Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

LORILY MARTICIO BAUTISTA,

Complainant,

NLRC NCR CASE NO. NCR- 01-00138-18

-versus-

HON. LABOR ARBITER ALBERTO B. DOLOSA

BALIAO DENTAL CLINIC and

DIAGNOSTIC CENTER INC. /
DRA. JOVITA L. BALIAO,
Respondents.

COMPLAINANT’S
REPLY
Before this Honorable Commission, Complainant through the Public
Attorney’s Office and the undersigned public counsel, respectfully reiterates
and re-pleads the allegations in her Position Paper and respectfully submits
her Reply to the Respondents’ Position Paper as follows:

1. As to allegations in the Respondents’ Statement of Facts of the case

pertaining to “several complaints from patients concerning
Complainant’s unhospitable and uncaring attitude towards the
Respondent Company’s patients, Complainant posits that said
allegation is baseless and is a mere fabrication.

For the record, no proof was presented by Respondents with regard to

such allegation. Complainant vehemently denies the same because
as to her knowledge and recollection, she did not have any
untoward incident in her relations to the patients in her stay with
the Respondents.

2. As to the allegation that there were “reports of the Complainant

issuing prescriptions of medicine and other prescriptive drugs
without the authority or permission of the handling doctors or
dentists of the Company.”

1
 Again, this is baseless and a mere fabrication. Complainant
vehemently denies the same. If this were indeed true, then
Respondent should have at least presented the receipt allegedly to
have been issued by the Complainant. In fact, the alleged report was
not even presented by the Respondents.

3. For the record, Complainant repeatedly demanded from Respondents

Baliao and a certain Ofel that the prescription she allegedly issued and
the complaints of the clients be shown to her. Her demands fell on
deaf ears and no document was ever furnished or at least shown to her
in relation to the allegations hurled against her. Even the names of the
“doctors or dentists” involved were not presented to Complainant.

Further, the same allegation pertaining to issuing prescriptions was

not even mentioned in the Memorandum / Notice to Explain and
Preventive Suspension. The same was only mentioned in the
Termination Letter as an “addition.” It is a mere afterthought from
the Respondents in an attempt to pile up baseless allegations against
the Complainant herein.

Thus, due process for a valid termination was definitely NOT

COMPLIED WITH. Complainant was not given sufficient
opportunity to make a logical and reasonable explanation as to the
said allegation hurled against her. It was only in that termination letter
that she was being blamed for issuing prescriptions without even
proof.

4. Respondents allege that Dra. Baliao was “startled by the foregoing

information”, however, there was no showing that there was indeed
hard evidence, nor any evidence at all aside from self-serving
assertions that could validly result to Complainant’s preventive
suspension.

5. The said Memorandum, attached in the Respondents’ Position Paper

as ANNEX “A”, alleged that:

“In addition, I myself have also witnessed and observed such

indifferent attitude during one of my visits in that branch. Said
behavior already resulted in the decline of the number of our
clients in the same branch.”

Again, said statements are mere malicious imputations to give the

Respondents acts a semblance of validity.

6. The Complainant, as submitted by both parties, was employed as a

dental assistant. As such, she assists dentists during dental procedures,
record-keeping, initial patient interview, routinary cleaning and
maintenance of the office.

2
7. Thus, her job entails minimal patient contact as the one who primarily
gives the care and treatment are the dentists themselves. Therefore,
the allegation in the Memo that Complainant’s attitude is ultimately to
blame for the decline in the number of clients in the concerned branch
is a malicious, baseless and self-serving allegation of the Respondent.

8. As the termination letter would reveal, Respondents cannot avoid the

conclusion that the ultimate reason for Complainant’s termination was
because the latter allegedly went AWOL. The pertinent portion of the
letter reads as:
“Although you complied with the request to explain your side,
however, to date, you have not reported for duty despite the lapse
of the period for preventive suspension imposed upon you, thereby
signifying your intention to abandon your duty and to go on
A.W.O.L.”

9. In this regard, Complainant would like to point out and reiterate that:

9.1.The termination letter was sent by Respondents and received by her

the same day set for a SEnA Conference.
9.2.It was Respondent herself that advised Complainant to look for
another job even when the latter was still suspended.
9.3.Even assuming arguendo that complainant committed mistakes in the
performance of her duties that necessitates dismissal, she must have
been given at least sufficient opportunity to explain her side.
Obviously, no such sufficient opportunity was given to her.
9.4.Complainant respectfully submits that her suspension, aside from
being illegal, is a mere subterfuge to conceal the real intention of
dismissing her.
9.5.It is highly unlikely and deserves scant belief that the “investigation”
they claim to have done lasted from September 2017 until December
11, 2017.
9.6.Respondents did not even issue or sent any return to work order after
the alleged period of suspension.
9.7.Again, Complainant posits that her suspension was a mere ploy used
by Respondents to conceal the intent of terminating her. Said
intention can clearly be seen in the text message exchanges as
attached in the Complainant’s Position Paper.
9.8.Finally, the Supreme Court has been consistent in ruling that:

“Besides, the fact that respondent filed the instant complaint

negates any intention on his part to forsake his work. It is a settled
doctrine that the filing of a complaint for illegal dismissal is
inconsistent with the charge of abandonment, for an employee
who takes steps to protest his dismissal cannot by logic be said to
have abandoned his work.”1

Thus, if the Respondents’ just cause in terminating

Complainant is for the reason that she went AWOL, the same is
1
Nationwide Security and Allied Services, Inc. vs. Valderama, GR No. 188614, February 23, 2011

3
 misplaced as Complainant never voluntarily abandoned her
work.

10. Respondents are trying to mislead this Honorable Office in their

Position Paper. In the third page of Respondents’ Position Paper, it
states that:

“Herein attached is a copy of the Memorandum issued by

Respondents to the Complainant dated September 2, 2017 as
Annex “A”.

In the said letter, it was further stated that pending resolution of

the disciplinary process arising from the said incident,
considering Complainant’s position where she might pose a
danger if she would be prescribing more medicine and other
drugs to other patients. This was done in order not to unduly
compromise the ongoing investigation. x x x x” (emphasis ours)

11. However, a close reading of the said Memorandum 2 would reveal that
the allegation related to prescribing drugs and medicine to patients
was never mentioned therein. This shows the Respondents’
propensity to fabricate facts in order to suit their cause in total
disregard of the law and more importantly, the rights of their
employee.

12. Another instance where Respondents forward misleading allegations

is through alleging that:

“On September 4, 2017, the Complainant submitted a Letter of

Explanation in response to the Notice to Explain of September 2,
2017 regarding her unruly behavior and prescription of medicine
without the authority or permission. The Complainant admitted
the same and apologized for the inconvenience caused asked for a
second chance to work at the Respondent Company.” (emphasis
ours)

13. Reading the Explanation letter which Respondents themselves

attached would show that the very first sentence thereof contains a
strong denial and reads as follows:
“Good day po doc, paliliwanag ko lang po na ang mga nakasaad sa
sulat ay hindi totoo na maraming pasyente ang nagrereklamo
sa akin at lalong hindi po ako marunong magtaray sa pasyente,
xxxx” (emphasis ours)

14. Complainant never made mention of prescribing medicines without

permission. She cannot be expected to answer said allegation when
it was not even contained in the Notice of Charge and Preventive
suspension Memo.

15. The last paragraph of the Explanation Letter read as follows:

2
Annex “B” of Complainant’s Position Paper and Annex “A” of Respondents Position Paper

4
 “Ngayon pa po kung kalian matagal na ako sainyo saka ako
makakatanggap ng reklamo, ginagawa ko naman ang trabaho ko
ng maayos. Pasensya na po kayo sa mga nasabi ko, basta malinis
ang hangarin ko. Humihingi ako ng paumanhin kung mayroon
man nagawa akong mali sa paningin niyo. Pagbigyan nyo muli
ako ng isa pang pagkakataon na magtrabaho sa inyo” (emphasis
ours)

16. This shows that indeed, this is the first time that Complainant was
“complained” of.

17. More importantly, this shows that Complainant never had the
intention to sever herself voluntarily from her work. That she was
willing to go the extent of humbling herself just to get a chance to go
back to work again. Complainant even went asking for apology for
what she did wrong “in the eyes” of Respondent.

Client knows in her good conscience that she did no wrong as to the
patients in the clinic. But if the second chance she desired to keep her
job would require her apology, she was willing to give it.

18. Next, Respondents did not show proof that they gave Complainant
“several notices”. No notice was ever given or presented by
Respondents to the Complainant for the latter to go back to work.
Dra. Baliao nor any representative from the Respondent
Company never contacted Complainant for the latter to go back to
work.

RESPONDENT BALIAO, IS PERSONALLY AND SOLIDARILY

LIABLE FOR THE COMPANY’S LIABILITIES TO
COMPLAINANT.

19. Respondent Dr. Baliao is in the very heart of the actions leading to
facts relevant to Complainant’s unceremonious termination. She
herself was the one who signed the Memorandum and the Termination
letter sent to Complainant. She even informed Complainant that she
cannot return to work as her position was already taken and she even
sent a text message ordering the Complainant to look for another
work.

Without supporting proof, it can be said that the source of the

allegations against Complainant was only the private respondent
herself.

20.The Court in one case held:

5
 “It is a fundamental principle of corporation law that a corporation is an entity
separate and distinct from its stockholders and from other corporations to which it
may be connected. But, this separate and distinct personality of a corporation
is merely a fiction created by law for convenience and to promote justice. So,
when the notion of separate juridical personality is used to defeat public
convenience, justify wrong, protect fraud or defend crime, or is used as a device
to defeat the labor laws, this separate personality of the corporation may be
disregarded or the veil of corporate fiction pierced.This is true likewise when
the corporation is merely an adjunct, a business conduit or an alter ego of another
corporation. (Concept Builders, Inc. vs. NLRC, G.R. No. 108734, May 29, 1996)”

21. From the foregoing, Dra. Jovita Baliao cannot be exempt from the
application of the piercing of the veil of corporate fiction.

COMPLAINANT WAS INDEED

ACTUALLY TERMINATED

22. The Complaint and the Complainant’s Position Paper is very clear.
Her cause of action is “Illegal Dismissal – Actual”. Hence, any
insinuation that she is filing a case for constructive dismissal is totally
misplaced.

23. Nevertheless, considering the Respondents’ admission as to the nature

of Complainant’s termination, the only issue that remains to be
resolved is the legality or illegality of the same.

24. Well-settled is the rule that the employer has the burden of proving
that the dismissal of an employee is for a just or authorized cause.
The failure of the employer to discharge this burden means that the
dismissal is not justified or authorized, and that the employee is
entitled to reinstatement and backwages.3

25. As stated above, all the Respondents did was to hurl several
allegations towards the Complainant herein. They even went on
saying that Complainant committed “serious misconduct and fraud or
willful breach of the trust imposed upon her when she failed to
disclose the fact of her malicious actions, xxxx”

26. On its own, these words from Respondents are mere empty
allegations. Ultimately, Respondents claim that there was a just cause
for terminating the Complainant has not even a single independent
evidence to stand on. Their claim, therefore, deserve scant
consideration.

3
Paguio Transport Corporation vs. National Labor Relations Commission, G.R. No. 119500, 28 August
1998.

6
27. In sum, no other conclusion can be had than that the Complainant
was illegally dismissed. And considering the factual backdrop of the
case at hand, Respondents should also be held liable for separation
pay and backwages.

AS TO COMPLAINANT’S
PREVENTIVE SUSPENSION:

28. Sections 8 of Rule XXIII, Implementing Book V of the Omnibus

Rules Implementing the Labor Code provides:

“SEC. 8. Preventive suspension. The employer may place

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

29. As succinctly stated above, preventive suspension is justified where

the employees continued employment poses a serious and imminent
threat to the life or property of the employer or of the employees co-
workers. Without this kind of threat, preventive suspension is not
proper.4 (emphasis ours)

30. Preventive suspension may be legally imposed against an employee

whose alleged violation is the subject of an investigation. The
purpose of his suspension is to prevent him from causing harm or
injury to the company as well as to his fellow employees.5
(emphasis ours)

31. Here, no serious and imminent threat to her employer or co-

workers was ever posed by Complainant to justify her preventive
suspension. Thus, Complainant’s preventive suspension was not
proper.

32. Complainant never had a bad record with the company in more than
two (2) years of her stay therein. This was the first time she received a
memo of any sort prior to the Memo in relation to this case. It is
highly unlikely that she would cause threats, harms, or injuries to the
people therein and no circumstance, whatsoever would necessitate her
preventive suspension.

33. Complainant’s suspension was pre-meditated as the real intention of

the Respondents is to terminate the Complainant. In fact, if there was
indeed an investigation in the first place, why were the results thereof
not even presented by the Respondents? There is also no showing that

4
Artificio vs NLRC, GR No. 172988, July, 26, 2010
5
Mandapat vs Add Force Personnel Services Inc., GR No. 180285, July 6, 2010

7
 the Complainant’s side was considered by the Respondents.

Without any proof to that effect, Complainant respectfully submits

that her preventive suspension was illegal and that no investigation
was conducted by Respondents with regard to the offenses alleged
in the Memo and Notice of preventive suspension.

34.As to the allegation of strained relations, Respondents hostile stance

towards Complainant can readily be seen in the Memorandum and
Termination Letter. Moreso, it can be seen in their Position Paper. If at
all, their pure insistence that the Complainant would pose a danger to
them, speaks for itself that their relation is strained.

35.Complainant really wanted to work for Respondents. However, she

cannot just let the Respondents trample upon her and her rights as an
employee and as a human being. She would not go to this extent in this
proceedings if she feels that there is nothing worth seeking redress with
what Respondents did to her.

36.Complainant’s allegations pertaining to her money claims (service

incentive leave equivalent, overtime pay, 13th month pay, separation pay
and backwages, damages and attorney’s fees) are hereby repleaded and
re-emphasized. Aside from damages and attorney’s fees, these money
claims was not controverted by Respondents.

PRAYER
WHEREFORE, premises considered, it is most respectfully prayed
that this Honorable Commission:

1) Declare that the Complainant was illegally dismissed, thus, entitling

her to separation pay with full backwages;

2) Order Respondents to pay Complainant’s overtime pay;

3) Order Respondents to pay the monetary equivalent of Complainant’s

service incentive leave

4) Order Respondents to pay the prorated amount of Complainant’s 13th

month pay;

5) Declare that the Complainant was illegally suspended;

8
 6) Order Respondents to pay Complainant damages in the amount of Php
50,000.00 by way of moral damages, and Php 30,000.00 by way of
exemplary damages;

7) Order Respondents to pay attorney’s fees of 10% of the total award or

in the amount of separation pay in lieu of reinstatement and pursuant
to R.A. 9406, otherwise known as “The PAO Law”; and

8) Find and declare the Respondents solidarily liable to the Complainant.

Other reliefs, just and equitable, under the premises are likewise most
respectfully prayed for.

City of Manila, April 4, 2018.

LORILY BAUTISTA
Complainant

Assisted By:

Department of Justice
Public Attorney’s Office
Manila District
th
4 Flr. GodinoBldg, Arroceros St.
Ermita, Manila
Tel. No.: 4009755/ 5232030

By:

ATTY. ALBERTO D. RECALDE JR.

Public Attorney II
(Pursuant to R.A. No. 9406)
IBP Life Member Roll No. 015640
IBP O.R. No. 106127; Jan. 9, 2017
Roll Number 65687, June 20, 2016
MCLE Pending Certification

Copy furnished:
BALIAO DENTAL CLINIC and DIAGNOSTIC CENTER INC. /
DRA. JOVITA L. BALIAO
Respondents
504 Arnaiz Ave., cor. Tramo St., Pasay City