Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region

______________________
Complainant,

- versus - NLRC Case No. 00-05-04994-07

______________________,
Respondents.
x-----------------------x

R E J O I N D E R

Complainant, by themselves, unto this Honourable Labor Arbiter,

most respectfully submits this Rejoinder and avers that:

PREFATORY STATEMENT

In the matter of employment bargaining, there is no doubt

that the employer stands on higher footing than the employee. First
of all, there is greater supply than demand for labor. Secondly, the
need for employment by labor comes from vital and even desperate
necessity. Consequently, the law must protect labor, at least, to the
extent of raising him to equal footing in bargaining relations with
capital and to shield him from abuses brought about by the
necessity of survival. (Sanchez, et al. vs. Harry Lyons Construction,
Inc., et al., G.R. No. L-2799, October 19, 1950, 40 O.G. 605)

ISSUES

I
WHETHER HEREIN COMPLAINANTS WERE CONSTRUCTIVELY
DISMISSED AMOUNTING TO ILLEGAL DISMISSAL AND WHETHER
COMPLAINANT IS ENTITLED
TO ALL HIS MONEY CLAIMS APPURTENANT TO ILLEGAL
DISMISSAL

DISCUSSIONS
 I

Respondents allege in their Reply to Complainant’s Position

Paper that complainant JOSE BUNAGAN is not illegally dismissed nor
constructively dismissed as shown by his Affidavit marked and annexed
as ANNEX “G” of respondent’s position paper. This allegations are lies
which tends to mislead the Honorable Labor Arbiter. The truth of the
matter is that, due to the heavy demand for deliveries of respondents and
due to the lack of Motorcycle Messengers on April 18, 2007 complainant
JOSE BUNAGAN was asked by herein respondents to accommodate
them and to sideline temporarily for the Respondents. And because
complainant’s last assignment with the respondent was on September
2006 and due to his financial difficulty complainant was forced to accede
to the request of the Respondent and acceded to deliver on a sideline
basis for that day. Clearly, under the fact and circumstances that is not an
assignment to consider as it was not on a regular basis but merely on a
temporary and side line basis, thus, complainants last assignment under
the present circumstance was still on September 2006. As admitted by
the respondents in their position paper, complainants were upto present
not given any work assignment as they are having difficulty in finding a
work assignment for them. Clearly, more than six months have passed
from the time they were given their last work assignment thus resulting
into their constructive dismissal. There is no reason why herein
complainant’s would not accept any work assignment from herein
respondents as these are the only means for them to feed themselves
and their family.

Respondent’s likewise allege that they have even given one of the
son of the complainants a work assignment. But this would not disprove
the fact that herein complainants were not given any work assignment
since September 2006.

Respondents also allege that it is herein complainants who are no

longer interested to return to their work as manifested in the minutes of
the hearing held on June 27, 2007. At the time of the alleged hearing on
June 27, 2007, more than six months have already lapsed from the time
herein complainants have been given their last work assignment, thus
amounting to their illegal dismissal. Complainants may have opted not to
return back to work because a case has already been filed against herein
respondents and they are afraid that respondents might not treat them
fairly due to the case filed by them. If respondents are really trying to help
herein complainants and they are in good faith in offering them new work
assignments why did not include in their manifestation a clear place of
new assignment for the complainants. It is clear that respondents are
merely trying to lure back herein complainants so that if ever they
accepted their offer, respondents would now find a way in dismissing
herein complainants based on the alleged complainant against
complainants for poor performance of their duties. Furthermore,
respondents also alleged in its position paper of infractions of herein
complainants which is clearly contrary to respondents allegations that
complainants were not dismissed from their regular work assignments. If
in fact complainants were not dismissed form their service why is there a
need to cite alleged infractions of herein complainants?

Article 279 of the Labor Code provides that “In cases of regular
employment, the employer shall not terminate the services of an
employee except for a just cause or when authorized by this Title.”

Article 282 of the Labor Code, which sets forth the so-called just
causes, provides that “an employer may terminate an employment for any
of the following causes- a) serious misconduct or wilful disobedience by
the employee of the lawful orders of his employer of representative in
connection with his work; b) gross and habitual neglect by the employee
of his duties; c) fraud or wilful breach by the employee of the trust
reposed in him by his employer or duly authorized representatives; d)
commission of a crime or offense by the employee against the person of
his employer or any immediate member of his family or duly authorized
representative; e) other causes analogous to the foregoing.

Furthermore, In the case of Royal Crown Internationale vs. NLRC,

G.R. No. 78085, October 16, 1989, the Supreme Court held that “in
termination cases, the burden of proof rests upon the employer to
show that the dismissal is for just and valid cause. Failure to do so
would necessarily mean that the dismissal was not justified and,
therefore, was illegal. Hence, it is incumbent upon herein
respondents to prove that herein complainants dismissal was for a
just and valid cause.

In the case at bar, both complainants are on a floating status

since their last assignment ended on September 2006 and from that
time up to present, complainants were not given any work assignment. As
such complainants were constructively dismissed amounting to their
illegal dismissal without them clearly knowing the ground or grounds for
thier termination. As regular employees of herein respondent,
complainants are entitled to security of tenure and can only be removed
from their employment for a just and/or authorized causes under the law.

Moreover, Article 283 of the Labor Code allowing employers to

terminate the employment of its employee/s due to authorized causes will
not come into play in the instant case because there was not an instance
in which any of the authorized causes occurred in relation to the dismissal
of complainant.

In view of the foregoing a clear case of illegal dismissal was

committed by respondents. Such, Article 278 of the Labor Code
provides that “An employee who is unjustly dismissed from work
shall be entitled to reinstatement without loss of seniority rights and
other privileges and to his full backwages, inclusive of allowances,
and to his other benefits of their monetary equivalent computed
from the time his compensation was withheld from him up to the
time of his actual reinstatement.”

Nevertheless, assuming arguendo that complainants were

dismissed by respondents with a just or authorized cause, the dismissal
was still without compliance with either due process requirement for
just cause or authorized cause.

The Labor Code and its Implementing Rules also requires not
only the existence of just or authorized causes in dismissing an
employee but also the observance of due process before the actual
dismissal takes place. This due process requirement for just causes is
the act of the employer of furnishing the employee of a written
notice requiring the employee to explain AND a written notice of the
fact of separation or termination. For authorized causes, it is required
of the employer to furnish the employee and the Department of Labor and
Employment a written notice at least one (1) month before the intended
date of termination.

In the case at bar, complainants did not receive any notice why
they were not given any work assignment, when in fact they can be
assigned to BANCO DE ORO, the new client of respondents. A clear
non-compliance with the due process requirement of the law for just or
authorized cause termination.

Hence, as held in the case of Agabon vs. NLRC, et al., G.R. No.
158693, November 17, 2004 “ Where the dismissal is for a just cause,
as in the instant case, the lack of statutory due process should not nullify
the dismissal or render it illegal or ineffectual. However, the employer
should indemnify the employee for the violation of his statutory rights, as
ruled in Reta vs. NLRC, 232 SCRA 613 xxx The sanction should be in
the nature of indemnification or penalty and should depend on the facts of
each case, taking into special consideration the gravity of the due process
violation of the employer. Under the Civil Code, nominal damages is
adjudicated in order that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or recognized, and not for
the purpose of indemnifying the plaintiff for any loss suffered by him. xxx
The violation of petitioner’s right to statutory due process by the
private respondent warrants the payment of indemnity in the form of
nominal damages. The amount of such damages is addressed to the
sound discretion of the court, taking into account the relevant
circumstances.” (Emphasis ours)

As held in the case of Agabon vs. NLRC, et al., G.R. No.

158693, November 17, 2004 “Even where the employee must allege
non-payment, the general rule is that the burden rests on the
employer to prove payment, rather than on the employee to prove
non-payment. The reason for the rule is that the pertinent personnel
files, payrolls, records, remittances and other similar documents-
which will show the overtime, differentials, service incentive leave
and other claims of workers have been paid- are not in the
possession of the worker but in the custody and absolute control of
the employer.”
As to payment of Separation Pay

As held in the case of Commercial Motors Corporation vs.

Commissioners, 192 SCRA 191 when there is a resultant atmosphere
of antipathy and antagonism or strained relations of irretrievable
estrangement between the employer and the employee, the award of
separation pay is more proper. Therefore if reinstatement will no longer
be viable, it is further prayed that complainants be given their separation
pay in lieu of reinstatement.

As to payment of Service Incentive Leave

The applicable rule with respect to Service Incentive Leave is

Article 95 of the Labor Code, which provides the following:

Art. 95. Right to service incentive leave.

 (a) Every employee who has rendered at least
one year of service shall be entitled to a yearly service
incentive leave of five days with pay.
(b) This provision shall not apply to those who are
already enjoying the benefit herein provided, those
enjoying vacation leave with pay at least five days and
those employed in establishments regularly employing less
than ten employees or in establishments exempted from
granting this benefit by the Secretary of Labor after
considering the viability or financial condition of such
establishment.
(c) The grant of benefit in excess of that provided
herein shall not be made a subject of arbitration or any
court or administrative action.
(Italics and underline supplied)

As to Non-Payment of 13th month pay

Presidential Decree No. 851, as amended by Memorandum Order

No. 28, dated August 13, 1986 mandates all employers to pay their rank-
and-file employees a 13th month pay not later than December 24 of every
year.

Complainants not receiving the benefits of the 13th month pay from
his employer the RESPONDENTS entitles her to such award. As held in
the case of Agabon vs. NLRC, et al., G.R. No. 158693, November 17,
2004 “Even where the employee must allege non-payment, the
general rule is that the burden rests on the employer to prove
payment, rather than on the employee to prove non-payment. The
reason for the rule is that the pertinent personnel files, payrolls,
records, remittances and other similar documents-which will show
the overtime, differentials, service incentive leave and other claims
of workers have been paid- are not in the possession of the worker
but in the custody and absolute control of the employer.”

Reimbursement of Cash Bond

Herein complainant is entitled to the reimbursement of their ash

bond which are being deducted from their monthly salary from the time
they were first employed with an agreement with the respondents that
said cash bond would be returned when their employment is severed.

Payment of Moral and Exemplary Damages

Herein complainants are entitled to Moral and Exemplary

damages. The reason being that Moral and Exemplary damages are
recoverable when the dismissal of an employee is attended by bad faith,
fraud, an act oppressive to labor, or if the dismissal was done in a manner
contrary to good morals, good customs or public policy. (Equitable
Banking Corporation vs. NLRC, June 13, 1997).

It is clear that the dismissal of complainants were effected in an

oppressive, and malevolent manner not having been given the
required thirty day WRITTEN notice of dismissal and no just and/or
authorized cause is shown.

WHEREFORE, premises considered, it is most respectfully prayed

unto this Honourable Office that the judgment be rendered declaring the
dismissal of complainants as illegal and ordering the respondents to pay
all the money claims.

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

City of Manila for Quezon City, Philippines. ________________.