Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Arbitration Branch
Quezon City

ALVIN SENECA BAUTISTA

Complainant,

- versus- LRC NCR CASE NO.

(M) 10- 15359-17

TUTELA MARINE INC. / VEVENCIO L.

TUGANO, JR., ETC.
Respondents.
x-----------------------------------------------x

RESPONDENTS’ POSITION PAPER

RESPONDENT, by counsel, to the Honorable Labor Arbiter
respectfully states that:

I
PARTIES

1. Respondent Tutela Marine Inc.,(respondent Tutela) is operated by

respondent Vevencio L. Tugano, Jr.(respondent Tugano) as its President, of
legal age, Filipino, married, with post office address at 4F, MJ Bldg., 2014 San
Marcelino St. Brgy. 722, Malate, Manila. Respondent is represented by
undersigned counsel to whom summons, notices, and other legal processes
may be served.

2. Complainant Alvin Seneca Bautista may be served with summons,

notices, and other legal processes at 19 Marang St., Proj. 2 Brgy. Quirino 2A
Quezon City.

II
NATURE OF THE CASE
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3. This is a case for 1) illegal dismissal and 2) money claims: payment of

salaries/wages for the unexpired portion of the first contract, failure to deploy
upon the second contract, moral and exemplary damages and attorneys fees.
III
FACTS OF THE CASE

4. Complainant was hired by respondent Tutela as chief cook and

assigned him to its manned vessel M/V Thorco Ranger.

5. On March 15, 2017, Capt. Kehayov issued a warning letter to

complainant in relation to his performance at work aboard said vessel. The
body thereof states:

“This warning letter is presented to ship’s cook Mr.

BAUTISTA Alvin Seneca due to his low performance onboard.

Observing your job performance I, Capt. Kehayov, hand

this Warning Letter to you, Mr. BAUTISTA Alvin Seneca, and I
expect the below listed points to be improved/fulfilled in the next
two weeks otherwise I will proceed with your dismissal.

1) Optimizing your style of cooking in order to reduce

consumption of ship’s provisions to value 8.5 USD per person
per day as per Company’s rule;
2) Following the Shipboard Work Schedule;
3) Your attitude against Senior Officers;
4) Preparing of bread at least once every two weeks;
5) Cleaning of provisions stores, reefer chambers and
lobby to satisfactory level.

Master: SIGNED
Captain Ivan KEHAYOV

Witnessed by: Acknowledged by

Chief Officer: SIGNED Cook: SIGNED

NOVOSELOV Aleksei BAUTISTA Alvin Seneca

Chief Engineer: SIGNED

BOLOGA Dumitri”
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Attached as Annex “1” is a copy of the Warning Letter dated March 15,
2017.

6. Capt. Kehayov prepared a Crew Performance Report since then and

issued it on March 31, 2017. Complainant was given and unsatisfactory rating
in his work performance as chief cook.

Attached as Annex “2” is a copy of the Crew Performance Report

dated March 31, 2017.

7. Based on said report, a dismissal letter was prepared on the same day
and given to complainant. The body thereof states:

“This dismissal letter is presented to ship’s cook Mr.

BAUTISTA Alvin Seneca as follow-up to Warning letter
presented to him on 15-Mar-17.

Cook Mr. BAUTISTA Alvin Seneca failed to improve his

performance on board and fulfill below listed points for the
period given in the warning letter:

1) Optimizing your style of cooking in order to reduce

consumption of ship’s provisions to value of 8.5 USD per person
per day as per Company’s rule;
2) Following the Shipboard Work Schedule;
3) -fulfilled;
4) Preparing of bread at least once every two weeks;
5) Cleaning of provisions stores, reefer chambers and lobby
to satisfactory level.

Based on above and HK CBA, para 15.3(b), I, Capt. Ivan

Kehayov, will advise your Manning Agency Tutela Marine Inc.
and Enzian Ship Management AG to terminate your contract of
employment and arrange for your repatriation.

Master: SIGNED
Captain Ivan KEHAYOV

Witnessed by: Acknowledged by

Chief Officer: SIGNED Cook: refused to sign

NOVOSELOV Aleksei BAUTISTA Alvin Seneca

Chief Engineer: SIGNED

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BOLOGA Dumitru”

Attached as Annex “3” is a copy of the Dismissal Letter dated March

31, 2017.

7. On April 19, 2017, complainant was set down from M/V Thorco
Ranger and repatriated back to the Philippines.

8. Respondent Tutela gave complainant another chance. Respondent

proposed that it will assign complainant to other manned vessels and found
one which is to disembark tentatively on July or August 2017. (WHAT
VESSEL?)(WHEN DID IT SAIL AWAY?) Complainant agreed with
respondent and submitted all necessary documents, including his travel
documents to the latter.

9. However, complainant did not board said vessel because the

owner(WHO?) thereof preferred to engage crew of other nationalities.

10. Despite the refusal of the owner, respondent Tutela still looked for
another vessel to assign complainant. It found no other vessel than (WHAT
SHIP?), which lacked a chief cook. However, the nearest date of departure
thereof will be on February 2018.

11. On August 23, 2017, complainant who wanted to sail forth

immediately, filed a complaint with the POEA against respondent Tutela for
withholding his travel documents.

12. Said complaint surprised respondent Tutela which tried its best to
look for available work for complainant. It complied with his demands and
returned his travel documents.

13. Despite the good faith extended by respondent Tutela, herein

complainant, in utter bad faith, filed the instant complaint for illegal dismissal
and monetary claims to the damage and prejudice of herein respondents.
Hence, this position paper.

IV
ISSUES

WHETHER OR NOT COMPLAINANT WAS

ILLEGALLY DISMISSED WHEN HE WAS ON BOARD
M/V THORCO RANGER;
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WHETHER OR NOT COMPLAINANT IS

ENTITLED TO HIS MONEY CLAIMS UPON THE
UNEXPIRED PORTION OF HIS EMPLOYMENT AS
CHIEF COOK ABOARD M/V THORCO RANGER.

WHETHER OR NOT COMPLAINANT IS

ENTITLED TO HIS MONEY CLAIMS UPON THE
FAILURE TO DEPLOY ON HIS SECOND CONTRACT.

WHETHER OR NOT COMPLAINANT IS

ENTITLED TO DAMAGES.

V
ARGUMENTS

-A-
COMPLAINANT WAS NOT
ILLEGALLY DISMISSED

14. In his first contract of employment, complainant was terminated for

just cause based on gross and habitual neglect of duty.

15. In Mitsubishi Motors Philippine Corporation vs. Chrysler Philippines

Labor Union1 the Supreme Court held that an unsatisfactory rating can be a
just cause for dismissal only if it amounts to gross and habitual neglect of duties.
Gross negligence has been defined to be the want or absence of even slight
care or diligence as to amount to a reckless disregard of the safety of person or
property. It evinces a thoughtless disregard of consequences without exerting
any effort to avoid them.

16. As the chief cook of M/V Thorco Ranger, complainant caters to the
daily provisions and sustenance of its officers and crew. These people belong
to different nationalities and cultures. Their distinct diet must be given thought
by the chief cook.

17. Here, complainant never even tried to improve his performance as a

chief cook. As shown in the Dismissal Letter2, he has only shown improvement

1 G.R. No. 148738 July 29, 2004

2 Annex “3”
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with regard to his attitude with senior officers, but his overall performance as a
cook is unsatisfactory as shown in the Crew Performance Report.3

18. Hence, complainant was not illegally dismissed with regard to his
First Contract.

23. Respondent was

-B-

COMPLAINANT IS NOT ENTITLED TO HIS MONEY CLAIMS

On The Unexpired Portion

of The First Contract

16. Complainant claims non-payment of his salary/wage for the

unexpired portion of the contract three (3) months per year.

17 Section 7, of Republic Act No. 10022, amending Section 10 of

Republic Act No. 8042 states:

“xxx In case of termination of overseas employment without just, valid

or authorized cause as defined by law or contract, or any unauthorized
deductions from the migrant worker's salary, the worker shall be entitled to the
full reimbursement if his placement fee and the deductions made with interest
at twelve percent (12%) per annum, plus his salaries for the unexpired portion
of his employment contract or for three (3) months for every year of the
unexpired term, whichever is less. xxx”
- Emphasis ours.

19. As discussed earlier, complainant was validly terminated from

employment for just cause under Article 297 of the Labor Code. Therefore, he
may not recover said salary for the unexpired portion of his employment
contract.
On The Failure To Deploy
Upon The Second Contract

3 Annex “2”
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20. As regards his Second Contract with respondent Tutela, complainant

is not entitled to his money claims for the failure to deploy him abroad, because
complainant was to be deployed on February 2018, which has yet to pass.

21. Note that these events were solely the fault of complainant. Had he
been diligent at work and improved his work performance, he would not have
any problems with maintaining his work.

22. If complainant is allowed to recover upon the alleged failure to

deploy him for the second contract which has yet to pass, then it is tantamount
to giving him an advance payment for services yet to be rendered in violation
of the doctrine of NO WORK, NO PAY and to the greater prejudice of
respondent Tutela.

23. In the case of _____________, while labor laws are created to

protect the interest of labor, the same must not be oppressive to capital.

On Moral and Exemplary Damages

24. In Quadra vs. Court of Appeals, 4 the Supreme Court held that a
dismissed employee is entitled to moral damages when the dismissal is attended
by bad faith or fraud or constitutes an act oppressive to labor, or is done in a
manner contrary to good morals, good customs or public policy. Exemplary
damages may be awarded if the dismissal is effected in a wanton, oppressive or
malevolent manner.

25. In Nazareno, et al. vs. City of Dumaguete,5 bad faith, under the law,
does not simply connote bad judgment or negligence. It imports a dishonest
purpose or some moral obliquity and conscious doing of a wrong, or a breach
of a known duty through some motive or interest or ill will that partakes of the
nature of fraud.

26. Here, respondents did not act in bad faith. Complainant was in the
unfortunate situation that the nearest date that he may embark was February
2018. This situation was caused by him in the first place had he been diligent
with his work in his first contract.

On Attorney’s Fees

4 521 Phil. 218, 223-224

5 607 Phil 768, 804
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27. Under Art. 2208 of the Civil Code, in the absence of stipulation,
attorney’s fees and expenses of litigation, other than judicial costs, cannot be
recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant’s act or omission has compelled the
plaintiff to litigate with third persons or to incur expenses to
protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding
against the plaintiff;
(5) Where the defendant acted ingross and evident bad faith in
refusing to satisfy the plaintiff’s plainly valid, just and demandable
claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers,
laborers and skilled workers;
(8) In actions for indemnity under workmen’s compensation and
employer’s liability laws;
(9) In a separate civil action to recover civil liability arising from a
crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable
that attorney’s fees and expenses of litigation should be recovered.

28. Complainant is not entitled to attorney’s fees. Complainant who left

respondent Tutela on his own whim could not have been forced to litigate.

VI
RESERVATION

29. Respondents expressly reserve their right to adduce additional

documentary evidence in support of their claims, whenever necessary and
available under the circumstances.
VII
PRAYER

WHEREFORE, respondents respectfully pray that the instant

Complaint be DISMISSED for utter lack of merit.

Other reliefs just and equitable are likewise prayed for.

Pasig City for Quezon City, Philippines, December 13, 2017.
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SARMIENTO SARMIENTO
RUGA CARINGAL LAW FIRM
Counsel for the Respondents
Units 1601, 1641-1642, City & Land
Mega Plaza, ADB Ave., cor. Garnet
Rd., Ortigas Center, Pasig City
Tel. No. (02) 687-6197
By:

NOEL ALLEN R. BOSE

PTR No. 4750342 - 6/7/2017 – Q.C.
IBP No. 002649 - 5/13/2017 – Albay
Roll No. 69593
Pending MCLE Compliance
Admitted to Bar on June 1, 2017

VERIFICATION

I, Vevencio L. Tugano, Jr., of legal age, Filipino, and with postal

address at 2/F, MJ Building, 2014 San Marcelino St. Brgy. 722, Malate, Manila
NCR 1004 under oath, hereby depose and state that:

1. I am the representative of respondent Tutela Marine, Inc. and also a

respondent in the above-entitled complaint; and,

2. I have caused the preparation of, and have read the foregoing
Respondent’s Position Paper and confirm that the factual allegations therein
are true and correct of my own personal knowledge and/or verifiable
information or authentic records.

IN WITNESS WHEREOF, I have hereunto set my hands this 13th

day of December, 2017 in Pasig City.

VEVENCIO L. TUGANO JR.

SUBSCRIBED AND SWORN to before me in Pasig City this 13th

day of December 2017 after affiant exhibited his TIN No. 107-082-056 as
competent proof of his true identity.

Notary Public

Doc. No. _____;

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Page No. _____;

Book No._____;
Series of 2017.

Copy Furnished:

ALVIN SENECA BAUTISTA

19 Marang St., Proj. 2 Brgy.
Quirino 2A Quezon City