employment
contract of the former on that same day. After the complainants dismissal, the
respondents necessitated the former to return to the Philippines.

ISSUES

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The issues submitted to the Honorable Labor Arbiter for resolution are:
1. Whether or not the complainant was illegally dismissed from his employment.
2. Whether or not the complainant is entitled to his monetary claims.

DISCUSSION/ARGUMENTS
First Issue: On Illegal Dismissal
THE COMPLAINANT WAS DISMISSED WITHOUT ANY JUST OR AUTHORIZED
CAUSE AND WITHOUT OBSERVING DUE PROCESS THE RESPONDENTS ARE
LIABLE FOR ILLEGAL DISMISSAL
An employer may terminate an employment for just cause as provided by Article
282 of the Labor Code to wit:
Art. 282. Termination by employer. 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 representatives; and
e. Other causes analogous to the foregoing.

Employment may likewise be terminated at the instance of the employer for any
of the authorized cause provided under Articles 283 and 284 of the Labor Code, to wit:
Art. 283. Closure of establishment and reduction of personnel. The employer may also terminate the
employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent
losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the
purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of
Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the
installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay
equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is
higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment
or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one
(1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at
least six (6) months shall be considered one (1) whole year.
Art. 284. Disease as ground for termination. An employer may terminate the services of an employee who has
been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial
to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at
least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction
of at least six (6) months being considered as one (1) whole year.

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The fundamental guarantees of security of tenure and due process dictate that
no worker shall be dismissed except for just and authorized cause provided by law and
after due process and hearing.1
In the instant case, there is no showing that the complainant was dismissed from his
employment from the respondents due to any of the just or authorized causes provided
under the labor code.
The complainants dismissal for his employment having been made without just
or authorized cause leads to the inevitable conclusion that the complainant was indeed
illegally dismissed.
The respondents likewise failed to observe due process in dismissing the
complainant by its failure to serve any written notice of termination upon the latter.
Irrespective of whether termination is for a just cause or an authorized cause, the
requirements of due process shall not be dispensed with as provided under Section
2(d), Rule I, Book VI of the Implementing Rules of the Labor Code which reads:
(d) In all cases of termination of employment, the following standards of due process shall be substantially
observed:
For termination of employment based on just causes as defined in Article 282 of the Labor Code:
(i) A written notice served on the employee specifying the ground or grounds for termination, and giving
said employee reasonable opportunity within which to explain his side.
(ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so
desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against
him.
(iii) A 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.
For termination of employment as defined in Article 283 of the Labor Code, the requirement of due
process shall be deemed complied with upon service of a written notice to the employee and the appropriate
Regional Office of the Department of Labor and Employment at least thirty days before effectivity of the
termination, specifying the ground(s) for termination.
If the termination is brought about by the completion of a contract or phase thereof, or by failure of an
employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a
written notice is served the employee within a reasonable time from the effective date of termination.

In the case of Skippers Pacific, Inc. v. Mira2, the Supreme Court held that:
Not only must the reasons for dismissing an employee be substantiated, the manner of his dismissal must be
in accordance with governing rules and regulations. Otherwise, the termination itself would be grossly
defective, and illegal. This means that the requirements of due process must be observed. The employer is
required to furnish the concerned employee with two written notices before his dismissal: (1) the notice which
apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the
subsequent notice of the employers decision to dismiss him. This procedure is mandatory; otherwise the
order of dismissal is void.

1 Chiang Kai Shek College v. Court of Appeals, GR No. 152988, 24 August 2004
2 GR No. 144314, 21 November 2002

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Likewise, in the case of Perez v. Philippine Telegraph and Telephone

Company3, it was correctly held that:
Respondents illegal act of dismissing petitioners was aggravated by their failure to observe due process. To
meet the requirements of due process in the dismissal of an employee, an employer must furnish the worker
with two written notices: (1) a written notice specifying the grounds for termination and giving to said
employee a reasonable opportunity to explain his side and (2) another written notice indicating that, upon due
consideration of all circumstances, grounds have been established to justify the employers decision to dismiss
the employee.

It bears stressing that in the instant case, no written notice regarding the
termination of his employment was ever served upon the complainant. First, there was
no notice given by the respondents apprising him of the particular acts or omissions for
which dismissal is sought. Second, neither was there any written notice served upon the
complainant of the employers decision to dismiss him.
Furthermore, it was held in the case of Philippine National Bank v. Cabansag 4
that:
In any event, we recall the following policy pronouncement of the Court in Royal Crown Internationale v. NLRC:
x x x Whether employed locally or overseas, all Filipino workers enjoy the protective mantle of Philippine
labor and social legislation, contract stipulations to the contrary notwithstanding. This pronouncement is in
keeping with the basic public policy of the State to afford protection to labor, promote full employment,
ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers
and employers. For the State assures the basic rights of all workers to self-organization, collective bargaining,
security of tenure, and just and humane conditions of work [Article 3 of the Labor Code of the Philippines;
See also Section 18, Article II and Section 3, Article XIII, 1987 Constitution]. This ruling is likewise rendered
imperative by Article 17 of the Civil Code which states that laws which have for their object public order,
public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by
determination or conventions agreed upon in a foreign country.
xxxx xxxx xxxx
Truly, the contracting parties may establish such stipulations, clauses, terms and conditions as they
want, and their agreement would have the force of law between them. However, petitioner overlooks the
qualification that those terms and conditions agreed upon must not be contrary to law, morals, customs,
public policy or public order. As explained earlier, the employment Contract between petitioner and respondent is
governed by Philippine labor laws. Hence, the stipulations, clauses, and terms and conditions of the Contract must
not contravene our labor law provisions.
Moreover, a contract of employment is imbued with public interest. The Court has time and time
again reminded parties that they "are not at liberty to insulate themselves and their relationships from the
impact of labor laws and regulations by simply contracting with each other." Also, while a contract is the law
between the parties, the provisions of positive law that regulate such contracts are deemed included and shall
limit and govern the relations between the parties.

The importance of observing the requirements of due process in terminating

employees regardless of whether an employee is employed within the Philippines or
abroad is given further emphasis in the case of PCL SHIPPING PHILIPPINES, INC. v.
NLRC5, where it was held that:

3 GR No. 152048, 07 April 2009

4 GR No. 157010, 21 June 2005
5 GR No. 153031, 14 December 2006

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Petitioners admit that they did not inform private respondent in writing of the charges against him and that
they failed to conduct a formal investigation to give him opportunity to air his side. However, petitioners contend
that the twin requirements of notice and hearing applies strictly only when the employment is within the Philippines
and that these need not be strictly observed in cases of international maritime or overseas employment.
The Court does not agree. The provisions of the Constitution as well as the Labor Code which afford
protection to labor apply to Filipino employees whether working within the Philippines or abroad. Moreover,
the principle of lex loci contractus (the law of the place where the contract is made) governs in this
jurisdiction. In the present case, it is not disputed that the Contract of Employment entered into by and
between petitioners and private respondent was executed here in the Philippines with the approval of the
Philippine Overseas Employment Administration (POEA). Hence, the Labor Code together with its
implementing rules and regulations and other laws affecting labor apply in this case. Accordingly, as to the
requirement of notice and hearing in the case of a seafarer, the Court has already ruled in a number of cases that
before a seaman can be dismissed and discharged from the vessel, it is required that he be given a written notice
regarding the charges against him and that he be afforded a formal investigation where he could defend himself
personally or through a representative. Hence, the employer should strictly comply with the twin requirements
of notice and hearing without regard to the nature and situs of employment or the nationality of the employer.
Petitioners failed to comply with these twin requirements.

Hence, based on the foregoing discussions, no other conclusion can be reached

other than that the COMPLAINANT was illegally dismissed for lack of any just or
authorized cause and for not being accorded his right to due process.

Second Issue: On Monetary Claims

HAVING BEEN ILLEGALLY DISMISSED, COMPLAINANT IS ENTITLED TO HIS
SALARIES FOR THE UNEXPIRED PORTION OF HIS CONTRACT
At the outset, paragraph 5 of Section 10 of R.A. 8042 or the Migrant Workers
and Overseas Filipinos Act of 1995 as amended, expressly provides that:
xxx xxx
"In case of termination of overseas employment without just, valid or authorized cause as defined by
law or contract, or any unauthorized deductions from the migrant worker's salary, the worker shall be
entitled to the full reimbursement if his placement fee and the deductions made with interest at twelve percent
(12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3)
months for every year of the unexpired term, whichever is less. xxx

However, considering that the same provision has already been declared
unconstitutional by the Supreme Court in the recent case of Serrano vs. Gallant
Maritime Services, Inc.6, the complainant is now entitled to his salaries for the
unexpired portion of his contract. The dispositive portion of the afore-cited case reads:
WHEREFORE, the Court GRANTS the Petition. The subject clause "or for three months for every year of
the unexpired term, whichever is less" in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED
UNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1, 2005 Resolution of the Court of Appeals
are MODIFIED to the effect that petitioner is AWARDED his salaries for the entire unexpired portion of his
employment contract consisting of nine months and 23 days computed at the rate of US $1,400.00 per month.

6 GR No. 167614, 24 March 2009

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Based on the abovementioned ruling, the complainant in the instant case is

entitled to his salaries for the unexpired portion of his contract which is nine (9) months
and thirty (30) days or from March 2, 2015 to December 31, 2015 computed at the rate
of US$_____ per month.
With respect to who shall be liable for the payment of such salaries, Section 10 of
R.A. 8042 likewise provides, to wit:
"SEC. 10. Money Claims.
xxx
"The liability of the principal/employer and the recruitment/placement agency for any and all claims under
this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment
and shall be a condition precedent for its approval. The performance bond to de filed by the recruitment/placement
agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the
workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as
the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid
claims and damages.xxx

The joint and solidary liability imposed by law against recruitment agencies and
foreign employers is meant to assure the aggrieved worker of immediate and sufficient
payment of what is due him. (Asian International Manpower Services, Inc. (AIMS) v.
Court of Appeals7 ) Consequently, respondent Company Y and respondent Company Z
are joint and severally liable to the complainant for the money claims to which the latter
is entitled.
Article 1306 of the Civil Code is explicit in providing that:
Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they
may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.

The same law also provides that:

Art. 1158. Obligations arising from contracts have the force of law between the contracting parties and
should be complied with in good faith.

Applying these principles in the instant case, the respondents should be held
liable to pay the complainant all indemnities relative to the violation(s) in the sections of
the employment contract.

PRAYER
WHEREFORE, premises considered, complainant respectfully prays that
judgment be rendered by the Honorable Labor Arbiter ordering the respondents to:
7 GR No. 169652, 09 October 2006

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1. Reinstate the complainant

2. Pay the complainant his salaries for the unexpired portion of his contract which
is nine (9) months and thirty (30) days or from March 2, 2015 to December 31, 2015
computed at the rate of US$______ per month;
3. Pay the complainant US$______ or its peso equivalent as indemnity in lieu of
to the violation(s) in the sections of the employment contract;
Complainant further prays for such other reliefs as may be just and equitable
under the premises.
01 June 2015. Dagupan City.

Mr. X
Complainant