Human Resources Manager

Office of the HRD

Written Explanation

_________________________, through the undersigned counsel,

hereby submits this Written Explanation and state:

1. This Written Explanation is being submitted to the OFFICE OF

THE HRD, in view of the Notice to Explain in Writing (“Notice”), that was
received by Manuel last 01 August 2019, directing him to explain, in writing,
within five (5) days, why no disciplinary action shall be taken against him.

2. Manuel is being assisted herein by the undersigned counsel,

___________________________, in accordance with Section 2 (I) b, Rule
XXIII, Book V of the Omnibus Rules Implementing the Labor Code, as
amended by Department Order No. 9, Series of 1997

3. At the outset, ________________ is being directed to submit a

written explanation on the basis of the company’s investigation, as stated in
the said Notice, to wit:

“Please be informed that an investigation has been

opened relating to fraud perpetrated against the company. The
fraudulent acts pertain to unauthorized price padding and
receiving of commission from one of the company’s suppliers.”

4. In addition, _______________________ is being apprised that

fraud is a violation of the company’s code of excellence and that the said
actions are tantamount to dismissal, thus:

“In connection to Article 282 (sic) of the Philippine Labor

Code, such action may be categorized as (c) Fraud or willful
breach by the employee of the trust reposed in him by his
employer or duly authorized representative; which is a just cause
to terminate an employee and (e) analogous to the foregoing.”1

1 Article 282 of the Labor Code of the Philippines does not mention any fraud
or just cause for termination of employee, the said Article speaks of
assistance by the Department of Labor, thus:

“ART. 282. Assistance by the Department of Labor. The

Department of Labor, at the initiative of the Secretary of Labor, shall
 5. While ________________ is being notified that failure on his
part to explain in writing, will be construed as admission of violation of the
company’s code of excellence, a careful perusal of the entire Notice, however,
would reveal, that the company merely opened an investigation relating to
fraud perpetrated against the company and there was no clear statement or
allegation that would associate ______________ in the alleged fraud.

6. Stated otherwise, there is no allegation, whatsoever, in the said

Notice that Manuel is being accused as the perpetrator of the alleged fraud.
There is nothing in the said Notice which clearly illustrate, how the alleged
fraud was committed; where was it committed; when was it committed; and
who committed the same.

7. Noteworthy to mention was the fact that there was no evidence,

whether testimonial or documentary, that was presented or attached to
the said Notice to prove or support any involvement of ___________ in the
alleged fraud, or any violation of the company’s code of excellence.

8. It appears that the company is relying on a mere suspicion that

a fraud was perpetrated against the company. On the basis of such suspicion,
sans any evidence, _____________________ is being asked to explain why
no disciplinary action shall be taken against him.

9. In a long line of cases, the Supreme Court has consistently ruled

that a mere suspicion is not a valid ground for dismissal, thus, in the case of
Pilipinas Bank vs. National Labor Relations Commission,2 the Court
pronounced that:

“Suspicion has never been a valid ground for dismissal

and the employee’s fate cannot, in justice, be hinged upon
conjectures and surmises.” (Emphasis supplied)

10. Similarly, in the case of Waterous Drug Corporation vs.

National Labor Relations Commission3 the Supreme Court ruled, in this wise:

extend special assistance to the organization, for purposes of

collective bargaining, of the most underprivileged workers who, for
reasons of occupation, organizational structure or insufficient
incomes, are not normally covered by major labor organizations or
federations.”

2 G.R. No. 101372, November 13, 1992, 215 SCRA 750, 757.
3 280 SCRA 735 (1997)
2
 “Catolico's dismissal then was obviously grounded on
mere suspicion, which in no case can justify an employee's
dismissal. Suspicion is not among the valid causes provided
by the Labor Code for the termination of employment; and
even the dismissal of an employee for loss of trust and
confidence must rest on substantial grounds and not on the
employer's arbitrariness, whims, caprices, or suspicion.
(Emphasis supplied)

11. As applied herein, the allegation of the company is obviously

grounded on mere suspicion, hence, it cannot justify an employee's dismissal.
Moreover, considering that the company’s allegation is not supported by any
evidence and does not contain any averment of the involvement of
_______________ in the alleged fraud, ______________ should not be meted
any disciplinary action.

12. In the same vein, the company’s action to place

_______________ under preventive suspension, stating the incident is
detrimental to safety and security of the company’s confidential information
and files, has no legal basis.

13. The pertinent rules dealing with preventive suspension is found

in Section 8 of Rule XXIII, Book V of the Omnibus Rules Implementing the
Labor Code, as amended by Department Order No. 9, Series of 1997, which
read:

“Section 8. Preventive suspension. The employer may

place the worker concerned under preventive suspension only if
his continued employment poses a serious and imminent
threat to the life or property of the employer or of his co-
workers.” (Emphasis supplied)

14. As succinctly stated above, preventive suspension is justified,

only, where the employee's continued employment poses a serious and
imminent threat to the life or property of the employer or of the employee's
co-workers. Without this kind of threat, preventive suspension is not
proper. Stated differently, incident detrimental to safety and security of the
company’s confidential information and files is not a ground for Preventive
Suspension.

3
 15. Evidently, the present allegation is based on a mere suspicion and
speculation, there being no evidence to prove any involvement of Manuel in
the alleged fraud. Therefore, the Company has no adequate factual or legal
basis to impose any disciplinary action against ______________.

Respectfully Submitted:

Assisted by Counsel: