Republic of the Philippines

COURT OF APPEALS
_________ DIVISION

KRISTINE ANGELA G. BAUTISTA,

Petitioner,
CA GR. No. _______________________
-versus - Certiorari under Rule 65

NATIONAL LABOR RELATIONS

COMMISSION (NLRC)
SITEL PHILIPPINES AND MS. IVY GAMBAN
Respondents.
x------------------------------------------------------------x

PETITION FOR REVIEW ON CERTIORARI

PETITIONER-COMPLAINANT, by the undersigned counsel, and unto the
Honorable Court, most respectfully states:

PRELIMINARY STATEMENTS

“The Constitution looks with compassion on the workingman and its intent in
protecting his rights. A worker’s employment is property in a constitutional
sense and while the Court recognizes the right of an employer to terminate the
services of an employee for a just or authorized cause, the dismissal of an
employee must be made within the parameters of law and pursuant to the
tenets of equity and fair play. An employer’s power to discipline his
employees must not be exercised in an arbitrary manner as to erode the
constitutional guarantee of security of tenure.”
(ANGELES VS. MIKADO PHILIPPINES CORPORATION,
G.R. NO. 160863, SEPTEMBER 27, 2006)

This is a Petition for Review on Certiorari under Rule 65 of the Rules of Court
assailing the decision and resolution of the Honorable National Labor Relations
Commission. As will be shown in the present petition, it must be pointed out that the
Petitioner, an exemplary employee, has more than proven by substantial evidence
that her dismissal was not only illegal, it was also tainted with malice and bad faith.

Clearly, the decision of the Honorable Commission dismissing her complaint

is contrary to the mandate of the law of and jurisprudence that "in carrying out and
interpreting the Labor Code's provisions and implementing regulations, THE
EMPLOYEE'S WELFARE SHOULD BE THE PRIMARY AND PARAMOUNT
CONSIDERATION. This kind of interpretation gives meaning and substance to the
liberal and compassionate spirit of the law as embodied in Article 4 of the Labor
Code (which provides that "[a]ll doubts in the implementation and interpretation of
the provisions of [the Labor Code], including its implementing rules and regulations,
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shall be resolved in favor of labor") and Article 1702 of the Civil Code (which
provides that "[i]n case of doubt, all labor legislation and all labor contracts shall be
construed in favor of the safety and decent living for the laborer”) (PCL Shipping
Philippines, Inc. v. NLRC, G.R. No. 153031, December 14, 2006).

TIMELINESS OF THE PETITION

The decision of Honorable Arbiter MAYJARAN AJAN dated June 25, 2014
which dismissed the complaint for illegal dismissal was received by the petitioner on
September 22, 2014. The original copy of the said decision is hereto attached as
ANNEX A and made an integral part hereof. Said decision

Within the prescriptive period, herein petitioner APPEALED the decision of

the Arbiter with the Honorable Commission. Implausibly, the Honorable Commission
affirmed the decision of the Arbiter below per decision dated October 30, 2014. The
certified true copy of the said decision is hereto attached as ANNEX B and made an
integral part hereof. The decision was received on November 17, 2014.

In due time, petitioner filed a timely Motion for Reconsideration seeking for a
review of the aforesaid decision. On December 22, 2014, respondent Second
Division issued a resolution denying petitioner’s Motion for Reconsideration for “lack
of merit.” The certified true copy of the said resolution is hereto attached as ANNEX
C and made an integral part hereof. The aforesaid resolution was received by herein
petitioner on January 9, 2015. Hence, this petition for certiorari is timely filed.

THE PARTIES

PETITIONER (COMPLAINANT BELOW) is a Filipino, of legal age, with

address at No. 1103 Pioneer East Towers, Mandaluyong City, where she could be
served with summons and other legal processes.

PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION

(NLRC) – 2ND DIVISION, is the tribunal where the assailed decision came from, with
address at PPSTA Bldg., Banawe St., Quezon City where it could be served with
summons, notices and other processes.

PRIVATE RESPONDENT SITEL PHILS. appears to be a corporation

organized under Philippine laws, while PRIVATE RESPONDENT IVY GAMBAN, is a
Filipino, of legal age, and is the responsible officer thereof, with address at Sitel
Bldg., Ortigas Home Depot Complex, One Juliana Vargas Ave., Ortigas, Pasig City,
where they could be served with summons, notices and other processes.

STATEMENT OF THE CASE

Complainant filed this case on December 20, 2013 for illegal dismissal with
the public respondent NLRC as evidenced by the COMPLAINT, a copy of which is
hereto attached as ANNEX D.

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 The case was eventually raffled to Honorable Arbiter Ajan under NLRC NCR
CASE NO. 12-16350-13. Mandatory conference thereafter ensued before the Office
of Honorable Labor Arbiter who tried to convince the parties to forge an amicable
settlement for purposes of obtaining industrial peace. No settlement having been
reached, the parties were then directed to file their respective Position Papers and
other pleadings, as follows: Petitioner‘s Position Paper filed on February12, 2014
(attached as ANNEX E); Private Respondent’s Position Paper filed on February12,
2014 (attached as ANNEX F); Petitioner‘s Reply filed on February26, 2014
(attached as ANNEX G); Private Respondent’s Reply filed on February26, 2014
(attached as ANNEX H).

As stated earlier, the Hon. Arbiter ruled in favor of the private respondents by
dismissing the complaint (see ANNEX A). On October 2, 2014, petitioner filed a
timely MEMORANDUM ON APPEAL with the Honorable Commission, a copy of
which is hereto attached as ANNEX I. Thereafter, the Honorable Commission
promulgated the assailed DECISION on October 30, 2014 which dismissed
petitioner’s appeal. (see ANNEX B hereof). Petitioner filed a timely Motion for
Reconsideration on November 25, 2014, a copy of which is hereto attached as
ANNEX J. On December 22, 2014, public respondent issued the RESOLUTION
denying petitioner’s Motion for Reconsideration (see ANNEX C hereof).

STATEMENT OF FACTS

Petitioner is a REGULAR employee of respondents since June 22, 2010 with

the position of TEAM LEADER (TL). Respondents are engaged in the Business
Process Outsourcing (BPO) industry.

Petitioner faithfully and diligently performed her duties with the respondent
company. Petitioner is NO ORDINARY TEAM LEADER. She is, in fact, one of the
BEST PERFORMING Team Leaders in the respondent company. To prove this,
Petitioner was “CONSISTENTLY” given the TOP COACH AWARD for TWO (2)
CONSECUTIVE years: --

TOP COACH FOR 1ST TO 2ND QUARTER 2011

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 TOP COACH FOR JANUARY 2012

As stated in the aforesaid AWARDS, respondent company recognized the

dedication of the Petitioner to her work with the Virgin Media account. Thus:

“She is the most proactive when it comes to tasks and recommendations.

This translated to CONSISTENTLY BAGGING Upsell’s TOP COACH TITLE.”

Thereafter, in view of her exemplary performance, Petitioner was one of the

select Team Leaders who were HANDPICKED by the respondent company to be
part of MACY’S, a new and prestigious account of respondent company sometime in
May 2012. On account of her exemplary performance, Petitioner was even sent to
the corporate offices of MACY’S in the Mason, Ohio, UNITED STATES OF
AMERICA (USA) for training. Out of the 1200 EMPLOYEES of respondent company,
Petitioner was chosen with eleven (11) other employees to represent the
respondents company in MACY’s, USA.

Petitioner would not have been personally invited by the respondent company
where it not for her extreme dedication in her work. Petitioner spent 26 days in
training abroad from June 11 to July 6, 2012. After her training, she went back to
respondent company where she was again a CONSISTENT TOP PERFORMER in
the MACY’S account. (As proof, ANNEX A of the REPLY is the personal invitation of
respondent company to the Petitioner to attend the MACY’S “Train-the-Trainer”
session in Mason, Ohio, USA, and ANNEX B of the REPLY is the letter request of
MACY’s to the consulate general of the USA in Manila Philippines, requesting that a
VISA be issued to the Petitioner.)

As stated in the personal invitation, the respondent company expressed their

FULL TRUST AND CONFIDENCE to the Petitioner by stating that “we appreciate
your willingness to attend and know that you will represent us well.”

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 Aside from those awards, Petitioner was also awarded the title by the
respondents as: “COACH OF THE YEAR 2011-2012 FOR VIRGIN MEDIA SALES”
As COACH OF THE YEAR, respondents gave the Petitioner a glass trophy in
recognition of her dedication to her work. However, in spite of her exemplary
performance, Petitioner was constructively dismissed on November 26, 2013,
without any fault on her part and without due process of law.

In view of Petitioner’s “consistently bagging xxx the top coach title”in the
Virgin Media account and consistent top performance in the MACY’s account, she
was personally invited to join the FDC account by Ms. Dahlia Romana, Senior Client
Services Manager of the FDC account. This is when her NIGHTMARE began.

As narrated by the Petitioner in her verified Position Paper:

I, Kristine Angela Gapuz Bautista, 33 years old, currently residing at

U1103 Pioneer East Towers Mandaluyong City. I was hired at Sitel
Philippines last June 22, 2010 as a Team Leader/Coach for Sales.

My first account was Virgin Media Sales for Outbound located at

Cybergate Tower 2, Mandaluyong, I stayed on that account from June 2010
to May 2012 where I received the Coach of the Year Award. I was then
transferred to Macys Sales from June 2012 to August 2013.

In view of my exemplary performance, I was invited to join FDC

account (First Data Corporation) by Ms. Dahlia Romana, Senior Client
Services Manager of the company sometime in May 2013. I joined the
account on August 2013.

However, for reasons known only to them, I began experiencing

constant humiliation and harassment at the hands of the following senior
company officials, namely: Senior Operations Manager FRANCIS EDWARD
AYALA, Operations Manager MARC FERDINAND LEONCIO, and also from
Dahlia Romana,. Thus:

October 5, 2013 - I was summoned by Manager Mark Ferdinand

Leoncio sometime around 8:00 am on the vacant room located at the ground
floor of SITEL BUILDING Ortigas Home Depot Complex One Julia Vargas
Avenue, Ortigas Center Pasig City. He was very FURIOUS and made the
following statements to me:

"ALAM MO BANG BADTRIP AKO SAYO, AT PAG BADTRIP AKO SA

TAO, SINASABI KO"
"KAPAG NAHANAPAN KITA NG BUTAS, SISIGURADUHIN KONG
SUSUNUGIN KITA!"
"I AM NOT THREATENING YOU! TANDAAN MO YAN!"

Mr. Leoncio REPRIMANDED me for an office violation of alleged

sleeping while on duty as cited in the company’s Code of Conduct: Acts

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Against Good Conduct and Behavior- Personal Demeanor. I received the
CARE Form (Notice to Explain) dated October 8, 2013 and along with
ANOTHER alleged violation of Acts Against House Rules, Safety and
Security 27: Breach of Company Policy and Procedure on site Security.

October 8, 2013 – On the same date, I was issued a ANOTHER

company violation: Breach of company policy usage of cellphone inside a PCI
compliant workplace. Please see attachment for my response against the
violation.

October 9, 2013 -I was asked by Dahlia Romana to have a

conversation with Senior Operations Manager Francis Edward Ayala at his
office located at the Ground Floor of of Sitel Building at around 6:00 am.
While pointing his finger at my face, he shouted:

”KAPAG KINAKAUSAP KITA TUMINGIN KA SA AKIN!”

“TUMINGIN KA SA AKIN AT KINAKAUSAP KITA!”
“ALAM MO BA BAKIT AKO DISAPPOINTED SAYO? KASE IKAW
ANG HIGHEST PAID COACH DITO, ALAM MO BA YUN? GUSTO KO
LANG SULITIN BINABAYAD KO SAYO!”

October 14, 2013 - I submitted my response for my allege violation of

Breach of Security

October 16, 2013 –An administrative Hearing was conducted at the

Ground Floor of of Sitel Building where I was constantly harassed verbally by
Mr. Ayala. He even told me to get a “lawyer” since according to him my
company violations were very serious.

October 18,2013 – I sent an email to respondent company’s senior

officers to formally inform them of the constant harassment being employed
by Mr. Ayala, Mr. Leoncio and Ms. Romana against me. However, NO
ACTION was taken by the respondents.

October 19, 2013- Ms. Dahlia Romana filed an incident report against
me for alleged “rumor mongering”.

November 5,2013 - I received another Corrective Action Form from

Mark Ferdinand Leoncio and Francis Edward Ayala, this time accusing me of
the following violation: Against Good conduct and Behavior- Personal
Demeanor

November 7, 2013 - I was issued a SUSPENSION for 5 days for

Breach of company policy: Usage of Cellular Phone inside a PCI Compliant
workplace by Mark Leoncio and Francis Edward Ayala

November 15, 2013 - My COMPUTER was REMOVED from my desk

upon the order of Francis Edward Ayala without notifying me ahead of time.

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 With this, I was effectively DEMOTED from Training Leader (Supervisory
lever) to a regular AGENT.

November 19, 2013 – Dahlia Romana, requested for a formal meeting

with me together with a company representative to complain about alleged
DISRESPECT I committed against her.

November 25, 2013- I was REMOVED from FDC account by Ms. Ivy
Gamban, HR Manager, and was given a Trainee Evaluation Form.

November 26, 2013 – All of my security badges were DISABLED by

the respondents and so I was no longer allowed to enter the company
premises. Likewise, respondents’ SECURITY PERSONNEL PROHIBITED
ME FROM ENTERING THE SITEL BUILDING.

December 6, 2013 when I went to the company office to inquire about

the status of my employment, Francis Edward Ayala saw me and told me:

“HOY! ANONG GINAGAWA MO PA DITO!”

No return to work order was ever given to the Petitioner by the respondents
after her unjust removal from her last work assignment.

For reference, please see the attached memorandums from the respondents
as ANNEXES B, C, D and E of her Position Paper. Petitioner formally informed the
respondents about the incidents of harassment committed against her but no action
was taken by the respondent company regarding her complaints aside from an email
acknowledging receipt of her email.

Accordingly, immediately after she was removed from the FDC account
without a valid ground or due process, Petitioner was NO LONGER ALLOWED TO
ENTER the company premises. Thus, Petitioner had no other recourse but to
consider her employment as TERMINATED by the respondents and to file this
complaint for dismissal.

During the hearings for mediation and conciliation before the Honorable
Arbiter, respondents NEVER DENIED that the Petitioner was already terminated
from employment. They even accused her of committing fraud during her
employment with the company. NO OFFER was made by the private respondents
for her to return to work.

In their Position Paper, private respondents allegedly “there is no fact of

dismissal to speak of in the instant case” (page 1 thereof.) and yet, they also claim
that respondents have “VALID CAUSES TO DISMISS” the Petitioner. (see page 14
thereof). Clearly, Petitioner was CONSTRUCTIVELY DISMISSED when the
respondents subjected the Petitioner in FOUR (4) different violations of company
rules covered by FIVE (5) incident reports, all against “good conduct and behavior",

7
and this happened in a span of less than three months as they EXPRESSLY
ADMITTED by the respondents.

Unfortunately, in spite of the overwhelming evidence to the contrary,

Honorable Arbiter AJAN sided with the private respondents' version of the events
and believed ALL of the allegations of the respondents as stated in their pleadings.
As ruled by Honorable Arbiter Ajan:

Based on the evidence adduced from the records of the instant case, it
was sufficiently proven by the respondents that (Petitioner) committed a
series of infractions of respondent company’s Code of Conduct that
necessitated the imposition of sanctions as provided under the respondent’s
policy. Her series of infractions are bringing in mobile phone inside a secured
area, sleeping while on duty, creating intrigues or making false statements
against another employee, supervisor or officer of the company that harm or
destroy the reputation, authority or official standing of those concerned, failure
to abide the order of respondents to the HR office while awaiting for the
account fit to her profile, and authorized logging in and out of Sitel’s Eastwood
site and withdrawing salary without proof of productivity in the Eastwood site
of Sitel.

While these infractions are not stipulated in respondent company’s

Code of conduct, these are valid causes to dismiss an employee under Article
282 of the Labor Code, as amended. (page 19 thereof.)

With the said infraction, respondent Sitel was still lenient towards the
committed a series of acts previously, she was only given a few days
suspension. In all, the infractions, she was afforded every opportunities to
explain her side. She was even exonerated from the charges in one of the
infractions (fourth violation).

All told, the sending of notices for (Petitioner’s) series of infractions,

asking her to explain the alleged irregular acts should not be construed as a
form of harassment. This is merely an exercise of management prerogative to
discipline its employees. xxx

xxx WHEREFORE, premises above considered, judgment is hereby

rendered dismissing the instant case of constructive illegal dismissal and
monetary claims for lack of merit.

However, upon just and equitable ground the respondent company is

hereby directed to accept complainant back to work upon her option, within
the (10) days from receipt hereof, but without backwages.

SO ORDERED.

From the foregoing, it is clear that FATAL ERRORS in the finding were made
by the Honorable public respondent which, if not, corrected, will cause grave

8
injustice and irreparable damage or injury to petitioner. Public respondents acted
with grave abuse of discretion amounting to lack or excess of jurisdiction and the
assailed decision and resolution are therefore NULL and VOID. Hence, this timely
petition for certiorari as there is no appeal or other plain, speedy, and adequate
remedy in the ordinary course of law.

GROUND RELIED UPON IN SUPPORT OF THE PETITION

WHETHER OR NOT THE HONORABLE NATIONAL LABOR

RELATIONS COMMISSION ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT DISMISSED PETITIONER’S COMPLAINT
FOR ILLEGAL DISMISSAL.

ARGUMENTS AND DISCUSSION

PETITIONER WAS CONSTRUCTIVELY DISMISSED

In the recent case of JULIE’S FRANCHISE CORPORATION VS. HON.

CHANDLER O. RUIZ (G.R. No. 180988, August 28, 2009) the special civil action for
certiorari under Rule 65 is intended to correct errors of jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdiction. The writ of certiorari is directed
against a tribunal, board or officer exercising judicial or quasi-judicial functions that
acted without or in excess of its or his jurisdiction or with grave abuse of discretion.

With utmost and highest respect to the Honorable NLRC, it will be shown in
this petition that said public respondent committed grave abuse of discretion by
capriciously, whimsically, and arbitrarily disregarding the evidence presented by the
petitioner as complainant in the illegal dismissal case below.

It is important to emphasize that the Petitioner is one of the BEST TEAM

LEADERS of the respondent company, as proven by the NUMEROUS AWARDS
given to her by the respondents. Being an exemplary worker, Petitioner was given
the rare chance to be TRAINED in the Unites States at the expense of the
respondents. The respondent company even expressed their FULL TRUST AND
CONFIDENCE to the Petitioner, by stating that “we xxx know that you will represent
us well.” Unfortunately, public respondent gave weight to all the bare allegations of
the respondents and disregarded Petitioner’s narration of the events, contrary to the
guidelines set forth by the High Court in many cases. In the recent case of
JHORIZALDY UY vs. ENTRO CERAMICA CORPORATION (G.R. No. 174631,
October 19, 2011) the Supreme Court declared that:

“As to the affidavits submitted by the respondents, these are at best

SELF-SERVING having been executed by employees beholden to their
employer xxx.” (Emphasis ours.)

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 In the aforesaid case, the Supreme Court has commanded labor officials to
exercise GREAT CAUTION in giving weight to affidavits submitted by respondents.
Doubts in the evidence presented must be resolved in favor of the employee. Thus:

Furthermore, Article 4 of the Labor Code expresses the basic principle

that all doubts in the interpretation and implementation of the Labor Code
should be interpreted in favor of the workingman. This principle has been
extended by jurisprudence to cover DOUBTS IN THE EVIDENCE presented
by the employer and the employee.Thus we have held that if the evidence
presented by the employer and the employee are in equipoise, the SCALES
OF JUSTICE must be TILTED IN FAVOR OF THE LATTER.(Emphasis ours.)

Proceeding from the above guidelines set forth by the Supreme Court, it
becomes clear that the public respondent committed gravely abused its discretion
when it relied on everything that the private respondents have alleged in their
pleadings. It is undisputed that the Petitioner was a REGULAR EMPLOYEE of the
respondents since 2010. Being a regular employee, Petitioner is therefore entitled to
SECURITY OF TENURE as enshrined in the Constitution and protected by law. In
the case at bar, it is clear that the Petitioner was CONSTRUCTIVELY DISMISSED
by the respondents after she was subjected by the respondents to CONSTANT
HARASSMENT, BULLYING, VERBAL ABUSE, THREATS, NUMEROUS
UNFOUNDED DISCIPLINARY ACTIONS which culminated to her DEMOTION and
thereafter being PROHIBITED FROM ENTERING COMPANY PREMISES. All of
these acts committed by the respondents against the Petitioner clearly made her
continued employment IMPOSSIBLE, leaving the Petitioner with no other choice but
to consider herself terminated by the respondents.

Her NIGHTMARE began when she was transferred to a NEW account (FDC)
in August 2013. There, she began experiencing various forms of THREATS and
INTIMIDATIONS from her NEW SUPERIORS, culminating to her being DEMOTED
and REMOVED from the FDC account, and thereafter being PREVENTED from
entering company premises. As told by the Petitioner:

1. October 5, 2013 - I was summoned by Manager Mark Ferdinand Leoncio

xxx. He was very FURIOUS and made the following statements to me:
"ALAM MO BANG BADTRIP AKO SAYO, AT PAG BADTRIP AKO SA
TAO, SINASABI KO" "KAPAG NAHANAPAN KITA NG BUTAS,
SISIGURADUHIN KONG SUSUNUGIN KITA!" "I AM NOT
THREATENING YOU! TANDAAN MO YAN!"

2. Mr. Leoncio REPRIMANDED me for an office violation of alleged sleeping

while on duty xxx

3. October 8, 2013 – xxx, I was issued a ANOTHER company violation:

Breach of company policy usage of cellphone inside a PCI compliant
workplace. Please see attachment for my response against the violation.

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 4. October 9, 2013 -I was asked by Dahlia Romana to have a conversation
with Senior Operations Manager Francis Edward Ayala xxx. While
pointing his finger at my face, he shouted: ”KAPAG KINAKAUSAP KITA
TUMINGIN KA SA AKIN!” “TUMINGIN KA SA AKIN AT KINAKAUSAP
KITA!” “ALAM MO BA BAKIT AKO DISAPPOINTED SAYO? KASE IKAW
ANG HIGHEST PAID COACH DITO, ALAM MO BA YUN? GUSTO KO
LANG SULITIN BINABAYAD KO SAYO!”xxx

5. October 16, 2013 –An administrative Hearing was conducted at the

Ground Floor of of Sitel Building where I was CONSTANTLY HARASSED
verbally by Mr. Ayala. He even told me to get a “lawyer” since according
to him my company violations were very serious.

6. October 19, 2013- Ms. Dahlia Romana filed an incident report against me
for alleged “RUMOR MONGERING”.

7. November 5,2013 - I received another Corrective Action Form from Mark

Ferdinand Leoncio and Francis Edward Ayala, this time accusing me of
the following VIOLATION: AGAINST GOOD CONDUCT AND BEHAVIOR-
Personal Demeanor

8. November 7, 2013 - I was issued a SUSPENSION for 5 days for Breach

of company policy: Usage of Cellular Phone inside a PCI Compliant
workplace by Mark Leoncio and Francis Edward Ayala

9. November 15, 2013 - My COMPUTER was REMOVED from my desk

upon the order of Francis Edward Ayala without notifying me ahead of
time. With this, I was effectively DEMOTED from Training Leader
(Supervisory lever) to a regular AGENT.

10. November 19, 2013 – Dahlia Romana, requested for a formal meeting
with me together with a company representative to complain about alleged
DISRESPECT I committed against her.

11. November 25, 2013- I was REMOVED from FDC account by Ms. Ivy
Gamban, HR Manager, and was given a Trainee Evaluation Form.

12. November 26, 2013 – All of my security badges were DISABLED by the
respondents and so I was no longer allowed to enter the company
premises. Likewise, respondents’ SECURITY PERSONNEL
PROHIBITED ME FROM ENTERING THE SITEL BUILDING.

13. December 6, 2013 when I went to the company office to inquire about the
status of my employment, Francis Edward Ayala saw me and told me:
“HOY! ANONG GINAGAWA MO PA DITO!”

After her unjust dismissal on November 26, 2013, Petitioner tried her best to
contact the respondents but to no avail. All her text messages to her superiors and

11
the Human Resources Department were not answered. She was not approached or
contacted by any personnel of the respondents by any means. There was no order
given to her by the respondents for her to return to work. CLEARLY, Petitioner had
no other recourse but to consider her employment as TERMINATED by the
respondents and to file this complaint for dismissal.

During the hearings for mediation and conciliation before the Honorable
Arbiter, private respondents NEVER DENIED that the Petitioner was already
terminated from employment. They even accused her of committing fraud during her
employment with the company. NO OFFER WAS MADE BY THE RESPONDENTS
FOR HER TO RETURN TO WORK. Such actions constitute JUDICIAL
ADMISSIONS as the same were made by parties in the pleadings, or in the course
of the trial or other proceedings in the same case are conclusive and so does not
require further evidence to prove them. These admissions CANNOT be contradicted
unless previously shown to have been made through palpable mistake or that no
such admission was made. (Damasco v. NLRC, 400 Phil. 568, 586 (2000), citing
Philippine American General Insurance Inc. v. Sweet Lines, Inc., G.R. No. 87434,
August 5, 1992, 212 SCRA 194).

In their Position Paper, private respondents even claimed that “she was
temporarily ordered to the HR Office.” (page 11 thereof) THIS IS A LIE. Such BARE
ALLEGATIONS have no merit. Where is the proof that the Petitioner was “ordered”
to return to the HR Office? NONE. Petitioner CATEGORICALLY DENIES that the
respondents “ordered” her to report for work at the HR Office. ABSOLUTELY NO
COMMUNICATION WAS MADE TO THE PETITIONER FROM NOVEMBER 26,
2013 TO JANUARY 8, 2014.

At any rate, without any evidence, such BARE ALLEGATIONS are clearly
BEREFT of any merit. As CONSISTENTLY ruled by the Supreme Court.: “Certainly,
elementary as a hornbook doctrine is the evidentiary rule in our jurisdiction that bare
allegations do not constitute evidence at all, but the same are self-serving at best
(Tuason v. Court of Appeals 241 SCRA 295 (1995); “Bare allegations,
unsubstantiated by evidence are not equivalent to proof, under the Rules of Court”
(Manzano v. Perez 362 SCRA 430 (2001);

As an AFTERTHOUGHT and to correct the error of their ways, the private

respondents then CHARGED the Petitioner for allegedly violating respondents
“lawful” order when she failed to report to the HR Office, akin to
INSUBORDINATION. (See Annex 18 of respondents’ Position Paper.). To reiterate,
NO such order or instruction was given to the Petitioner. Adding insult to injury,
when she tried to report for work, Francis Edward Ayala saw her and shouted: “HOY!
ANONG GINAGAWA MO PA DITO!”.

Finally, the constant ABUSES which she received from the respondents took
a SERIOUS TOLL IN HER PHYSICAL AND MENTAL HEALTH as stated in her
email to the respondents (Annex E of Petitioner's Position Paper.) From all the
foregoing, it is clear that the Petitioner was CONSTRUCTIVELY DISMISSED by the
respondents contrary to the findings of Honorable NLRC.

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 As ruled by the High Court: “Constructive dismissal exists where there is
cessation of work because "continued employment is rendered impossible,
unreasonable or unlikely, as an offer involving a demotion in rank or a diminution in
pay" and other benefits. Aptly called a dismissal in disguise or an act amounting to
dismissal but made to appear as if it were not, constructive dismissal may, likewise,
exist if an act of clear discrimination, insensibility, or disdain by an employer
becomes so unbearable on the part of the employee that it could foreclose any
choice by him except to forego his continued employment. (MORALES VS.
HARBOUR CENTRE PORT TERMINAL, INC., G.R. No. 174208, January 25, 2012;
citing many cases) “The test of constructive dismissal is whether a reasonable
person in the employee’s position would have felt compelled to give up his position
under the circumstances. Based on the factual considerations in the present case,
we hold that the hostile and unreasonable working conditions of the petitioner
justified the finding of the NLRC and the CA that respondent was constructively
dismissed.” (Philippine Veterans Bank vs. NLRC, G.R. No. 188882, March 30, 2010)

PETITIONER ENTITLED TO REINSTATEMENT PLUS FULL BACKWAGES

As a direct consequence of Petitioner’s unjust termination from service

without due process of law, the Petitioner is entitled to reinstatement with full back
wages and salaries. Back wages represent the compensation which an employee
could have earned but was not collected because of the unjust dismissal. In general,
it is granted on ground of equity for earnings lost due to illegally effected termination.

As clearly stated under Article 279 of the Labor Code, “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 back wages inclusive of allowance,
and to his other benefits of their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual reinstatement.”

Thus, an illegally dismissed employee is entitled to two reliefs: backwages

and reinstatement. The two reliefs provided are separate and distinct. In instances
where reinstatement is no longer feasible because of strained relations between the
employee and the employer, separation pay is granted. In effect, an illegally
dismissed employee is entitled to either reinstatement, if viable, or separation pay if
reinstatement is no longer viable, and backwages.The normal consequences of
respondents’ illegal dismissal, then, are reinstatement without loss of seniority rights,
and payment of backwages computed from the time compensation was withheld up
to the date of actual reinstatement. Where reinstatement is no longer viable as an
option, separation pay equivalent to one (1) month salary for every year of service
should be awarded as an alternative. The payment of separation pay is in addition
to payment of backwages.(MACASERO vs. SOUTHERN INDUSTRIAL GASES
PHILIPPINES (G.R. No. 178524, January 30, 2009)

PRIVATE RESPONDENTS LIABLE FOR DAMAGES AND ATTORNEY’S FEES

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 In illegal dismissal cases, moral and exemplary damages are awarded to
compensate the affected employee for diverse injuries such as mental anguish,
besmirched reputation, wounded feeling and social humiliation suffered as a
consequence of the termination.

In the case at bar, respondents’ act of preventing the Petitioner from entering
company premises without a just cause is proof of bad faith on their part.
Respondents’ acts of constantly harassing and verbally abusing the Petitioner took a
serious toll on her physical and mental health necessitating medical treatment. As a
result of her unjust dismissal, the Petitioner suffered severe mental anguish and
sleepless nights on account of the sudden loss of income to sustain his family; and
also suffered besmirched reputation and wounded feelings due to the sudden
termination of her employment by the respondents. Clearly, the respondents are in
bad faith for their wanton disregard of the law and are, therefore, liable for moral and
exemplary damages.

"The series of discriminatory and oppressive acts of respondent xxx against

(the Petitioner) invariably makes respondent liable for moral damages under Art.
1701, which prohibits acts of capital or labor against each other, and Art. 21 on
human relations in relation to Art. 2219 No. 10 and Art. 2220, all of the Civil Code."
(SIBAL vs.NOTRE DAME, NLRC (G.R. No. 75093, February 23, 1990)

Finally, in the pursuit of justice, the Petitioner was forced to secure the
services of counsel, thereby incurring legal fees in the process. Accordingly,
respondents should also be ordered to pay attorney’s fees equal to ten percent of
the amount of wages recovered as provided for in Art. 111 of the Labor Code.

Settled is the rule that in actions for recovery of wages, or where an employee
was forced to litigate and, thus, incur expenses to protect his rights and interests, a
monetary award by way of attorney’s fees is justifiable under Article 111 of the Labor
Code; Section 8, Rule VIII, Book III of its Implementing Rules; and paragraph 7,
Article 2208 of the Civil Code. 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. (Kaisahan vs. Manila Water Company,G.R. NO. 174179,
November 16, 2011)

In closing, the High Court has ruled that "in carrying out and interpreting the
Labor Code's provisions and implementing regulations, THE EMPLOYEE'S
WELFARE SHOULD BE THE PRIMARY AND PARAMOUNT CONSIDERATION.
This kind of interpretation gives meaning and substance to the liberal and
compassionate spirit of the law as embodied in Article 4 of the Labor Code (which
provides that "[a]ll doubts in the implementation and interpretation of the provisions
of [the Labor Code], including its implementing rules and regulations, shall be
resolved in favor of labor") and Article 1702 of the Civil Code (which provides that
"[i]n case of doubt, all labor legislation and all labor contracts shall be construed in
favor of the safety and decent living for the laborer”) (PCL Shipping Philippines, Inc.
v. NLRC, G.R. No. 153031, December 14, 2006).

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 PRAYER

WHEREFORE, premises considered, it is respectfully prayed of the

Honorable Court of Appeals to render judgment as follows:
1. After due consideration, declare the assailed decision/resolution of the
public respondent as null and void for being issued with grave abuse of
discretion amounting to lack or excess of jurisdiction;
2. To declare the dismissal of the Petitioner as ILLEGAL, the same having
been effected without a just cause and without due process;
3. To order the private respondents to pay the Petitioner her separation pay;
4. To order the private respondents SOLIDARILY liable to pay the Petitioner
her FULLBACK WAGES, inclusive of allowances and other benefits to be
computed from the time compensation was withheld from her up to her
actual reinstatement or finality of this case;
5. To pay the Petitioner moral and exemplary damages plus Attorney’s Fees.

Other just and equitable remedies are likewise prayed for.

Quezon City, March 6, 2015

ATTY. PEARLITO B. CAMPANILLA

Suite B 2nd Floor Overland Park Bldg.,
No. 245 Banawe St. cor. Quezon Ave., Quezon City
Roll 37522 / IBP Life 010564 2-3-12 Pasig
PTR 0560706 1-5-15 QC / MCLE IV - 0018064

COPY FURNISHED:

BY PERSONAL DELIVERY
NATIONAL LABOR RELATIONS COMMISSION
SECOND DIVISION
PPSTA BLDG., Banawe St., Quezon City.

BY REGISTERED MAIL:
ATTY. JOHN GERARDO F. C. VILLACARLOS
COUNSEL FOR PRIVATE RESPONDENTS
UNIT 707, 7TH FLOOR, SOUTH CENTER TOWER,
2206 MARKET ST., MADRIGAL BUSINESS PARK
ALABANG, MUNTINLUPA CITY

EXPLANATION: Kindly note that a copy of this pleading was sent to the above-named party/parties
by registered mail or courier service due to severe time constraints and lack of personnel to effect
personal service.

ATTY. PEARLITO B. CAMPANILLA

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