Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. 09
Zamboanga City

“A”,
Complainant, NLRC CASE NO.
- versus - RAB-12345
“B”, ET. AL.,
Respondents.

POSITION PAPER
COME NOW Respondents “B” et.al., represented by its President, “C”,
through Counsel, before the Honorable Labor Arbiter, most respectfully submit
this Position Paper in compliance with the verbal order of the Honorable Labor
Arbiter during the preliminary conference on the amended complaint held on
04 January 2012 setting the simultaneous submission of parties’ position papers
on 06 February 2012.

PRELIMINARY STATEMENT

1. Respondent “B”, a duly organized and existing Corporation under the

laws of the Republic of the Philippines and a reputable higher
education institution in Zamboanga City.
2. Respondent “C” is the President/CEO and is impleaded herein in his
official capacity as such.
3. Complainant, “A”, is a graduate of “B” with the degree of B.S.
Respiratory Therapy in SY 2005-2006.
4. Upon graduation, “A” still had a balance of TWENTY ONE
THOUSAND FIVE HUNDRED THIRTY EIGHT and 84/100
(P21,538.84) for unpaid tuition fees and other school fees. On any
remaining balance after two years from graduation, a 12% interest per
annum shall be imposed.1
5. In the second semester of SY 2008-2009, “B” hired “A”, as teacher in
the School of Allied Medicine, Respiratory Therapy department with a
probationary rank. His contract was impliedly renewed in the
subsequent semesters up to Summer of 2011.
6. On 06 November 2009, “A” applied2 for and was granted Master’s
Degree scholarship3 under the university’s Personnel Development
Fund Program.4
7. In January 2011, “A” also applied and was granted the easy payment
plan to settle his college back accounts with “B” through salary
deductions. As of that day, his outstanding account was P 25,092.82.5
From January 2011 to May 2011, he was deducted P500.00 per
payday or a total of P 5,000.00. To date, his outstanding balance to
“B” amounts to TWENTY TWO THOUSAND NINE HUNDRED EIGHT
and 10/100 (P22,908.10).6

1
Provision 8.5.2 par. 8, Student Handbook and in the Affirmation Pledge of Student’s Enrollment Form,
Annexes “1”,“1-A” and “2”, “2-A”.
2
Application for Scholarship Grant executed by Complainant, Annex “3”.
3
Scholarship Contract, approved on 06 November 2009, Annex “4”.
4
Manual for Personnel Development Fund, Annex “5” and “5-A”.
5
Application for Salary Deduction, Annex “6”.
6
Account Clearance Form, Annex “6-A” and “6-A-1”.
Original 1
Position Paper for Respondents; NLRC Case No.: RAB-IX-12345
 8. During the first semester of SY 2010-2011, “A”’s frequent
absenteeism was brought to the attention of management through
students’ complaints directly to “C”. This was brought to “A”’s
attention verbally, through the coordination of “C”, the VPAA and the
Director of the Department, who informed the Program Chair.7 In an
office meeting, the program chair apprised “A” a propos the
complaints of students. “A” reasoned out that because of his graduate
studies, he had a hard time meeting his classes on time or none at all. 8
9. Management, finding his reason understandable but inexcusable, gave
“A” another chance with a warning that if he continues to incur
unauthorized absences/tardiness beyond the allowable limit, it could
be a ground for his termination.
10. Towards the end of summer 2011, “B” through the HR Director
assessed “A”’s performance. Still the same problem subsisted. “A”’s
absenteeism even worsened.
11. Due to his continued absences, management decided “to hold the
employment/suspend renewal of his probationary contract,” embodied
in a memorandum addressed to the Director of the Department.9 The
latter informed the program chair of management’s decision, who in
turn notified “A” and directed him to see the HR Director with regard
his employment. During such meeting sometime on the third week of
May 2011, “A” was served a copy of the memorandum which took
effect by the end of the summer classes or on 09 June 2011. He did
not complain as in fact he accepted it and never returned to the work
site after the above stated date.
12. On 02 August 2011, “A” sent a clarificatory letter to “C”, indicating
therein that he was a FORMER faculty member of “B” and that he was
thankful10 to the University for the scholarship he enjoyed and
knowledge earned. In the same letter, “A” sought to be clarified why
he should pay for all the expenses incurred in his master’s degree
program. He claimed that such provision is not specified in the
scholarship contract he signed.
13. On the contrary, provision no.5 of the Scholarship Contract provides
for total refund of expenses for failure of grantee to complete his
course. Since, “A” failed to complete his scholarship due to his fault,
management demanded that he refund all the expenses for his
scholarship, amounting to ONE HUNDRED ONE THOUSAND THREE
HUNDRED SEVENTY EIGHT and 96/100 or P101,378.96.11
14. To date, his total outstanding account with “B” amounts to
P124,287.06, representing his unpaid student’s back account and
scholarship refund.
15. This could have triggered “A” to claim illegal dismissal belatedly on
21 November 2011 or six months (6) after his termination, to avoid
paying his lawful indebtedness to the school.

ISSUES

I. COMPLAINANT WAS NOT ILLEGALLY DISMISSED, HENCE

NOT ENTITLED TO SEPARATION PAY, BACKWAGES, MORAL
AND EXEMPLARY DAMAGES and ATTORNEY’S FEES.

7
Affidavits of Respondent “C”, VP-Acad, Director and Program Chair, discussing in detail how Complainant was apprised of the
complaints of students, the initial and final decision of “B”, etc.; attached as Annexes “7”, “8”, “9” and “10”, respectively.
8
Complainant’s DTRs from 16 June 2010 to 09 June 2011, as Annexes “11” to “11- S-3”.
9
Memo No.: 20110518-A addressed to the program chair from the Dir. of Human Resource dated 16 May 2011, Annex “12”.
10
“A”’s letter addressed to the “C” dated 02 August 2011, Annex “13”.
11
Summary of Expenses of “A”, Annex “14”.
Original 2
Position Paper for Respondents; NLRC Case No.: RAB-IX-12345
 II. SCHOLARSHIP CONTRACT WAS TERMINATED DUE TO
COMPLAINANT’S FAULT, HENCE RESPONDENTS CANNOT BE
CHARGED FOR BREACH OF CONTRACT.

DISCUSSION
COMPLAINANT WAS NOT ILLEGALLY DISMISSED, HENCE NOT ENTITLED
TO SEPARATION PAY, BACKWAGES, MORAL AND EXEMPLARY DAMAGES
and ATTORNEY’S FEES.

16. The above narrated facts laid the basis for suspension of the renewal
of contract of “A”, which is gross and habitual absenteeism. “B”’s act
is embodied in the employment contract itself. It clearly states that
employment can be terminated earlier for a just and authorized
cause(s) under the Faculty Manual, Conduct Appropriate for a
Responsible Employee (CARE) Manual and/or those prescribed under
the law.12
17. The “B’s CARE Manual13 provides the allowable tardiness and
unauthorized absences limit and its corresponding sanctions, to wit:
FOR TEACHING Per CEO Memo. Dated August 26, 2008
1.1.7 Tardiness in reporting to Work (per cut- * 1 unexcused tardiness – No sanction
off) unless excused or authorized by the * 2 unexcused tardiness – verbal reprimand
Dean/Department Head. / Under time (per cut- * 3 unexcused tardiness – written reprimand
off) * 4 unexcused tardiness – de-loading of 3
units next semester
* 5 unexcused tardiness – termination after
the current semester
* 6 unexcused tardiness – immediate relief.
1.1.8 Unauthorized absences from work * 1 unexcused absence – verbal inquiry
without prior notice or Absences without Official * 2 unexcused absences – verbal warning
Leave (AWOL) * 3 unexcused absences – written reprimand
Per Semester Limits: * 4 unexcused absences – deloading of (3)
 Not more than 1 no fault tardiness per units next semester
payroll period * 5 unexcused absences – deloading of (6)
 Not more than 2 verbal reprimands with units next semester
a frequency of not more than one (1) per * 7 unexcused absences – immediate relief
month
 Not more than 2 written reprimands with
a frequency of not more than one (1) per
month
 Not more than 2 deloading with a
frequency of not more than 1 per month
 A faculty therefore may not incur
more than 15 instances of tardiness
per semester.

The Faculty Manual14 provides:

“Section 3. xxx A faculty staff is said to have incurred an
unauthorized absence or tardiness when such is without the
proper excuse or permission of the Dean or immediate superior.
The recording of unexcused absences and tardiness
accumulates per payroll period. The accumulation is substantial
to establish habitual frequencies of negligence, which in worst
case may terminate a faculty for gross negligence in
reporting for duty. xxx”

The Faculty Manual provides the same Schedule of Sanctions

for Unauthorized Absences and Tardiness as that of the Care Manual.

12
Art. 1, Par. 2, Teacher’s Contract, Annexes “15” and “15-A”.
13
Prov. No. 6, Offenses and Penalties, item no. 1.1.7 and 1.1.8, Annexes “16”, “16-A” and “16-B”.
14
Art. V, Sec. 3, Annex “17” and “17-A”
Original 3
Position Paper for Respondents; NLRC Case No.: RAB-IX-12345
 18. Hereunder, is a tabular Summary of Absences/Tardiness of
Complainant showing his gross violation of the CARE Manual and
Faculty Manual, to wit;

SY NO. OF # of INSTANCES TOTAL # OF

2010-2011 DATES COVERED HOURS TARDY ABSENT HOURS
TARDY TARDY/ABSENT
ABSENT
July 1-15, 2010 0:07 2 tardy 3 absences 8:07
8:00
July 16-31, 2010 0:04 2 tardy 7 absences 14:52
14:48
August 1-15, 2010 0:12 1 tardy 2 absences 5:26
5:14
August 16-31, 2010 0:03 1 tardy 6 absences 20:33
20:30
September 1-15, 0:09 1 tardy 1 absence 3:09
2010 3:00
September 16-30, 0:03 1 tardy 1 absence 3:03
2010 3:00
End of 1st SEM October 16-31, 2010 0:34 2 tardy 2 absences 6:04
5:30

SUB-TOTAL 1:12 10 Tardy 22 Absences 61:14 HRS.

60:02
December 1-15, 2010 :45 5 tardy 2 absences 2:45
2:00
December 16-31, :18 4 tardy 1 absence 3:18
2010 3:00
January 1-15, 2011 :18 3 tardy 0 absence :18
0:00
January 16-31, 2011 2:18 8 tardy 5 absences 16:18
14:00
February 1-15, 2011 4:40 8 tardy 4 absences 9:10
4:30
February 16-28, 1:29 4 tardy 1 absence 9:29
2011 8:00
March 1-15, 2011 2:56 7 tardy 8 absences 22:26
19:30
March 16-31, 2011 2:59 5 tardy 2 absences 3:59
1:00
End of 2nd April 1-15, 2011 2:02 7 tardy 2 absences 4:02
SEM 2:00

SUB-TOTAL 17:45 51 Tardy 25 Absences 71:45 HRS.

54:00
May 1-15, 2011 1:22 3 tardy 4 absences 17:22
16:00
May 16-31, 2011 :45 3 tardy 1 absence 4:45
4:00
End of SUM. June 1-09, 2011 2:18 4 tardy 2 absences 10:18
8:00

SUB-TOTAL 4:25 10 Tardy 7 Absences 32:25 HRS.

28:00

TOTAL 23:22 71 Tardy 54 Absences 165:24 HRS.

142:02

And, this graph presentation;

Original 4
Position Paper for Respondents; NLRC Case No.: RAB-IX-12345
 No. of Hours Absent/Tardy
25
20
15 No. of
10 Hours
5 Absent
0

19. The table shows that “A” incurred a total of 165.24 hours
absences/tardiness covering 71 instances of tardiness and
54 instances of absence. Whereas a consistent escalating number of
absences/tardiness for the months of January to March 2011 can be
seen on the graph. It only dropped on March 16-31 to April 1-15, 2011,
in time for the closing period and summer enrolment. However, by the
first month of summer 2011, he again went into his absence-spree with
a high 17.22 hours absences. These data only proved that “A” is
incorrigible and had no intention to heed the call of management to be
efficient in his class management.
20. “A” cannot claim that management resorted to drastic measures in
suspending the renewal of his contract. As in fact, management gave
him ample time to improve his performance. Had it not, he could have
been validly terminated after the first semester of 2010 after he
incurred a whopping 61.14 hours tardy/absent or 10 tardy/22 absences.
The CARE Manual and Faculty Manual of “B” provide that
“6 unexcused tardiness and 7 unexcused absences will result to immediate
relief.” By the end of the second semester, “A” incurred 51 instances
of tardiness and 25 absences. At this point, “A”again could have been
validly terminated as the CARE Manual and Faculty Manual provide a
limit that “a faculty therefore may not incur more than 15 instances of
tardiness per semester.” But still “B” did not give up its hope on “A”’s
improvement, thus allowed him to teach during the summer period. It
was only after “A”’s relentless tardiness and absenteeism during the
summer period that “B” finally made up its decision.
21. The 165.24 hours absences/tardiness of “A” was grossly inimical to
students’ interests. Management needs to protect the students’
welfare. It cannot allow “A”’s gross negligence of duty to flourish.
Thus, in May 2011, management decided to suspend the renewal of
his contract.
22. The Supreme Court in a recent case ruled that “generally, tardiness and
absenteeism, like abandonment, are a form of neglect of duty.”15 While,
under ART. 282 of the Labor Code, an employer may terminate an
employment for any of the following causes:

xxx
(b) Gross and habitual neglect by the employee of his duties;
xxx
“Neglect of duty, to be a ground for dismissal, must be both gross
and habitual. Gross negligence connotes want of care in the
performance of one’s duties. Habitual neglect implies repeated

15
Agullano vs. Christian Publishing, et. al., G.R. No. 164850, September 25, 2008.
Original 5
Position Paper for Respondents; NLRC Case No.: RAB-IX-12345
 failure to perform one’s duties for a period of time, depending upon
the circumstances.”16

These requisites were attendant to “A”’s work attitude. His

absenteeism was grossly violative of the allowable absences
provided for in the CARE Manual and Faculty Manual of “B”. It was
also habitually committed by “A” for two semesters and one summer
class period.
23.Therefore, management’s action was grounded on a just cause.
Respondents committed NO illegal dismissal. Hence, NO separation
pay and backwages be awarded to “A”. The Supreme Court
reiterated, thus;

“Inasmuch as petitioner's dismissal was for a valid cause, he is

not therefore entitled to any separation pay as embodied in Section 7,
Rule 1, Book VI of the Omnibus Rules Implementing the Labor Code,
which provides that separation from work of an employee for a just
cause does not entitle[d] him to termination or separation pay.”17

Respondents also substantially complied with the twin-notice rule.

The Omnibus Rules Implementing the Labor Code18 provides the
procedure for terminating an employee, viz:

(d) In all cases of termination of employment, the following standards

of due process shall be substantially observed:

For termination of employment based on just causes as defined in

Article 282 of the Labor Code:

(i) A written notice served on the employee specifying the

ground or grounds for termination, and giving said employee
reasonable opportunity within which to explain his side.

(ii) A hearing or conference during which the employee

concerned, with the assistance of counsel if he so desires is
given opportunity to respond to the charge, present his
evidence, or rebut the evidence presented against him.

(iii) A written notice of termination served on the employee,

indicating that upon due consideration of all the circumstances,
grounds have been established to justify his termination. 19

The first written notice requirement was substantially met through

the verbal notice of the program chair, in a meeting with “A”. The
latter was also forewarned that if he continues to neglect his classes, it
can be a ground for his termination.

During such meeting, “A” was given opportunity to present his

side. As in fact his reason, although unacceptable to management,
was considered and he was allowed to teach hoping that he will
improve his performance. This complies with the second requirement
on hearing.

Finding him incorrigible based on his performance in the second

semester and summer classes, management issued a memorandum
suspending the renewal of his contract. It was served upon him during

16
ST. LUKE'S MEDICAL CENTER, INC., et. al vs. NOTARIO, G.R. No. 152166 , October 20, 2010.
17
FLORES vs. NLRC, et. al., G.R. No. 96969 March 2, 1993.
18
Book VI, Rule I, Section 2(d).
19
APARECE vs. J. MARKETING CORPORATION, et. al., G.R. No. 174224, October 17, 2008.
Original 6
Position Paper for Respondents; NLRC Case No.: RAB-IX-12345
 his meeting with the HR Director. This completed management’s
compliance with the twin-notice rule.
24.On the claims for Moral and Exemplary damages, both cannot also be
awarded. The non-renewal of “A”’s contract was based on just cause.
Moral and exemplary damages are awarded only to a person who has
been unduly oppressed, whose rights have been trampled and who
deserves sympathy for the injustice committed upon his person and
rights.
25.In the instant case, it is “B” who stands financially aggrieved, having
allowed him to graduate even with outstanding back accounts;
employing him and allowing him to gradually pay his back accounts;
granting him master’s degree scholarship, among other benefits. What
was only called for from “A” was for him to take his work seriously
alongside his studies. The scholarship grant is not intended to
adversely affect “A”’s performance but rather to improve it.
26.It was “A” who applied for the scholarship and “B” granted it
expecting him to manage his time properly. His resultant inability to so
do, which prejudiced the rights of his students, caused the suspension
of renewal of his contract.
27.Hence, no oppression of his rights or injustice can be attributable to
“B”. Consequently, NO moral and exemplary damages can be
rightfully awarded to “A”. As the Supreme Court puts it;

“Moral Damages are recoverable only where the

dismissal of an employee is attended by bad faith, or an act
oppressive to labor, or it is done in a manner contrary to morals,
good customs or public policy.”20

“An award of exemplary damages can only be justified

if the dismissal was effected in a wanton, fraudulent, oppressive
or malevolent manner.”21

28.As to the award of attorney’s fees, “A” is solely answerable for it,
having hired his counsel and for filing this baseless complaint.
SCHOLARSHIP CONTRACT WAS TERMINATED DUE TO COMPLAINANT’S
FAULT, HENCE RESPONDENTS CANNOT BE CHARGED WITH BREACH OF
CONTRACT.
29. “A” in his amended complaint raised the issue of breach of contract,
referring to the Scholarship Contract entered into by him and “B”. The
said contract, clearly provides;

“In case GRANTEE cannot finish the scholarship, he/she will

pay the amount spent during the period of the scholarship.” 22

30. And as provided in the Personnel Development Manual,

to wit;
“c. Should the scholar/grantee fail to serve the institution for
any unjustifiable reason, he shall:
i.) Reimburse the total amount spent to include
transportation and book expenses, salaries
received during the scholarship period and
other amounts given him/her related to the
scholarship. xxx”23

20
Mendoza vs. NLRC et.al., G.R. No. 131405, July 20 1999.
21
NASECO, et. al., vs. NLRC,, et. al., G.R. NO.: 69870, November 29, 1988.
22
Par. 5, Id. No.3, Annex “4-A”.
23
Personnel Development Fund Manual, Art. I, Sec. 5, Sub-pars. a and c [i], Annex “5-B” and “Annex “5-B-1”.
Original 7
Position Paper for Respondents; NLRC Case No.: RAB-IX-12345
 31. Since “A”/Grantee failed to finish his studies, due to the suspension of
renewal of his contract on the ground of gross and habitual
absenteeism, he cannot put the blame on “B” to be the cause for his
failure.
32. To reiterate, “A” cannot make use of his studies as an excuse for his
gross and habitual absenteeism. That was not the spirit of the
scholarship. It endeavours to further develop “B”’s faculty members;
not to be used as an excuse for their inefficiencies. If there was one
who breached the contract, it was the “A” himself through his acts.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of the

Honorable Labor Arbiter that “A”’s causes of action be dismissed for lack of
merit.
It is further prayed that “A” be ORDERED to pay Respondents all his
accounts with “B” amounting to P124,287.06, covering his unpaid college back
accounts and his scholarship refund.
Respondents pray for other reliefs and remedies just and equitable under
the premises.
City of Zamboanga, Philippines, 03 February 2012.

LAWYER OF RESPONDENTS

Copy furnished:

Adverse Counsel Received by: _________________

Counsel for Complainant Date: ______________________

REPUBLIC OF THE PHILIPPINES)

CITY OF ZAMBOANGA ) S.S.

VERIFICATION
I, “C”, herein representing “B”, of legal age, after having been sworn to in
accordance with law, hereby depose and state that:

1. I am representing Respondent-“B” in the above-entitled case;

2. I have caused the preparation of the foregoing Position Paper;
3. I have read all the allegations contained therein; and
4. The same are true and correct of my own personal knowledge.

City of Zamboanga, Philippines, 03 February 2012.

“C”
President of “B”

SUBSCRIBED AND SWORN to before me this 3rd day of February 2012, at

Zamboanga City, Philippines.
AFFIANT CTC No./Date of Issue/ Government Identification Card
Place of Issue
“C”

Original 8
Position Paper for Respondents; NLRC Case No.: RAB-IX-12345
 NOTARY PUBLIC

Doc. No.: _____;

Page No.:_____;
Book No.: ____;
Series of 2012.

Prepared by: Margarita P. Bernante

Original 9
Position Paper for Respondents; NLRC Case No.: RAB-IX-12345