Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch X
Cagayan de Oro City

JOPHIL R. CASSION,
Complainant,
NLRC CASE NO.
-versus- RAB 10-12-01020-2019

MIGHTY L&K FOODS INC.

ARBEE’S BAKESHOP &/or
LEO T. MANGUILIMOTAN, owner
ALLAN REY R. BAYRON, HR Manager,
Respondents.
x--------------------------------------/

POSITION PAPER

COMES NOW complainant, through the Public Attorney’s

Office by the undersigned counsel, and unto this Honorable
Commission, most respectfully submits this position paper, to wit:

STATEMENT OF THE FACTS

Complainant started his work with Arbee’s Bakeshop

(ARBEE’S for brevity) last June 5, 2014 up to October 23, 2019. He
was initially hired as a “Hornero” receiving a daily wage of
P327.00. After a month, he became a “Baker” receiving a daily
wage of P340.00, which then increased to P365.00. For five (5)
years and four (4) months, complainant was never been
suspended, or reprimanded by ARBEE’S, and in fact, he received
an award for having no absences for a period of one (1) year.
During his stint with ARBEE’S, he worked in a night shift duty
whenever he will be assigned to another branch. As further proof
of his employment with the respondent, copies of some of his
Employee ID Pay Slips are hereto attached as Annexes “A” and
“B”.

According to the complainant, there was no clear statement

from the management whether his P365.00 rate per day is
considered as an 8-hour duty. He was entitled to an overtime pay
but it was based on a “per kilo per hour rate”?

For a period of three (3) years, from 2014 – 2017, the

complainant did not have any day-off. Until on 2018, it was agreed
in the meeting that the employees of ARBEE’S were granted day-
off twice a month, but sad to say, this was not observed. Every
time they requested for a day-off, they were not allowed because
of lack of personnel/reliever to man the bakeshop.

In the year 2018, ARBEES had no proper daily time record

policy. Employees were required to “PUNCH IN” in the office by
5PM but did not declare the exact time to “PUNCH OUT”. Every
time they were late to punch in, the employees will receive an
outright memo from the management. ARBEE’S only computed
the “double pay” to be entitled to the employees based on the “red
dates” marked on the calendar.

The controversy started last October 16, 2019 when Jenilyn

Buntong, then cashier of ARBEE’S and also the complainant in
another case, had a squabble with the saleslady regarding work.
When the supervisor arrived, the saleslady reported that Jenilyn
and the complainant were cooking using the egg ingredient from
the bakeshop. During that incident, the complainant was busy in
setting out the pastries and preparing fresh bread.

With that single incident, complainant was charged with

violation of company code of conduct, particularly Art. 3.5 -
Stealing or attempting to steal from the company, customers, co-
employees or suppliers with a penalty of DISMISSAL.

Seven (7) days after the incident, the complainant received a

letter of suspension for a thirty (30) day period. It was only on
October 23, 2019 when ARBEE’S gave the complainant notice to
explain in writing. But on the following day, October 24, 2019, the
complainant was no longer allowed to go on duty and that the
thirty (30) days suspension has already taken effect without the
need to submit the complainant’s letter to explain.

On November 6, 2019, ARBEE’S summoned the complainant

to the former’s office at the Gusa branch and he was asked
regarding the incident. It was on November 21, 2019 when the
complainant was told to return to the Gusa branch and there he
was handed a memorandum letter dismissing him from
employment effective November 14, 2019.

Complainant then sought the assistance of the DOLE.

Complainant was advised by DOLE to return to ARBEE’S and
inquire if he will be entitled to a separation fee and whether his
13th month pay will be given. Unfortunately, he was informed by
the management of ARBEE’S that he is not entitled to his
monetary claim because it is their company policy.

Aggrieved of the non-payment of his monetary benefits,

complainant sought the assistance of the DOLE through the filing
of a complaint.

Hence, this position paper.

ISSUES

1. Whether or not there is a just and valid

cause for the dismissal of the complainant?

2. Whether complainant is entitled to 13th

month pay?

3. Whether complainant is entitled to

separation pay?
 4. Whether complainant is entitled to the
underpayment of premium for rest day?

DISCUSSION

First, was there a just cause for the dismissal of the complainant?

For an employer to impose a penalty of dismissal, it must be

founded on one of the grounds as provided under the law. The
applicable provision of law to this case is Article 296 of the Labor
Code, as amended, which states:

Article 296. Termination by Employer. – An employer may

terminate an employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the

employee of the lawful orders of his employer or
representative in connection with his work;

(b)Gross and habitual neglect by the employee of his

duties;

(c) Fraud or willful breach by the employee of the trust

reposed in him by his employer or duly authorized
representative;

(d)Commission of a crime or offense by the employee

against the person of his employer or any
immediate member of the family or his duly
authorized representative; and

(e) Other causes analogous to the foregoing.

While an employer is given a wide latitude of discretion in

managing its own affairs, in the promulgation of policies, rules
and regulations on work-related activities of its employees, and in
the imposition of disciplinary measures on them, the exercise of
disciplining and imposing appropriate penalties on erring
employees must be practiced in good faith and for the
advancement of the employer’s interest and not for the purpose of
defeating or circumventing the rights of employees under special
laws or under valid agreements.1 Dismissal must not be arbitrary
and capricious. Due process must be observed in dismissing an
employee because it affects not only his position but also his
means of livelihood.2

In this case, the basis of the respondent in imposing the penalty

of dismissal for the complainant relies solely on a single report of
an incident on alleged stealing of employer’s property. Without
sufficient and substantial evidence to prove the allegation,
complainant was charged with violation of company code of
conduct, particularly Art. 3.5 - Stealing or attempting to steal from
the company, customers, co-employees or suppliers with a penalty
of DISMISSAL. The act committed was considered as serious
misconduct.

In Maula v. Ximex Delivery Express, Inc3, the Supreme Court

reiterated previous pronouncements on the nature of serious
misconduct as a just cause to terminate an employee according to
Labor Code. To quote:

Misconduct is improper or wrong conduct; it is the

transgression of some established and define rule of
action, a forbidden act, a dereliction of duty, willful
in character, and implies wrongful intent and not
mere error in judgment. The misconduct, to be
serious within the meaning of the Labor Code, must
be of such a grave and aggravated character and not
merely trivial or unimportant. Thus, for the
misconduct or improper behavior to be a just cause
for dismissal, (a) it must be serious; (b) it must relate
to the performance of the employee’s duties; and (c)
1
Convoy Marketing Corp v Albia, G.R. No. 194969, October 7, 2015
2
Rance, et.al. v NLRC, G.R. No. 68147, June 30, 1998
3
G.R. No. 207838, January 25, 2017
 it must show that the employee has become unfit to
continue working for the employer.

Here, the complainant was accused of having participated in

the theft without sufficient evidence. Upon review of the case, it is
nowhere in the complainant’s explanation that he admitted having
actually participated in the commission of the alleged offense. In
fact, he even suggested that a daily inventory should be conducted
in order to determine if there is in fact stealing inside the bakery.
Copies of ARBEE’s Memorandum and complainant’s written
explanation are hereto attached as ANNEXES “C” and “D”.

The findings of the employer are inconsistent with the written

explanation of the complainant. It rests solely on information or
accusations uncorroborated with any sufficient evidence.
Accusation cannot take place of proof. Accusation is not
synonymous with guilt. A suspicion or belief no matter how
sincerely felt cannot substitute for factual findings carefully
established through an orderly procedure.4

Respondent failed to prove that the complainant actually

committed the alleged offense and whether if it constitutes serious
misconduct. It is not enough for respondent to merely charge the
complainant with theft. The validity of the charge must be
established in a manner consistent with due process.

While employer still has the discretion whether to dismiss the

employee, impose a lighter penalty, or condone the offense
committed, in making the decision, the employee’s past
employment record must be taken into consideration.5

The penalty may not necessarily be dismissal. The

appropriateness depends not only on the lightness or seriousness
of the offense but also on diverse factors such as the employer’s
toleration of or laxity in past similar offense, the employee’s years
of service and “clean” record, and even the amount or value
involved.

4
Philippine Associated, etc., June 29, 1989
5
Santos v Integrated Pharmaceutical, Inc. G.R. No. 204620, July 11, 2016
 In this case, complainant was meted with a penalty of dismissal
for violation of a company policy on stealing. An allegation of
stealing which only involves a piece of an egg ingredient from the
kitchen. An allegation not corroborated with substantial evidence
to warrant dismissal. Such penalty was, therefore, not
commensurate to the alleged accusations, if not, too severe for the
complainant.

Second, is the complainant entitled to 13th month pay?

Presidential Decree No. 851 (P.D. No. 851) is the law

directing the 13th month payment. Section 3 of its IRR provides:

Section 3. Employers covered The Decree shall apply

to all employers except to:

(a) Distressed employers, such as (1) those which are

currently incurring substantial losses or (2) in the case
of non-profit institutions and organizations, where
their income, whether from donations, contributions,
grants and other earnings from any source, has
consistently declined by more than forty (40%) percent
of their normal income for the last two (2) years,
subject to the provision of Section 7 of this issuance;

(b) The Government and any of its political

subdivisions, including government-owned and
controlled corporations, except those corporations
operating essentially as private subsidiaries of the
Government;

(c) Employers already paying their employees 13-

month pay or more in a calendar year of its equivalent
at the time of this issuance;

(d) Employers of household helpers and persons in the

personal service of another in relation to such workers;
and
 (e) Employers of those who are paid on purely
commission, boundary, or task basis, and those who
are paid a fixed amount for performing a specific work,
irrespective of the time consumed in the performance
thereof, except where the workers are paid on piece-
rate basis in which case the employer shall be covered
by this issuance insofar as such workers are concerned.

Based on the foregoing, respondent is evidently required to

give 13th month pay to its employees as it is not among those
exempted by law. Accordingly, complainant is entitled to receive
his 13th month pay which should be computed at one twelfth (1/12)
of his basic salary within a calendar year.

Third, is the complainant entitled to separation pay?

Under present law and jurisprudence, separation pay may

be given as a financial assistance, as an act of social justice, even in
case of legal dismissal, at court’s discretion. When there is doubt
that dishonesty was committed, financial assistance may still be
awarded an employee who has rendered long years of service. The
doubt is resolved in the employee’s favor; hence, despite the
nature of the offense, financial assistance on ground of
compassionate justice may still be given.6

In this case, there was no evidence to prove that the

complainant actually participated or committed to the act
complained of. He was just merely implicated with no evidence to
prove whatsoever on his alleged participation in the commission
of the offense. Doubt, therefore, exists as to whether or not;
complainant did actually participate in the alleged stealing. For
five (5) years and four (4) months, complainant was never been
suspended, or reprimanded by ARBEE’S, and in fact, he received
an award for no absences.

6
Manggagawa ng Komunikasyon sa Pilipinas and A.L. Cruz vs NLRC and PLDT, GR No. 90964,
Feb. 10, 1992
 Hence, for equitable considerations and compassionate
justice, complainant is granted financial assistance in a form of
separation pay.

And fourth, is the complainant entitled to the underpaid rest day

premium?

Article 91 of the Labor Code, as amended, provides in

relevant part:

Art. 91. RIGHT TO WEEKLY REST DAY.

(a) It shall be the duty of every employer, whether
operating for profit or not, to provide each of his
employees a rest period of not less than twenty-four
(24) consecutive hours after every six (6)
consecutive normal work days.

In this case, for a period of three (3) years, from 2014 – 2017,
the complainant did not have any day-off. Until on 2018, it was
agreed in the meeting that the employees of ARBEE’S were
granted day-off twice a month, but sad to say, this was not
observed. Every time they requested for a day-off, they were not
allowed because of lack of personnel/reliever to man the
bakeshop.

As we can glean from the facts of the case, it is very clear

that the complainant is entitled for a premium pay for rest day.

CONCLUSION

In reminding everyone, especially the employers, of the

severity of dismissing a worker, the Supreme Court has
pronounced these classic terms:

Where penalty less punitive would suffice,

whatever missteps may be committed by labor ought
not to be visited with a consequence so severe. It is not
 only because of the law’s concern for workingmen.
There is, in addition, his family to consider.
Unemployment brings untold hardships and sorrows
on those dependent on the wage-earner. The misery
and pain attendant on the loss of jobs then could be
avoided if there be acceptance of the views that under
all circumstances of a case, the workers should not be
deprived of their means of livelihood. Nor is to
condone what had been done by them. For all this
while, since the employer considered them separated
from the service, they had not been paid. From the
strictly juridical standpoint, it cannot be too strongly
stressed that where a decision may be made to rest on
informed judgment rather than rigid rules, all the
equities of the case must be accorded their weight.
Labor law determinations should not be only
secundum rationem but also secundum caritatem.

In short, dismissal is a supreme penalty, and if it is at all

avoidable, without oppressing the employer, it should be avoided.
Whenever an employee is punished, his dependents are punished
too.7

PRAYER

WHEREFORE it is respectfully prayed of this Honorable

Commission that:

(a) The complainant was dismissed without just and valid

cause;

(b)The complainant be entitled to his 13th month pay;

(c) The complainant be entitled to his separation pay;

(d)The complainant be entitled to his underpayment of

premium for rest day;

7
Almira vs B.F. Goodrich Philippines, G.R. No. L-34974, July 25, 1974, 58 SCRA 120, 131
 Other reliefs just and equitable in the premises are likewise
prayed for.

Cagayan de Oro City, February 24, 2020.

Public Attorney’s Office

Cagayan de Oro District Office
Cagayan de Oro City

By:

FRANCIS A. DACUT
Public Attorney I
Roll No. 72630
MCLE No. VII-0000796 04.14.2025
IBP Lifetime No. 109276/01-13-2020
CDO-MIS. OR. Chapter
Tel. No. (08822)722866 (088)8574809

EXPLANATION

The foregoing Position Paper is hereby served by registered

mail, personal service not being practicable in view of the distance
and lack of office personnel.

FRANCIS A. DACUT
Copy furnished:

LEO T. MANGUILIMOTAN, owner &/or

ALLAN REY R. BAYRON, HR Manager
MIGHTY L&K FOODS INC.
ARBEE’S BAKESHOP
Paradise St., Hipodromo, Cebu City

ARBEE’S BAKESHOP
#049 Centauros St., Gusa Villa Ernesto Subd.,
Gusa, Cagayan de Oro City

Republic of the Philippines)

Cagayan de Oro City ) S.S.

VERIFICATION AND CERTIFICATION

OF NON FORUM SHOPPING

I, JOPHIL R. CASSION, of legal age, single, Filipinos, and

resident of ____________, Cagayan de Oro City after having been
duly sworn to an oath in accordance with law, hereby depose and
say:

1. That I am the complainant in the above entitled case;

2. That I have caused the preparation of the foregoing

Position Paper; and the allegations contained therein are
true and correct of my own personal knowledge and
based on authentic documents;

3. That (a) I have not commenced any other action or

proceeding involving the same issues before the supreme
Court, the Court of Appeals or any other tribunal or
agency; (b) to the best of my personal knowledge, no such
action or proceeding is pending in the Supreme Court,
Court of Appeals or different divisions thereof or any
other tribunal or agency; (c) if there is such other action or
 proceeding is pending, I will state the status of the same;
and (d) should I learn that a similar action or proceeding
has been filed or is pending before the Supreme Court,
Court of Appeals I will undertake to promptly inform the
aforesaid courts and such other tribunal or agency of that
fact within five (5) days therefrom to this Honorable
Court.

IN WITNESS WHEREOF I have hereunto set my hands this

___day of February 2020 in the City of Cagayan de Oro,
Philippines.

JOPHIL R. CASSION

SUBECRIBED AND SWORN TO before me this ___ day of

January 2020 in the City of Cagayan de Oro, Philippines, affiant
exhibiting his ________________ issued on ___________ at
________________ as proof of identity.