REPUBLIC OF THE PHILIRPINES® Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSIGN Regional Arbitration Branch No. IV" Calamba City I Pa MARY ROSE O. ALMARINES, / Complainant, ( - versus - NLRC Case No. 11-01751-16 GLOBAL HEAVY EQUIPMENT AND CONSTRUCTION CORP./MAJAYJAY lle|p Goo HYDROPOWER COMPANY, INC./ Fea. AMANDO T. DIAZ Respondents. POSITION PAPER GLOBAL HEAVY EQUIPMENT AND CONSTRUCTION CORP./MAJAYJAY HYDROPOWER COMPANY, INC. AND AMANDO T. DIAZ, by counsel, to this Honorable Court, respectfully states THAT: THE PARTIES 1. Complainant MARY ROSE O. ALMARINES is Filipino, of legal age, and with residence at 215 Blumentritt St. Majayjay, Laguna. She was a former timekeeper of the company for the Majayjay project. 2. GLOBAL HEAVY EQUIPMENT AND CONSTRUCTION CORP. is a domestic corporation duly organized and existing pursuant to the laws of the Republic of the Philippines and it has its business address at GHECC Bldg., #169 Chico St., Quirino 2C Quezon City. It is represented herein by its Human Resource Manager, Chrislyn Basilio who is duly authorized pursuant to the attached Secretary Certificate. FACTS 3. Complainant Almarines was requested to be hired by the Municipal Mayor of Majayjay, Laguna. 4. To appease the Mayor of Majayjay, Laguna, the Respondent Global Heavy Equipment and Construction, Inc. (the Company) hired heras a probationary employee of a timekeeper of the Company on August 18, 2016. She is not an employee of Majayjay Hydropower Company. The Company is engaged in the Hydropower construction in Majayjay, Laguna and all its processes are strictly confidential due to the delicate nature of the work involved. 6. Given the highly political and financial environment of the project, the Respondent Global values strict confidentiality of the said information and data. 7. As such, Complainant was strictly warned not to divulge any form of confidential information to anyone as there have been reports that local officials and other interested parties are very interested in the processes, data, capital equipment and personnel involved in the project. 8. _ A few weeks into the job, the Respondent Company thru their personnel came to be surprised that a number of outside persons know the pertinent information regarding the project ie. number of bunker fuel used, machineries taken in, trucks and vehicles that are being utilized and number of personnel. 9. The Respondent Company is very wary because there has been a request by alleged New People’s Army personnel for a form of donation. 10. There have been a number of requests for donation from the local government units albeit verbal citing the number of equipment and other pertinent financial data that the Company has. 11. The Respondent Company officials were thus surprised about the turn of events. 12. On October 10, 2016, the Complainant with the assistance of Mr. Michael Pescuela, obtained the Personnel/Guest Book for purposes of obtaining information and/or duplication. 13. He and Complainant took the logbook to a place about ten to fifteen minutes away to do what they wished, either copy/duplicate/or investigate. In either case, they are not allowed to do so. 14. The guest book records the various equipment, machineries, diesel, personnel that goes in and out of the Company premises. It likewise records the quantity of stocks, materials, and other related equipment/machineries that are going in and out of the Company premises.15. She instructed this despite the fact that she is not involved in any way or form with the logbook and which she knows is highly confidential. In fact, this particular act is theft since she was not authorized to take said company property and freely dispose of it. 16. Upon being informed of said breach of highly confidential directive, Office memorandum dated October 13, 2016 was issued to Complainant asking her to explain why she should not be subject to disciplinary proceedings. A copy of Office memorandum dated October 13, 2016 is attached as ANNEX “B” 17. Complainant, in her explanation, admitted she has taken the logbook thru her accomplice Michael Pascuela. She claimed that she has only taken it for purposes of collecting evidence. She likewise cites other irrelevant matters. A copy of her explanation is attached herewith as ANNEX “C” 18. The statement of the Guard on Duty is attached as ANNEX «p”, 19. Due to this serious infraction of theft and disclosing of confidential information, the Complainant was terminated thru Office Memorandum dated October 17, 2016. 20. The Complainant only worked for the Respondent Global Heavy Equipment and Construction Ine. for about two months and yet, had the gall to commit such blatant thievery and disclosing of highly sensitive and confidential information. 21. During the mandatory conciliation, the Complainant was demanding Php3,500,000.00 as settlement. It appeared that she is filing this complaint for purposes of unjust enrichment. Naturally, her baseless claims were denied. 22. Hence, the submission of this Position Paper.ISSUES WHETHER THE COMPLAINANT WAS ILLEGALLY DISMISSED WHETHER THE COMPLAINANT IS ENTITLED TO. HER CLAIMS FOR DAMAGES, 23. The Complainant of two months was briefed on the confidentiality of the projects of Global, especially this Majayjay project. 24. For this she was given appropriate procedural and substantive due process to explain her side why she took the Company property for her own purpose with the aid of another employee Michael Pescuela. 25. Jurisprudence has held that serious misconduct such as theft and committing acts inimical to the interests of the Company may be subject to disciplinary sanctions, including termination. 26. _ In the case of NAGKAKAISANG LAKAS NG MANGGAGAWA SA. KEIHIN (NLMK-OLALIA-KMU) and HELEN VALENZUELA vs. KEIHIN PHILIPPINES CORPORATION, G.R. No. 171115, August 9, 2010, the Supreme Court held that mere taking of a single piece of packing tape constitutes a serious misconduct, viz: Misconduct is 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." For serious misconduct to justify dismissal under the law, "(a) it must be serious, (b) must relate to the performance of the employee's duties; and (c) must show that the employee has become unfit to continue working for the employer." In the case at bar, Helen took the packing tape with the thought that she could use it for her own personal purposes. When Helen was asked to explain in writing why she took the tape, she stated, "Kumuha po ako ng isang packing tape na gagamitin ko sa paglilipat ng gamit ko sa bago kong lilipatang bahay." In other words, by her own admission, there was intent on her part to benefit herself when she attempted to bring home the packing tape in question. It is noteworthy that prior to this incident, there had been several cases of theft and vandalism involving both respondent company’s property and personal belongings of other employees. In order to address this issue of losses, respondent company issued two memoranda implementing an intensive 4inspection procedure and reminding all employees that those who will be caught stealing and performing acts of vandalism will be dealt with in accordance with the company’s Code of Conduct. Despite these reminders, Helen took the packing tape and was caught during the routine inspection. All these circumstances point to the conclusion that it was not just an error of judgment on the part of Helen, but a deliberate act of theft of company property. In the case of Firestone Tire and Rubber Company of the Philippines v. Lariosa involving an employee who was caught by the security guards of the company during a routine inspection with possession of company property, we held that: There is no gainsaying that theft committed by an employee constitutes a valid reason for his dismissal by the employer. Although as a rule this Court leans over backwards to help workers and employees continue with their employment or to mitigate the penalties imposed on them, acts of dishonesty in the handling of company property are a different matter. We hold that Helen is guilty of serious misconduct in her act of taking the packing tape. 27. In the case at bar, the Complainant is not only tasked with taking a piece of packing tape, she was terminated due to her act of taking, thru her associate, the company logbook of information as to machineries, equipment, materials (including quantity and quality of bunker fuels) and personnel who go in and out of the company premises. 28. In the case of DIVINE WORD COLLEGE of SAN JOSE and FR. ELEUTERIO S. LACARON, SVD, vs. HERMINIA G. AURELIO, G.R. No. 163706, March 29, 2007, the High Court stated that breach of the confidentiality of information of a company as well as theft of company property is a serious ground for termination, viz: Thus, loss of trust and confidence is a valid ground for dismissing an employee, provided that the loss of confidence arises from particular proven facts. Termination of employment on this ground does not require proof beyond reasonable doubt of the employee’s misconduct. It is sufficient that there is some basis for the loss of trust, or that the employer has reasonable ground to believe that the employee is responsible for the misconduct which renders him unworthy of the trust and confidence demanded by his position. As the nature of his position is grounded on the trust and confidence reposed on him by his employer, the latter is given wide latitude of discretion in terminating him for lack or absence thereof. In order to constitute a just cause for dismissal, the act complained of must be related to the performance of the duties 5of the employee such as would show him to be thereby unfit to continue working for the employer. Moreover, for loss of trust and confidence to be a valid ground for an employee’s dismissal, it must be substantial and not arbitrary, and must be founded on clearly established facts sufficient to warrant the employee's separation from work. Was there just cause in terminating the services of Aurelio? A perusal of the records and the evidence indicates that there was. The dissemination of confidential information by the respondent and the pointless labor dispute following its misinterpretation have been sufficiently proven. Procuring a report without authority, then covertly furnishing copies of the incomplete report to parties in an attempt to unfairly discredit one’s superiors, to our mind, constituted serious breach of trust and confidence. It was grossly inappropriate for respondent to misrepresent herself in order to procure the external auditor’s report. It was even worse to use the report against the college authorities who reposed on her their confidence. Passing off the report as complete when it was not, then falsely accusing one’s superiors as cheating their employees based on the report, is morally reprehensible of the highest order. These highly condemnable acts made by Aurelio as the Acting Finance Officer shows her unfitness to continue working with DWC management. The law, in protecting the rights of workers, authorizes neither oppression nor self- destruction of the employer. The employer may dismiss an employee if the former has reasonable grounds to believe, or to entertain the moral conviction, that the latter is responsible for the misconduct, and the nature of her participation therein renders her absolutely unworthy of the trust and confidence demanded by her position. DWC, in this case, was acting within its rights under the law to terminate the services of Aurelio as the Acting Finance Officer of the college. 29. Yet, in another case of CALTEX (PHILIPPINES), INC., WILLIAM P. TIFFANY, E.C. CAVESTANY, and E.M. CRUZ, vs. HERMIE G. AGAD and CALTEX UNITED SUPERVISORS' ASSOCIATION, G.R. No. 162017, April 23, 2010, the Supreme Court held that people who are tasked with protection of company property can be held liable for serious misconduct, especially in light of the circumstances, viz: Further, Agad’s conduct constitutes willful breach of the trust reposed in him, another just cause for termination of employment recognized under Article 282(c) of the Labor Code. Loss of trust and confidence, as a just cause for termination of employment, is premised on the fact that the employee concerned holds a position of responsibility, trust and confidence. The employee must be invested with confidence ondelicate matters, such as the custody, handling, care and protection of the employer's property and funds.34 As a superintendent, Agad occupied a position tasked to perform key and sensitive functions which necessarily involved the custody and protection of Caltex’s properties. Consequently, Agad comes within the purview of the trust and confidence rule. In Sagales v. Rustan’s Commercial Corporation,35 we held that in loss of trust and confidence, as a just cause for dismissal, it is sufficient that there must only be some basis for the loss of trust and confidence or that there is reasonable ground to believe, if not to entertain the moral conviction, that the employee concerned is responsible for the misconduct and that his participation in the misconduct rendered him absolutely unworthy of trust and confidence. In sum, even if Agad did not commit the alleged charge of fictitious reimbursement of crating expense, he was found to have acted without authority, a serious infraction amounting to theft of company property, in the withdrawal and sale of the 190 pieces of LPG cylinders owned by the company. Caltex, as the employer, has discharged the burden of proof necessary in terminating the services of Agad, who was ascertained to have blatantly abused his position and authority. Thus, Agad’s dismissal from employment based on (1) acts tantamount to serious misconduct or willful violation of company rules and regulations; and (2) willful breach of trust and confidence as Depot Superintendent was lawful and valid under the circumstances as mandated by Article 282 (a) and (c) of the Labor Code. 30. The only remaining amount for the Compainant is her proportional share of her thirteenth month pay which the Defendant is ready and willing to provide. 31. In the case at bar, it must be pointed out that the Complainant is still in a probationary period of employment being merely two (2) months from her being hired. 32. Even assuming she is no longer a probationary employee, her acts of obtaining confidential information about the company’s machineries, materials, personnel, and other operational details are not within the scope of her works. 33. Based on the foregoing, it is clear that the instant case should be DISMISSED for utter lack of merit.PRAYER WHEREFORE, premises considered, it is respectfully prayed that the instant Complaint be DISMISSED for lack of merit. OTHER RELIEFS, just and equitable under the premises are likewise prayed for. Quezon City for Laguna. January 16, 2017 GABRIEL &MENDOZA Law Offices Counsel for the Defendant Suite 601, Fil-Garcia Tower, 140 Kalayaan Avenue Cor. Mayaman Street, Diliman, Quezon City (02) 463-7994; /928-8817 Ctl O. GABRIEL Roll of Attorneys No. 44006 IBP No. 1017866/QC/January 5, 2016 PTR No. 2148249/QC/January 4, 2016 MCLE Compliance No. V-0019370/04.13.2016 copy furnished: Mary Rose O. Almarines 215 Blumentritt St. Majayjay LagunaRepublic of the Philippines) Quezon City )S.8. VERIFICATION I, CHRISLYN BASILIO, Filipino, of legal age, and with office address at GHECC Bldg., #169 Chico St., Quirino 2C Quezon City after having been duly sworn to in accordance with law, hereby depose and state THAT: 1.1 am_ the authorized representative of GLOBAL HEAVY EQUIPMENT AND CONSTRUCTION CORP. as shown by the Secretary Certificate; 2. Thave caused the foregoing Position Paper; 3. All the allegations contained therein are true and correct based on my personal knowledge and authentic documents under my possession; CHRISL¥N BASILIO jant SUBSCRIBED AND SYQRN to before me, a Notary Public for and in the City of Quezon City, this “Y Haygf Janury 2017, affiant exhibited to me her competent evidence of identity. Doe. No, 2%, Sere Fi ATTY, ISRAEL CPR LON ook No. XVI ary IP Series of 2017 UnriQecepsfer 31, 2017 _ Roll of Aiforneys No.61484 Notarial Commiss‘on Nc. 079 (2016-20171 BP Literime No, 10751, 3-9-2012; Q.C, Chapter PTR No. 3802504; 1.3,2017 O.C MCLE Compliance Cert. No. V-0016831-: Address: Casel Bldg. 15-A Anonas St, Pro}| _Republic of the Philippines Social Security System GuEISuyN OANDORN BASILIO oa 33-4953617' 7" CALBOCAN CTY REF Ox eatarora SUR ONER, prsags bond erty all Baa lib SauGLOBAL HEAVY EQUIPMENT & CONSTRUCTION CORPORATION i soon matin ween ter fale atten inate rie eapte saris no erst Pans te een an espns GLOBAL aariay scan nc ao OFFICE MEMORANDUM NO. 001-17 DATE October 13, 2016 To: Ms, Mary Rose O. Almarings From : Mr. Armando L. Diaz ‘Authorized Managing Officer Reraie 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, Inc.on October 10, 2016. This was confirmed to the undersigned by the security guard on duty. 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. For your immediate compliance. Authorized Managing Officer Copy furnished: 4 AMANDOT. DIAZ President/CEO RIESE L. DIAZ Vice PresidentMR. ARMANDO. R. DIRE AUTHORAZED. MANACING OFFICER GLOBAL HEAYY EQUIPMENT | congrRUCTON CORPORATION ORS IW REY tO your memo dated 10/13! 2oe re- my InoNement in the taking oF the legbock For Penconne| / Guests, I humbly explain the rationale por the incident. 2) They honest wientions on my part 40 prolech the interest o= the company , TL deemed it necescary 40 collecr, evidences adverce 40 b- T thongs thak our supplies are Wnlerded mainly Fer ovr consumption likewise.» O08 gascline recenes are For Our equipments / vehicles use only. 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