REPUBLIC OF THE PHILIPPINES DEPARTMENT OF LABOR AND EMPLOYMENT NATIONAL LABOR RELATIONS:;GOMMISSION. REGIONAL ARBITRATION BRANCHNO: IVs et | CALAMBA CITY = MARY ROSE O. ALMARINES, Complainant, ( - versus - NLRC Case No. RAB-IV11-0715116-L GLOBAL HEAVY EQUIPMENT AND CONSTRUCTION CORPORATION, ARMANDO T. DIAZ, Respondents. nk POS!TION PAPER FOR THE COMPLAINANT The Undersigned COMPLAINANT most respectfully states — that: 1 PREFATORY STATEMENT For all its worth, though oft-orgotten and plainly disregarded, complainant quotes the following pronouncement of the High Court: “One must keep in mind that a worker’s employment is property in the constitutional sense, and he cannot be deprived thereof without due process and unless it was commensurate to his acts and degree of moral depravity.” " PARTIES The Undersigned Complainant MARY ROSE O. ALMARINES (Complainant for short) is of legal age, Filipino, and resides at 215 Blumentritt St., Majayjay, Laguna where she may be served with notices and other legal processes of this Honorable Cffice. “Coca-Cola Bottlers, Phils., Inc. v Kapisanan ng Malayang Mangazawa sa Coca-Cola-FFW, G.R. No, 148205 (28 February 2005)Respondent GLOBAL HEAVY EQUIPMENT AND CONSTRUCTION CORPORATION (respondent Global) is a corporation with office address at 169 Chico St., Xavierville Royale Condominium, Xavierville Avenue, Brgy. Loyola Heights, Quezon City and/or Brgy. Piit, Majayjay, Laguna where it may be served with notices and other legal processes of this Honorable Office. Respondent MAJAYJAY HYDROPOWER COMPANY, INC. (respondent MHCI) is a corporation with office address at Brgy. Piit, Majayjay, Laguna where it may be served with notices and other legal processes of this Honorable Office. Respondent Global and MHC! are hereinafter collectively referred to as respondent companies. Respondent Armando L. Diaz (respondent Diaz for short) is a Filipino citizen, of legal age, with business address at Brgy. Piit, Majayjay, Laguna where he may be served with notices and other legal processes of this Honorable Office, and is impleaded in his official capacity as the authorized managing officer of respondent cornpanies. NATURE OF THE CASE This is a complaint for actual illegal dismissal, payment of overtime pay and night shift differential, 13 month pay, payment of appropriate separation pay and full backwages, actual, moral and exemplary damages for the termination of complainant's employment by the complainant who was illegally dismissed by respondents. Vv STATEMENT OF THE FACTS AND CASE On 18 August 2016, the complainant was hired as a timekeeper by respondent companies in their Hydropower Project (Project) located in Majayjay, Laguna (Majayjay). She was in-charge in the monitoring of the attendance as well as in the preparation of payroll of respondents’ workers. The nature of her job requires her to be at the company premises before the construction workers time in for a day’s work until all the said workers time out of work. Copies of the complainant’s company-issued ID and payslips for 16-31 August 2016, 115 September 2016 and 16-30 September 2016 are hereto attached as Annexes “A,” and 4B,” “Ba,” “B-2,” respectively.The complainant was likewise tasked by the administrative staff of respondent companies Irene Solis (Solis for short) to prepare the payroll for the employees of respondent companies. Solis showed the complainant the payroll for the month of July 2016 to serve as a format for the preparation of the payroll for the ensuing month. And that was the first time that the complainant was able to have observed and discovered some irregularities and illegalities within the respondent companies as there are several known public officials in Majayjay who were in the payroll of respondent companies but whom she knew are not employees of respondent companies. In the late afternoon of 6 October 2016, the complainant noticed a dark brown Toyota innova entered the premises of the company at Brgy. Pit, Majayjay. According to an employee she inquired from, the vehicle has been frequenting the premises of the company and its driver Arcadio Sobrevinas aka AL have been for several times, seen filling the car up with fuel from the tanker owned by respondent companies. The complainant later learned that the vehicle is actually and regularly being used and driven by a certain Mr. Amel Rosas, the Municipal Planning and Development Coordinator (MPDC Rosas) of the Municipality of Majayjay, as shown in the Sinumpaang Salaysay ni Atilano C. Ordofiez hereto attached as Annex “C.” The complainant knew MPDC Rosas because she worked in the Municipality of Majayjay and the name of MPDC Rosas is one of the public officials whom complainant had recognized as listed in the payroll of respondent companies. On account of complainant’s discovery that the said Toyota Innova Car is filling up gasoline in the gasoline depot of the respondent companies and out of her pure concern to protect the interest of the company, on 10 October 2016, the complainant conducted a discreet investigation by asking a co-employee to borrow the logbook from the security guard on-duty so she could check if there was any data relative to the entry of the said vehicle of MPDC Rosas. After the security guard gave to complainant the logbook, the complainant took a picture of the 6 October 2016 entries in the said logbook and then thereafter she immediately returned the logbook to the guard on-duty. A perusal of the picture of said logbook taken by complainant would show that at around 4:15 in the afternoon, a Toyota Innova bearing the plate number AAD 4607, driven by AL entered the company premises, the same leaving several minutes thereafter or at around 4:30 pm. Aprinted copy of the said photograph is hereto attached and marked as Annex “D.” The said discreet investigation conducted by complainant reached the higher management of respondent companies and thus on 13 October 2016, the complainant received a copy of the Office Memorandum No. 001-17/Notice to Explain requiring her to explain within seventy-two (72) hours from receipt of the said memorandum/notice to explain why she should not be held administratively liable “for the removal of the Personnel/Guest Logbook at the security outpost at the offices of Global/MHCI.” A copy of the said Office Memorandum is hereto attached and marked as Annex “E.” On the following day or on 14 October 2016, complainant submitted her reply to the said memorandum/notice to explain where she explained in writing that in causing the temporary removal of the logbook from the outpost, she has nothing but honest intentions to protect the interest of the company. That as a matter of fact, she was doing her own investigation of the irregularities that she discovered before finally reporting the same to the company’s bosses. A copy of the complainant's letter-reply is hereto attached and marked as Annex “F.” At around 4 o'clock in the afternoon on 14 October 2016, the complainant was summoned at the respondent companies’ conference room by the company’s authorized managing officer Mr. Armando L. Diaz (respondent Diaz). The complainant was verbally asked to explain her involvement in the temporary removal of the said Personnel/Guest Logbook. The complainant reiterated the same explanation she proffered in her letter-reply to the memorandum/notice to explain. When respondent Diaz was not satisfied with her explanation, Diaz hurled invectives at the complainant and other employees he summoned. Three (3) days after the receipt of the complainant's letter-reply or on 17 October 2016, the complainant received a copy of Office Memorandum No. 001-17-A informing her of the termination of her employment for alleged violation of “Section 11 of Article Ill of GHECC Code of Conduct and Article 282 of the Labor Code.” A copy of the said Notice of Termination is hereto attached and marked as Annex “G.” On 3 November 2016, the complainant filed the instant complaint and the same was scheduled for mediation/conciliation conference on 16 November 2016 at 10:00 am before the Labor Arbitration Associate Albert G. Cayabyab. Both parties attended the said mediation conference but the same did not result to any settlement acceptable to both. Respondent Diaz or any authorized representative from the hereinrespondents did not show up during the second mediation conference scheduled on 23 November 2016. The complainant hereby includes in her instant complaint the complaint for underpayment of wage and non-payment of night differential pay as she discovered after the filing of the complaint that her wage is below minimum wage and she is entitled to night differential pay. On the same day, the undersigned complainant brought the instant complaint before the National Labor Relations Commission, Regional Arbitration Branch No. IV, Calamba City, Laguna where the same was raffled to the Honorable Labor Arbiter Melchisedek A. Guan. The said complaint was scheduled for mediation/conciliation conference on 5 January 2017. The parties failed to arrive at settlement of the case and so the Honorable Labor Arbiter ordered the submission of the parties’ respective Position Paper on or before 19 January 2017. Before the Honorable Labor Arbiter, the complainant asked for an extension period of ten (10) days from 19 January 2017 within which to file her position paper. The Honorable Labor Arbiter granted the said extension and set the submission date on 26 January 2017. Hence, the instant position paper for the complainant. v ISSUES A Whether or not the complainant was illegally dismissed from her employment and hence entitled to payment of backwages plus allowances and other benefits. B. Whether or not complainant is entitled to an appropriate separation pay for the termination of her employment. a Whether or not complainant is entitled to payment of moral and exemplary damages and attorney's fees.vi SUBMISSION The complainant was illegally dismissed from her employment and she is thus entitled to payment of backwages plus allowances and other benefits, salaries/wages, separation pay, moral and exemplary damages and attorney's fees. Vil DISCUSSION A THE COMPLAINANT WAS ILLEGALLY DISMISSED FROM HER EMPLOYMENT AND THUS THE SHE IS ENTITLED TO PAYMENT OF BACKWAGES PLUS ALLOWANCES AND OTHER BENEFITS. THE COMPLAINANT IS ENTITLED TO PAYMENT OF SEPARATION PAY FOR THE TERMINATION OF HER EMPLOYMENT. ca THE COMPLAINANT IS ENTITLED TO PAYMENT OF MORAL AND EXEMPLARY DAMAGES AND ATTORNEY’S FEE. Being closely related, the issues raised herein will be discussed altogether. The termination of the employment of the complainant was made in violation of the five (5) days notice rule. ‘As mentioned above, the complainant was given a period of only seventy two (72) hours from receipt of the Notice to Explain which she received on October 13, 2016. On account of the very short notice given to her, complainant hurriedly filed her answer/explanation on the following day, October 14, 2016. Four (4) days from receipt of said Noticeto Explain, the complainant received the Notice of Termination of her employment. This process of the termination of the employment of the complainant is obviously contrary to the required five (5) days notice rule on the termination of employment. It has been held by the Supreme Court that employees must be given the opportunity to submit their written explanation within a reasonable period. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint.’ On this score alone, complainant respectfully submits that respondent companies are liable for the illegal termination of her employment. Complainant was a probationary employee of the respondent companies and thus —_—her employment with respondent companies cannot be terminated without just and authorized cause. Foremost, jurisprudence has consistently held that the elements of an employer-employee relationship are: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee on the means and methods by which the work is accomplished.” It is beyond question that the hiring and selection of the complainant was done by respondent companies. Respondent companies’ act of dismissing (though illegal) complainant from her employment, in effect, acknowledged the complainant as its employee. The Notice of Termination® itself is unequivocal in affirming the complainant’s probationary employment status, to wit: XXX In the best interest of the company, we have decided to terminate your services (which is still on probationary status)’ effective October 17, 2016. > king of Kings Transport v Mamac, G.R. No. 166208. June 29, 2007 >Sonza v. ABS-CBN Broadcasting Corporation, G.R. No, 138051 (10 June 2004) "See Annex “6” Emphasis oursXXX Further, the pay slips® of complainant are evidence of payment of wages. Thus, considering the foregoing facts and law, it is undisputable that complainant is a probationary employee of respondent companies and that there exists an employer-employee relationship between complainant and respondent companies. A probationary employee, like a regular employee, enjoys security of tenure’ and thus he/she cannot be terminated without just or authorized cause. In its Notice to Explain® signed by respondent Diaz, the respondents alleged that the security guard on-duty confirmed the complainant’s involvement in the removal of the personnel/Guest Logbook at the security outpost at the offices of respondent companies. In her reply? to the said Notice to Explain, the complainant does not deny her involvement in the said momentary removal of the logbook from the outpost. Respondent companies, in its Notice of Termination" to the complainant has considered the foregoing alleged act of the complainant to be against the Company's interest and policy as provided under Section 11, Article Ill of GHECC’s Code of Conduct, to wit: XXX In the interest of the company, we have decided to terminate your services (which is still on probationary status) effective October 17, 2016. The basis are: Section 11 of Article Ill of GHECC Code of Conduct: Unauthorized disclosure of any valuable information or making available such information wherein the interest of the company is prejudiced. Art. 282 of the Labor Code (Termination by employer).An employer may terminate an employment for any of the following causes: Serious misconduct or willful disobedience by the employee of the lawful orders of his *See Annexes "6" “8-1” and “B-2" Omnibus Rules Implementing the Labor Code, Book VI, Rule 1, Sec. 6; Robinsons Galleria/Robinsons ‘Supermarket Corporation and/or Jess Manuel vs Irene R. Ranchez, G.R. No. 177937 ‘See Annex “E” * See Annex “F" * See Annex "G”employer or representative in connection with his work; Fraud or willful breach by the employee of the trust reposed in him by his duly authorized representative;” Respondent companies failed to establish clearly and convincingly that the acts of complainant are tantamount to acts prejudicial to the interests of the company. The Alleged Misconduct of Complainant does not constitute serious misconduct on the part of complainant to justify the termination of her employment. The first ground cited by the respondent to support complainant’s termination from employment is anchored on the “unauthorized disclosure of any valuable information or making available such information wherein the interest of the company is prejudiced,”” the same being allegedly prohibited under the GHECC Code of Conduct. At the outset, complainant would like to inform this Honorable Office that no such guideline has been made known to the complainant at the time of her engagement from the company nor was there any manual or Code of Conduct which she has been notified of during her stay with the respondents. Coca-Cola Bottlers, Phils., Inc. v. Kapisanan ng Malayang Manggagawa sa Coca-Cola-FFW" is instructive of the fact that the orders from the employer must be reasonable, lawful and made known to the employee. Assuming without necessarily admitting that such code of conduct exists or was made known to the complainant, the complainant respectfully submits that the said provision is not applicable to the case at hand. By the wordings of the alleged Section 11 of Article Ill of the GHECC Code of Conduct, what is being prohibited is the disclosure or revelation of any valuable information that may cause prejudice to the interests of the company. The complainant has not revealed any confidential information that may harm the company nor was there any Notice of Termination, see Annex "6" See Annex "G” * GAR. No. 148205, February 28, 2005, 452 SCRA 480allegation from the respondents in any of their office memorandum that complainant disclosed valuable information prejudicial to the company’s interest. In the contrary, complainant’s intention was to confer with the bosses of the company regarding the irregularities which she has observed from day one of her work. In her written Letter of explanation, complainant clarified that the only reason she caused the removal of the logbook from the outpost was borne by her honest intentions to protect the interests of the company. The complainant deemed it necessary to collect evidence of the unusual incident she has witnessed - that a vehicle not belonging to the company was allowed entry into the premises of the company to fill up fuel from the company’s own tanker. Even assuming that complainant has committed the alleged act in violation of the company rules, said alleged act must not be considered as a valid cause for the termination of the employment of complainant, as the act complained of has not been performed with wrongful intent, and that the same is not serious. In fact, she had thoroughly explained in her letter-reply* and during the conference with respondent Diaz that complainant was rather protecting the interest of the company, to quote: XXX, 4) Thru honest intentions on my part to protect the interests of the company, | deemed it necessary to collect evidences adverse to it. | thought that our supplies are intended mainly for our consumption, likewise, our gasoline reserves are for our equipments|vehicles use only. An unusual incident happened and recorded. So | took note of it. But for you | was wrong. Xxx The High Court, in a litany of decisions on serious misconduct warranting dismissal of an employee, has ruled for the misconduct or improper behavior to be a just cause for dismissal, the following requisites must concur: 1. It must be serious;* * annex “F" hereof. * Emphasis supplied.uw 2. It must relate to the performance of the employee’s duties; and 3. It must show that the employee has become unfit to continue working for the employer."° Further, it is a well settled rule in this jurisdiction that in order to constitute serious misconduct which will warrant the dismissal of an employee under paragraph (a) of Article 297” of the Labor Code, it is not sufficient that the act or conduct complained of has violated some established rules or policies. It is equally important and required that the act or conduct must have been performed with wrongful intent.” All told, respondent companies failed to prove that the complainant's violation of its alleged GHECC Code of Conduct, had been performed or coupled with wrongful intentions in order for the same to be considered as serious misconduct. Complainant’s violation of the alleged Code of Conduct does not constitute fraud or willful breach by the employee of the trust reposed in him by his duly authorized representative. Also in relation to the discussions above, respondent companies’ allegation that the alleged act, in violation of the Code of Conduct of the respondent, constitutes Fraud or willful breach by the complainant of the trust reposed in him by his duly authorized representative is bereft of merit. It is a well settled rule in this jurisdiction that an employer may terminate the services of an employee due to loss of trust and confidence. However, the loss must be based not on ordinary breach by the latter of the trust reposed in him by the former, but, in the language of Article 297 (c) of the Labor Code, on willful breach. A breach is willful if it is done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. Elsewhere stated, it must rest on substantial grounds and not on the employer’s arbitrariness, whims, caprice or suspicion; otherwise, the employee would eternally remain at the “Roquero v. Philippine Airlines, Inc, G.R. No. 152329; Philippine Aeolus Automotive United Corporation v. NLRC, G.R. No. 124617. Renumbered Labor Code, pursuant to Department Advisory No.01, series of 2015. 3 Moreno v. San Sebastian College-Recoletos, Manila, G.R. No. 175283 (28 March 2008)mercy of the employer. It should be genuine and not simulated; nor should it appear as a mere afterthought to justify earlier action taken in bad faith or a subterfuge for causes which are improper, illegal or unjustified. The Supreme Court held, likewise, in the case of Solidbank Corporation v. Mindanao Ferroalloy Corporation®® that fraud and misrepresentation are, therefore, never presumed; it must be proved by clear and convincing evidence and not mere preponderance of evidence. In the instant case, no evidence was presented that the removal of the logbook in order for the complainant to take pictures of the entries thereon was part of a devious effort to defraud respondent companies. If anything, such act of complainant will demonstrate some degree of nosiness on her part, but it is an incredible conclusion to state that the alleged act of complainant constitutes fraudulent intentions or willful breach on the part of complainant. Thus, respondent failed to prove that the complainant’s alleged violations of its Code of Conduct, had been performed or coupled with fraudulent intentions nor that in the performance of such alleged acts, complainant had willfully breached the trust reposed on her by respondent companies. Respondents failed to present evidence sufficient to justify the termination of the employment of complainant. It is worth noting that in termination cases, the employer bears the burden of proving that the dismissal of the employees is for a just or an authorized cause. Failure to dispose of the burden would imply that the dismissal is not lawful, and that the employee is entitled to reinstatement, backwages and accruing benefits. Moreover, dismissed employees are not required to prove their innocence of the employer's accusations against them.” In the instant case, the records would show that the evidence, if any, presented by respondents is not sufficient to consider the acts of complainant as valid cause for the termination of the employment of the latter. Besides, if there is anything that respondents had established, it is that the complainant caused the momentary removal of the logbook Dela Cruz v. NERC (268 SCRA 458), 1997 ® GR. No. 153535 (28 July 2005) san Miguel Corporation v. NLRC, G.R. No. 153983 (26 May 2009).13, from the outpost - nothing more. As to complainant's alleged wrongful or fraudulent intentions, gross negligence and wrongful breach of trust, nothing in the records would show that acts complained of against complainant were committed in bad faith or with fraudulent or wrongful intentions. Simply put, respondents, possibly, should have given complainant a warning or even a suspension for that matter, but not outright dismissal. It must be stressed that one must keep in mind that a worker’s employment is property in the constitutional sense, and he cannot be deprived thereof without due process and unless it was commensurate to his acts and degree of moral depravity.” The complainant was _ illegally dismissed from her employment to conceal her discovery of the crime committed by a public official of Majayjay. As shown above, the complainant did not commit any misconduct, what complainant had committed is the discovery of an unlawful act committed by a public official who filled up gasoline in his vehicle coming from the gasoline depot of respondent companies. In rushing the termination of complainant’s employment, it is quite obvious that respondent companies have no other intention but to conceal the discovery by the complainant of the crime committed by a public official of Majayjay. This discovery of such crime is not a misconduct but it is honorable and courageous conduct by the complainant with no other intention but to protect the right and interest of respondent companies. Thus, the complainant should not be punished for her discovery of such crime but she should be rewarded for the same. The respondent companies are liable for underpayment of wage and night shift differential to complainant. During her employment with respondent companies, the complainant had received a basic pay of only P296.00, as shown in her pay slips. ® Coca-Cola Bottlers, Phils, Inc. v. KapisananngMalayangManggagawasa Coca-Cola-FFW, G.R. No. 148205, (28 February 2005). * annexes “8,” "B-1," and "8-2"On the other hand, the minimum wage for non-agricultural worker for Region IV-A, the place of location of Majayjay, is P356.50. Thus, there is a underpayment in the wage of the complainant in the sum of P60.50 per day. Also, complainant is rendering night works to respondent companies but she is not being paid for her night-shift differential as shown in her said pay slip. Thus, respondent companies should be made to pay to complainant her night shift differential pay. Further, considering respondent companies are not paying the minimum wage to complainant, then respondent companies are in effect not paying the correct overtime pay to complainant and thus respondent companies must be made to pay to complainant for corresponding adjustment in overtime pay in accordance with the minimum wage of P356.50 in Majayjay for the period covering August 17, 2016 to October 18, 2016. The complainant is entitled to award of full backwages. In view of the foregoing, it is clear that the dismissal of complainant’s employment is illegal. Accordingly, the award of full backwages plus allowances and other benefits, computed from the time of her illegal dismissal up to the final adjudication of the instant case to complainant is proper in the instant case. The award of backwages is an elementary legal remedy granted to employees upon finding of illegal dismissal and indubitably sanctioned under the Labor Code of the Philippines.” The High Court, in the case of Philippine Journalists, Inc. v. Mosqueda held that under [Article 279], an employee who is unjustly dismissed is entitled not only to reinstatement, without loss of seniority rights and other privileges, but also to the payment of his full backwages, inclusive of allowances and other benefits or their monetary equivalent, computed 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,” or if reinstatement be not possible up to the finality of the decision granting full backwages.** In addition, the computation of said regularly paid allowances and benefits as part of the backwages should be made up to the date of 2 Tan v. NLRC, 271 SCRA 216 ® G.R, No. 141430 (07 May 2004) Fernandez v. NLRC, G.R, No, 105892 (28 January 1998)reinstatement as provided under [Article 279] of the Labor Code or, if reinstatement be not possible up to the finality of the decision granting full backwages.” The raison d’ etre for the payment of backwages is equity. Backwages represent compensation that should have been earned by the employee but were lost because of the unjust or illegal dismissal.”* Complainant is entitled to an appropriate separation pay for the illegal termination of his employment. Complainant is entitled to an appropriate separation pay for the illegal termination of his employment. Separation pay is awarded in instances where the relations between the employer and employee have been so severely strained that it is not advisable to order reinstatement, or when the employee decides not to be reinstated. In such events, the employer will instead be ordered to pay separation pay.” In the present case, and considering the strained relation between the complainant and respondents, complainant herein chooses not to be reinstated, and in lieu thereof, she is entitled for the payment of separation pay considering that her reputation in the company has already been degraded because of the false and baseless accusations against her by respondents. Case law has provided the following as basis for the computation of separation pay, to wit: (1) the amount equivalent to at least one (1) month salary or to one (1) month salary for every year of service, whichever is higher, a fraction of at least six (6) months being considered as one (1) year?°; and (2) allowances that the employee has been receiving on a regular basis.” Complainant is entitled to payment of moral and exemplary damages. Since it is clear from the foregoing discussion that the illegal dismissal of complainant by respondents was attended by bad faith as he was dismissed outright without any valid ground or basis, then ” tbid, 7° PLDT v. NLR, G.R, No. 106947 (02 July 2002) *kingsize Manufacturing Corporation v. NLRC, G.R. Nos. 110452-54 (24 November 1994) st. Luke’s Medical Center, Inc v. Notario, G.R. No, 152166 (20 October 2010) > Planters Products, Inc. v. NLRC, G.R. No. 78524 (20 January 1989)16 respondents are jointly and severally liable to complainant for moral and exemplary damages. The legislative intent appears to clearly allow recovery in proceedings before Labor Arbiters of moral and other forms of damages, in all cases or matters arising from employer-employee relations. This would no doubt include, particularly, instances where an employee has been unlawfully dismissed. In such a case, the Labor Arbiter has jurisdiction to award to the dismissed employee not only the reliefs specifically provided by labor laws, but also moral and other forms of damages governed by the Civil Code. Moral damages would be recoverable, for example, where the dismissal of the employee was not only effected without authorized cause and/or due process ~ for which relief is granted by the labor code - but was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy.” In addition, suffice it to say that the award of exemplary damages is proper to serve as protection to other employees of respondents and to serve as an example or correction for the public good. Complainant is entitled to payment of attorney’s fees. Lastly, complainant is also entitled to attorney's fees. In the instant case, as a result of the illegal dismissal of complainant, she was forced to litigate and avail the services of counsel in order to protect her right and interests. It is settled that in actions for recovery of wages or when the employee is illegally dismissed in bad faith or where an employee was forced to litigate and incur expenses to protect his rights and interests by reason of the unjustified acts of his employer, he is entitled to an award of attorneys fees. The same is justifiable under Article 111 of the Labor Code; Section 8, Rule Vill, Book Ill of its Implementing Rules; and paragraph 7, Article 2208 of the Civil Code.® Moreover, in cases for recovery of wages, the award of attorney's, fees is proper and there need not be any showing that the employer acted maliciously or in bad faith when it withheld the wages. There need only be a showing that the lawful wages were not paid accordingly." %yaglutac vs. National Labor Relations Commission, 189 SCRA 767 » Baron Republic Theatrical v. Normita P. Peralta et al, G.R. No. 170525 (02 October 2009. * Ibid.7 Respondent Diaz acted in bad faith in terminating the employment of complainant. As mentioned above, during the conference called by respondent Diaz after the complainant submitted her answer/explanation to the notice of explanation, respondent Diaz hurled invectives against complainant. Instead of hurling invectives against her, complainant submits that respondent Diaz should have praised and rewarded her effort in discovering, thru her own initiative, the crime committed by a public official of Majayjay. In acting otherwise, respondent Diaz has obviously acted in bad faith and with no other purpose but to conceal the commission of such crime. Otherwise stated, in punishing the complainant instead of rewarding her for the discovery of such crime, it appears that respondent Diaz has sanctioned and authorized the unlawful conduct of MPDC Rosas in filling up his Toyota Innova with gasoline coming from the gasoline depot of respondent companies. Such conduct is obviously unlawful and violative of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act and/or Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. Clearly then, respondent Diaz acted in bad faith in the termination of the employment of complainant and for which he should be held jointly and severally liable with respondent companies for the illegal dismissal of complainant. WHEREFORE, complainant most respectfully prays to the Honorable Labor Arbiter to render judgment in her favor and against respondents by holding them liable for illegal termination of her employment and ordering respondents, as follows: 1. To pay backwages plus allowances, 13 month pay and other benefits, reckoned from the date of the illegal termination of the employment of complainant until the final adjudication of this case; 2. To pay complainant the underpayment of wages and overtime pay and non-payment of night differential pay for the period covering August 17, 2016 to October 18, 2016; 3. To pay complainant the appropriate separation pay, in lieu of reinstatement, for the illegal termination of her employment computed on her latest salary rate before the illegaltermination of her employment and from the time of her employment until the final adjudication of this case; and 4. To pay complainant moral damages in the sum of at least Php. 300,000.00, exemplary damages in the sum of at least Php. 300,000.00 and attorney’s fees equivalent to ten (10%) percent of the money judgment. Complainant prays for such other reliefs just and equitable in the premises. Majayjay, Laguna for Calamba City, Laguna. 25 January 2017. MARY RO! MARINES Complainant Copy Furnished: GLOBAL HEAVY EQUIPMENT& CONSTRUCTION COMPANY / MAJAYJAY HYDROPOWER COMPANY, INC., #16 Xavierville Royale Condominium Xavierville Ave., Brgy. Loyola Heights, Quezon City and Brgy. Piit, Majayjay, Laguna ARMANDO L. DIAZ Authorized Managing Officer GLOBAL HEAVY EQUIPMENT& CONSTRUCTION COMPANY] MAJAYJAY HYDROPOWER COMPANY, INC., Brgy.Piit, Majayjay, Laguna19 VERIFICATION AND SWORN CERTIFICATION OF NON-FORUM SHOPPING 1, MARY ROSE O. ALMARINES, of legal age, Filipino, and with residence at 215 Blumentritt St., Majayjay, Laguna, after having been sworn in accordance with law, do hereby depose and states - that: 1. lam the complainant in the above-entitled case. 2. Ihave caused the preparation of the foregoing Position Paper. 3. | have read and understood the contents of said Position Paper and the same are true and correct of my own personal knowledge and based on authentic records. 4.1 have not heretofore commenced any other action or counterclaim involving the same issues in the Supreme Court, Court of Appeals or any other government tribunal or agency. 5. To the best of my knowledge, no such action or counterclaim is pending in the Supreme Court, Court of Appeals or different division thereof, or any other government tribunal or agency. 6. If | should hereafter learn that a similar action or counterclaim has been filed or is pending before the Supreme Court, Court of Appeals or different Divisions thereof, or any other government tribunal or agency, | undertake to promptly inform this Court, and the aforesaid Courts and such other government tribunal or agency of that fact within five (5) days therefrom. MARY ENG anes SUBSCRIBED AND SWORN to before me this 25 day of y 2017, in Liliw, Ixgun . Affiant exhibited to me her with expiration on as proof of her identity. Doc. No. 234 5 ng smrcann Page No. 9475 Until Decenber Siar : : 3692877 / 1-03-20 Book No. 1x 4038427 Ingune Chepter Series of 2017. Attorney's Rell. Ne:2#226 Tin not 132-356-921-000ANNEX'A”‘GLOBAL HEAVY EQUIPMENT & CONSTRUCTION CORP. = reste pe ee AR ET (NA ease = ope HAV LNA aes cea pola Spee ae aa ae ae ce oe ae mee : ee ps cts 4 : ‘beta er aa rs Me wernt) ae we = er 5 inca oS ; ae : ; oe = a Se ee ; masta 5 oe 5 : pay a svi = / —— nase eee es : inn fore a le So fees, oe cease panes rep : sae +a rey eeeANNEX “Ba ” (GLOBAL HEAVY EQUIPMENT & CONSTRUCTION CORP. i i resp oat Sone an ae i Tonal Srraaia \ 1 more com meee nt ee I 1 naam Amn Bas Oates i i apes soe i rca ra og | 1 Grebo i 1 leu awe xan | eo te : i ee ¢ ; | naceedtm Se | eC Pg — sae nortan 0 tn tis | i paleo 5 i i poyrentats | ! enter eo ! i Mtternaor eco i i ‘Rest Day (130%) 16.00 ts mo | ! Rost & Reg Heliday he 1 i Sana fo i i Stay peice wo | i Sunes i i — i i siete i Total Grass Pay r sassy | i Geqannul i eres i Soham weas | i ‘Paibealte Premives $0.00 | 1 those a ee ero et i ta : oe : etc = Ney & Bak “tl Dette r Nex Pay Pamva wotnt, Sham oe oeeenoue =, == a Ta ae 1309 augyWek 50 ao “es orcs) 600 ‘np Dy (9 i eee ore Ee E Bie 2 a eS Be 2G smiome > 2 ed ESS cme on array >Annex “0” REPUBLIC OF THE PHILIPPINES ) )s.s. SINUMPAANG SALAYSAY AKO, ATILANO C. ORDONEZ, may sapat na gulang, Pilipino, matapos makapanumpa ng ayon sa batas ay nagsasaad ng mga sumusunod: 4. Ako ay naninirahan sa bayan ng Majayjay, Laguna (Majayjay) at ako ay nakatira sa Blumentritt Street, Brgy. P. Origuel, Majayjay, Laguna. 2. Ang kalye (Blumentritt) na kung saan nandoon ang aming bahay na siyang kalye na dinadaanan ng mga sasakyan papunta sa Municipal Building ng aming bayan. 3. Nakilala ko ang aking kababayan na si G. Arnel Rosas na may katungkulan sa aming bayan bilang Municipal Planning and Development Coordinator (MPDC) at siya ay nakatira din sa Brey. P. Origuel, Majayjay. 4. Na noong panahong August 1, 2016 hanggang October 30, 2016, at dahil na rin si G. Rosas ay nakatira sa Brgy. P. Origuel, si G. Rosas ay palaging dumadaan sa aming kalye papasok sa kanyang trabaho sa Munisipyo at siya ay nagmamaneho ng Toyota Innova na may Plate No. AAD 4607. 5. Na palagi kong nakikita si G. Rosas ang nagmamaneho ng nasabing Toyota Innova na may Plate No. AAD 4607. 6. Na ang Sinumpaang Salaysay na ito ay aking ginawa upang patunayan na pawang katotohanan ang nakasaad sa unahan nito at upang patunayan pa rin na noong panahong August 1, 2016 hanggang October 30, 2016 si G. Rosas ang palaging may dala at nagmamaneho ng Toyota Innova na may Plate No. AAD 4607. Sa KATUNAYAN NG LAHAT NG ITO, ako ay lumagda sa ibaba nito, ngayong ika_25 Ng Enere, 2017 dito sa parse, Ingun- ote NagsasalaysayNILAGDAAN AT SINUMPAAN sa harap ko, ngayong ika-_25__ araw ng buwan ng _Enere treng 2017 __ Namay ID No. casts NOTARYO PUBIAKO- Vatil Deconbor 34,2: ADA 3 POR Me: 3602877 / 1-03-2017 Kas. Blg. 2335 IBP Ke:1038427 Ingune Chapter Dahon Blg. e47_; Attorney's Rell We:28226 Aklat Blg. x 5 ‘Tin we: 132-356-021-00 Taong 2017.ANNEX “E GLOBAL HEAVY EQUIPMENT & CONSTRUCTION CORPORATION Man hades 81 Kae ile Ryale Conderinum, evel re Loa Hi, ern Cy DY rerven tones toss octane esosers enersane Pre fe af cede ayn ate andl Qin fen eee 62 fare 074568 Ne Sr [09S O00605 Sn) 7235505 Gta LL [qulpment Yard Address: 1267 Suruong Hi-Way, rey. Mambugan, Apolo City UDINE, ceca were: saoyiansotenyeaspmenet OFFICE MEMORANDUM NO. 001-17 DATE : October 13, 2016 To: Ms. Mary Rose 0. Almarinos From + Mr. Armando L. Diaz Authorized Managing Officer fe, : Notice to Explain Dear Ms. Almarinos: You are formally directed to explain in writing within seventy two (72) hours from receipt of this Memorandum why you should not be held administratively liable for being involved in the removal the Personnel/Guest Logbook at the security outpost, at the offices of Global Heavy Equipment & Construction Corporation and Majayjay Hydropower Company, incon October 10, 2016. This was confirmed. to the undersigned by the security guard on duty. 7 V/ Your act of being involved in the taking away the said logbook from the security outpost constitute an offense against Company's interest and policy as provided under Section 8, Article Ill of GHECC’s Code of Conduct. AuthOrized Managing Officer Copy furnished: AMANDOT, DIAZ President/CEO RIESE L. DIAZ Vice Presidentanne “EF / MR. ARMANDO. R. DIRZ AUTHORIZED MANAGING OFFICER GLOBAL HEAVY EQUIPMENT 4 ConigTRUCTION CORPORATION GIRS IW REPLY tO your memo dated 10/12/20 re- my invoNement io the taking oF the lagbock For Pereonne| / Guests, TE humbly explain the ralicnole pos the incident. 2) Thy horect intentions on my part to prolect the interest op the company , I deemed it necescory 0 collec, evidences adverse 40 ih T thovgnt that ovr supplies ore. ended mainly For oye consumption likewise, OUP gasoline necerves are For Our equipments | vehicles Use only. Ard dnisual indent hagpenect and recorded. So TL take note oF W. Bub For yo Tums wrong - 2) Incidents demearor fo my person had been done to demolish my, credibility - a. We Cenployees vedo BBY cecrelly contribyled for the Surprise, Bday of PM. Every centavos Spent was prom the contri - Dotionc but poord oF later wos reimbursed by ARcapio soerevinas from the hauling gunds. I was conpronted by Pm. bd. Malam Trene Solis told PY that He Municipal Adminictentor Mre FALEN B.CLADO called her ne - Mayor's VIDEDKE, Ma/am Irene sold, PM that we Stoked GLoBALS name. in ‘corrowing the Videcke - Tailed my Gicker Cmmyord) to acked her MomiE® -i-LAw., Admin Elen and the admins reply »why would she call Ma/am Trene, When Che does not now T borrowed tr foom my sicter c. Ma’am Trene. alledgely ‘old Mayor JOO CLADO trot T was wh doing my yb as Twas required Yo perform. She caid Twos always oxlotng Facebook duting work hoor, How could rt be when there's hai Wy nol even a ingle bac oF signal ot DL Torepier, we dont have Computer at the office Clear evidence Att T woe being, demolished For reasons TF don't Know -| Annex “ie” GLOBAL HEAVY EQUIPMENT & CONSTRUCTION CORPORATION ‘Mania Address: £52 xavlevile Royale Candominiu, Yaverile Ave Grey. Loyole Heights, evo Cy Tel is, 24425-2685 Tella No os}eTe-209;(}en8 8998 1, 042585 053; col Ho, smat [5] 460N369604/ Sn (s)9z2038829% 247 Sumolong Woy, ray Membspan,Aaiple Cy ho flabolneaeyeaipmert et (OFFICE MEMORANDUM NO. 001-17-A DATE October 17, 2016 To: Ms. Rose Almarines From : Ms. Chrislyn B. Basilio HR Officer Re: NOTICE OF TERMINATION Dear Ms. Almarines: In your written response to Office Memorandum No. 001-17, you have admitted your direct involvement in the removal of the Personnel/Guest Logbook at the security outpost at the offices of Global Heavy Equipment & Construction Corporation and Majayjay Hydropower Company, Inc. on October 10, 2016. During your conference with our Authorized Managing Officer on October 13, 2016, you likewise admitted to him that it was you who instructed Mr. Michael Pescuela to Femove the logbook from the security outpost to satisfy your own purpose. The reasons and explanations you have provided in your written response are not acceptable and does not justify your serious infraction of company rules and regulations. In the best interest of the company, we have decided to terminate your services (which is stil! on probationary status) effective October 17, 2016. The basis are: Section 11 of Article Ill of GHECC Code of Conduct: Unauthorized disclosure of any valuable information or making available such information wherein the interest of the company is prejudice. (TYPE E : Termination) Art, 282 of the Labor Code (Termination by employer). An employer may terminate an employment for any of the following causes Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; Fraud or wilful breach by the employee of the trust reposed in him by his employer or duly authorized representative;Please turn over your work including all company-owned materials/properties to HR- Admin Ms. Fedatis Belano for the processing of your clearance. You need to be cleared from all department concerned of all your outstanding obligations before ‘you last pay will be given to you, crSivn 8, Basitio HR tices Copy furnished: AMANDO T. DIAZ President/CEO RIESE L. DIAZ Vice President ‘ARMANDO L. DIAZ Authorized Managing Officer