Republic of the Philippines

COURT OF APPEALS
Manila

MONALISA B. CLARION,
Petitioner,

-versus- CA GR SP NO.152033

NATIONAL LABOR RELATIONS

COMMISSION (2nd Division), GEMPHIL
TECHNOLOGIES INC./GAMALIEL C.
LINO, MYRNA V. BARTOLOME,
Respondents.

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MEMORANDUM

Respondents GEMPHIL TECHNOLOGIES INC., GAMALIEL C. LINO

and MYRNA BARTOLOME, through the undersigned counsel and unto this
Honorable Court of Appeals most respectfully submit the following and
aver:

Respondent’s counsel changed her address to :

#184 Camia St. San Jose Village 2, Binan City, Laguna.

It is thus prayed that all notices, resolutions and other court pro-
cesses be sent to the counsel’s new address.

PREFATORY STATEMENT
"An employee’s propensity to commit repetitious infractions evinces wrong-
ful intent, making him undeserving of the compassion accorded by law to
labor." (JERRY MAPILI vs. PHILIPPINE RABBIT BUS LINES, INC./NA-
TIVIDAD NISCE, G.R. No. 172506, July 27, 2011)

THE PETITION FOR CERTIORARI

Complainant-Petitioner Monalisa B. Clarion ascribed the following

grounds on her petition for certiorari”

a. That the Second Division of the National Labor Relations Commission

committed grave abuse of discretion amounting to lack of jurisdiction in
ruling that Complainant was validly dismissed (albeit without concluding
which just cause under the Labor Code).
b. That NLRC committed grave abuse of discretion amounting to lack of ju-
risdiction in ruling that Petitioner is not entitled to reinstatement, full
back wages and damages.

ATTACHMENTS

A cursory examination of the list of attachments to the Complainant’s

Petition for Certiorari left one important pleading unsubmitted. Complainant
failed to submit her Rejoinder but Respondent did file its Rejoinder. Thus,
we are hereby submitting the:
a. Annex “1” - copy of Respondents’ Rejoinder

NATURE OF THE CASE

This case was originally filed as an illegal suspension case. After the
occurrence of a supervening event, Complainant subsequently amended
her complaint to include illegal dismissal as the principal cause of action.

Complainant MONALIZA B. CLARION prays that her twelve day (12)

suspension be declared illegal and eventually, her dismissal as unlawful.
Corollary to this are her prayer for the payment of money claims, reinstate-
ment, damages and attorney’s fees.

THE PARTIES

Respondent GEMPHIL TECHNOLOGIES, INC. (GEMPHIL for

brevity) is a corporation duly registered under the laws of the Republic of
the Philippines. Its principal place of business is located at LISP I, #7 West
Road, Barangay Diezmo, Cabuyao City, Province of Laguna.

Individual Respondents GAMALLIEL C. LINO and MYRNA BAR-

TOLOME are impleaded in their official capacity as the President and Fi-
nance Officer of GEMPHIL TECHNOLOGIES, INC. .

Summons, orders, resolutions and other processes of this Honorable

Court may be served upon the herein Respondents at their principal office
and through the address of the undersigned counsel at #184 Camia St.
San Jose Village II, Biñan City, Laguna.

MONALIZA B. CLARION, was a former employee of GEMPHIL. She

may be served with Summons, orders, resolutions and other processes of
this Honorable Office at Block 1 Lot 24,25, Multiland IV, Brgy. San Isidro,
Cabuyao City, Laguna or through her counsel Atty. Napoleon Banzuela at
this office address stated.

BRIEF RESTATEMENT OF FACTS

I. THE RESPONDENT COMPANY

GEMPHIL TECHNOLOGIES, INC. (GEMPHIL for brevity) is a domes-

tic corporation accordingly registered under Philippines laws, a one hun-
dred percent (100%) Filipino corporation.

GEMPHIL is an electronic company engaged in manufacturing wide

array of wiring harnesses, heater wires, power supply cords, over
moulded cable assemblies, degaussing coils, cable wires, PVC tubes, ex-
truded plastic parts other electrical components for home appliances, con-
sumer electronic, office equipment, computer, motorcycle and automotive
industries. Recently, GEMPHIL ventured into the production of compo-
nents of wind turbines and heart pacemakers.
 Basically, these products are exported for sale to various customers
in other countries.

II. THE COMPLAINANT

Complainant MONALIZA B. CLARION was hired by Respondent

GEMPHIL as a Production Specialist on February 12, 1997 and was ini-
tially assigned at the Tinning Section of the Production Department of
Gemphil.

III. NARRATION OF RELEVANT FACTS

a. PRE-EMPLOYMENT REQUIREMENTS

All GEMPHIL job applicants undergo rigorous interview and screen-

ing after which, new hirees are required to submit appropriate documents
before assumption of duties for their respective positions.

New employees are mandatorily required to attend company orienta-

tion seminar to acquaint them of the nature of business of the company, in-
troduce them with the various heads of departments and their respective
superiors, inform them of the organizational structure and appraise them of
the code of conduct and discipline.

This is with the end view of enforcing appropriate conduct to ensure

harmonious work relations between fellow employees and their respective
superiors with the ultimate aim at maximizing productivity for the company.
 All employees are accorded a copy of Code of Conduct and Disci-
pline (COCD for brevity). COCD enumerates the list of behavior consid-
ered to be deviations from the norms expected from employees such as
absences and tardiness, neglect of duty, misconduct, offenses against
company property, IT related offenses, offenses against environment,
health safety and security, sexual harassment, use of dangerous drugs,
and other offenses with the appropriate sanctions and disciplinary action on
the mentioned offenses.

Complainant Monaliza B. Clarion was hired sometime in February

1997 as a Production Specialist, she underwent company orientation as
required and was accorded her own copy of the Company Code of Con-
duct and Discipline (COCD). Copy of the Company Code of Conduct and
Discipline is appended and made integral part of Respondents’ Position
Paper as Annex "1". Clarion attended the company orientation and was
accorded a copy of the COCD, proof of this is her receipt thereof and at-
tendance during the orientation, copies of which were appended and made
integral part of Respondents’ Position Paper as Annexes "2" and "3".

b. COMPLAINANT’S WORK HISTORY

From the Tinning Section, Complainant was transferred to the Wind-

ing Section of the Production Department. After evaluation and failing to
meet productivity standard, she was returned to her previous assignment at
the Tinning Section.
 Complainant Monaliza B. Clarion was also elected as an officer of
GEMS. GEMS stands for GEMPHIL Employee Management Synergy, a
labor management council which is a form of grievance machinery where
there are six (6) representatives from the management and six (6) repre-
sentatives from the rank and file employees. It regularly conducts a meet-
ing once a month where concerns and grievances of the employees are
discussed and are brought to the attention of the management for immedi-
ate action.

Whatever concern or complaint employees have, these are brought

to the attention of the GEMS officers who are tasked to address them the
soonest possible time. Attached herewith is the GEMS organizational
structure with the corresponding names and pictures of the designated offi-
cers as Annex "4 “, Respondents’ Position Paper. In addition thereto it is
also significant to mention that Complainant Clarion was also the head of
the 5S committee.

c. CIRCUMSTANCES SURROUNDING THE ISSUE

For a time in August, 2015, the oven used for curing components of
GEMPHIL products of was located at the hallway of the factory was trans-
ferred to the Tinning Section. Curing is part of the tinning process and the
transfer was made to lessen the walking time of the personnel bringing the
parts to the oven for drying and curing.
 On August 5, 2015, Complainant Monaliza B. Clarion posted a status
in her Facebook account in relation to the transfer of the oven. This status
elicited various reactions and counter reactions from her Facebook friends.
Print screen copy of the said Facebook status posted and the various reac-
tions are hereto appended and made integral part of Respondents’ Posi-
tion Paper as Annexes " 5 and series".

Another employee, Tereslyn De Los Reyes publicly commented on

Clarion's status together with other friends of herein Complainant.

Clarion’s post elicited various comments which later constituted a

long thread of comments and thread from former Gemphil employees,
Facebook friends of Clarion, Clarion herself and De Los Reyes.

In the thread of comments, Gemphil was depicted as a company

without due regard to the health and safety of employees. That its officers
were not concerned about its workers.

Complainant Clarion’s post came to the knowledge of the Respon-

dent company and for such reasons, a notice to explain was given to herein
Complainant on August 12, 2015, copy of which was attached to the Re-
spondents’ Position Paper as Annex "6". Tereslyn De Los Reyes was
similarly given an order to explain.

Complainant submitted her written explanation and requested for an

administrative hearing, see Annex “7”, Respondents’ Position Paper.
 Respondent company called for an administrative hearing on Sep-
tember 11, 2015 which Complainant Clarion and Tereslyn De Los Reyes
attended. Both were assisted by a paralegal, Esteban Mendoza. Copy of
the invitation for the administrative hearing was appended to Respon-
dents’ Position Paper as Annex “8" while minutes of the administrative
hearing as Annex "9"

After the investigation, Respondent Company through a memoran-

dum meted Complainant Clarion a penalty of suspension for 12 working
days from September 29 until October 12, 2015, copy appended to Re-
spondents’ Position Paper as Annex "10". , Tereslyn De Los Reyes was
similarly suspended, but for a shorter duration.

For this reason, Clarion filed a case for illegal suspension.

After serving her suspension, Complainant returned to work and in

early in the morning of October 26, 2015, Clarion distributed leaflets in
blue paper. Two (2) employees named Arlyn San Jose and Melanie Cana,
received leaflets from the Complainant.

Distribution of printed materials without the prior consent and ap-

proval of the management is a violation of Letter D on Misconduct item
number 22 of the Code of Conduct and Discipline. Copy of the materials
distributed by Clarion was appended to Respondents’ Position Paper as
Annex "11".
 Upon learning, a Notice to Explain was given to herein Complainant
dated October 27, 2015 (Annex "12") to which she responded through a
written explanation dated October 28, 2015 (Annex “13”), Respondents’
Position Paper .

During the time when the notice to explain (regarding the distribution
of printed materials without securing the proper permission) was about to
be served unto the herein Complainant, she was called to the office of Ms.
Zaide Mendoza, Senior Human Resource Supervisor at around 10:00 a.m.
Forty minutes after leaving her post at the Tinning Section, Complainant’s
immediate superior noted that she has not returned to her workplace. This
prompted Complainant's immediate superior to check on the whereabouts
of the Monaliza B. Clarion.

In response thereto, Zaide Mendoza, tried to ascertain where Ms.

Clarion went and discovered that she was still at the Accounting Office. At
this instance, Ms. Mendoza reminded the Complainant to return to her post
and accompanied her from the Accounting Office to the corridors of the
second floor.

In a loud voice, herein Complainant responded "Eh di downtime"

catching the attention of other office personnel and managers whose of-
fices were similarly located on the same floor.

This incident led employees and managers who heard someone

walking along the corridors to ascertain what was happening outside their
offices. Some made an effort to walk towards their office doors to take a
look at what was happening while others actually went to the corridor to
know what had happened.

For this reason, Complainant was given two (2) notices to explain in
relation to the charges for loitering during work time and disrespectful be-
havior towards superior, Annexes "14 and 15” while Complainant’s expla-
nation for the two notices in a single document was marked as Annex “16”,
Respondents’ Position Paper.

After a thorough review of the incidents and the conduct of an investi-

gation, Respondent, through a letter terminated the Complainant from ser-
vice effective November 16, 2015, Annex "17".

V. ARGUMENTS AND DISSCUSSION

V.1. COMPLAINANT’S INFRACTIONS

A. THE FACEBOOK POSTS

A close examination of her comments and reactions to posts would
give the public a negative impression on how GEMPHIL treats its employ-
ees.

Through social media, a status or post can produce uncontrollable

perceptions. The topic of the thread of conversation was how GEMPHIL
treats its employees which GEMPHIL was not able to respond to nor cor-
rect whatever imputations the persons who commented on the Facebook
post of Clarion had.

Although there is such a thing as the freedom of expression, the

same cannot be exercised without limitations. The freedom of speech
must be exercised in such a manner that it should be used with great
circumspection so as not to destroy reputation, integrity and charac-
ter of individuals or business entities, for that matter.

Moreover, as an officer of GEMS, Clarion is expected to bring her

concern to the attention of the management through the grievance machin-
ery rather than resort to the use of social media which can produce uncon-
trollable misconceptions about the company. With the public posting of
grievances and posting comments in the thread of reactions, the company
is not accorded a fair chance to defend itself and explain its side on the
matter.

A close examination of Complainant Clarion's Facebook account

shows that she has six hundred sixty six (666) friends Annex “18”, Respon-
dents’ Position Paper.

In the advent of social media, information is easily disseminated. Sta-

tuses and comments made are posted at a click and these can be easily
read and viewed by anyone. Its effect are far reaching -- defies territorial
boundaries as the information super highway connects people located far
across the globe at the snap of a finger.

The absence of malicious intent is no defense. The post and com-

ments already evinced and imputed that Respondent company had no con-
cern for its workers.

The mere posting thereof produces uncontrollable conceptions

or misconceptions in the minds of the people who saw and read them.
This does not accord Respondent Gemphil an opportunity to defend itself
or correct the misconceptions or generalization created upon reading the
same.

Posting of statuses and comments through Facebook is not just as

simple as what is commonly perceived. It produces both positive and
harmful effects far reaching than one can imagine. Regardless of one's
motive for posting the same, the Facebook account owner, must own up
to the consequences of their actions.

To illustrate, Complainant Clarion has 666 Facebook friends. All the

666 friends could have read her posts and comments and that of her
friends. All the friends of her friends who liked or commented on the post
and comment can see or have seen the same. See Annex "18” where Clar-
ion's numbers of friends are reflected on her Facebook wall.

Without counting the friends of friends of the herein complainant,

these people have read how Complainant depicted Gemphil in her account.
We may never know what conclusion these 666 people arrived at against
Gemphil.

The impressions created by these people, either for or against

Respondent GEMPHIL can no longer be undone. We can only sur-
mise that even GEMPHIL customers have come across Clarion's post
and the reaction drawn by her Facebook friends.

B. DISSEMINATION OF LEAFLETS
C. LOITERING AND DISRESPECTFUL BEHAVIOR TO A SUPERIOR

After serving her suspension, in the morning of October 26, 2015,

Complainant Monaliza B. Clarion distributed leaflets in blue paper to her
fellow workers which included Arlyn San Jose and Melanie Cana, re-
ceived leaflets from the Complainant.

It is against the company rules to distribute printed materials without

the prior consent and approval of the management. Specifically, it is a vio-
lation of Letter D on Misconduct item number 22 of the Code of Conduct
and Discipline. Copy of the materials distributed by here in Complainant is
hereto appended and made integral part hereof as Annex "11".

For this, she was given a Notice to Explain dated October 27, 2015
(Annex "12") to which she responded through a written explanation dated
October 28, 2015 (Annex "13") .
 To serve the Notice to Explain, Ms. Zaide Mendoza, Senior Human
Resource Supervisor, called the Complainant to her office. Forty (40) min-
utes after leaving her post at the Tinning Section, Complainant has not re-
turned to her post which fact was noticed by her immediate superior lead-
ing her to check on the whereabouts Clarion. She called HR and learned
that Clarion already left the office, Zaide Mendoza, also tried to ascertain
where Ms. Clarion went and discovered that she was still at the Accounting
Office.

At this juncture, Ms. Mendoza reminded the Complainant to return to

her post and accompanied her out of the Accounting Office to the corridors
of the second floor leading to the Tinning section.

In a loud voice, Complainant responded "Eh di downtime" catching

the attention of other office personnel and managers whose offices were
similarly located on the same floor.

Complainant’s loud response to Ms. Mendoza prompted employees

and managers who heard someone walking along the corridors to ascertain
what was happening outside their offices. Upon the other hand, Ms. Men-
doza felt she was disrespected by the manner Complainant replied to her
reminder.

For this reason, Complainant was given two (2) notices to explain in
relation to the charges for loitering during work time and disrespectful be-
havior towards superior, Annexes "14 and 15”, Respondents’ Position Pa-
per, while Complainant’s explanation is contained in Annex "16".
 The Disciplinary Action dated November 13, 2015 addressed to Com-
plainant Clarion (see Annex "17") clearly reveals that for the short period
from August to November 2015, she was found to have committed the
successive acts. Misconduct is defined as an improper or wrong conduct.
It is a transgression of some established and definite rule of action, a for-
bidden act, a dereliction of duty, willful in character, and implies wrongful in-
tent and not mere error in judgment. (Caltex (Philippines), Inc. v. Agad,
G.R. No. 162017, April 23, 2010, 619 SCRA 196, 2130.)

To constitute a valid cause for the dismissal within the text and mean-
ing of Article 282 of the Labor Code, the employee’s misconduct must be
serious, i.e., of such grave and aggravated character and not merely trivial
or unimportant.

Apart from the three (3) most recent infractions of the herein Com-
plainant, Respondent took into consideration her entire record in here years
with the company.

Let us revisit how Clarion is as a worker, a co-worker, a subordinate,

as an officer of GEMS.

V.2. COMPLAINANT’S EMPLOYMENT RECORD

A. CLARION AS A CO-WORKER
 Clarion was assigned at the Tinning Section of the Production De-
partment where she spends work time of eight (8) to ten (10) hours per
day for five (5) or six (6) days a week depending on whether she is on a
compressed work schedule, twenty six (26) days or twenty two (22) days a
month, twelve (12) months a year with her co-workers in the same position
as hers who works on other tinning processes but similarly considered to
belong to the Tinning Process.

Let us examine what Teresita Obstaculo, a co-worker from the same

section in the same department as herein Complainant and what she had
to say about Clarion in her Sinumpaang Salaysay, appended to the Re-
spondent's Position Paper as Annex "24" and we quote:

" 3. Sa loob ng dalawang taong ito, masasabi ko na kakilala ko

na si Monaliza B. Clarion bilang isang empleyado at kasama-
han sa trabaho;
4. Sa linya namin sa Tinning, may tatlong (3) uri ng trabaho,
ang pre-tin, non-pdi at semi cron;
5. Upang maseguro na derederecho ang proseso, ang mga
empleyado ay pumapasok ng tatlong (3) shifts -- 6:00 a.m. to
2:00 p.m. , 6:00 a.m. to 4:00 p.m., at 2:00 p.m. to 10:00 p.m.;
6. Ang lahat ng empleyado sa Tinning Department at nagpa-
palit-palit at nagrerelyebo sa nasabing shifts upang tuloy tuloy
ang production maliban kay MONALIZA B. CLARION;
7. Lahat po kami sa Tinning ay sumusunod sa schedule na ib-
inibigay sa amin at nakakaranas na pumasok sa tatlong shifts
na nabanggit maliban kay MONALIZA CLARION na ayaw
sumunod sa ibinibigay na shift ng aming Line Leader at
Supervisor at tahasang sinasabi na ayaw nya ng ibang shift
 maliban sa pang -umagang pasok dahil ang idinadahilan niya
ay walang magbabantay sa anak nya;
8. Ang pagtanggi ni MONALIZA CLARION ay nagsimula
noong 2014 kayat kami na lamang pong empleyado maliban sa
kanya ang nag-iikutan ng shift;
9. Naging usapin ito at issue sa pagitan naming dalawa at ng
ibang manggagawa ng Tinning Department. Ang ibang mang-
gagawa ay hindi naglakas ng loob na ipaalam ang kanilang sa-
loobin dahil natatakot sila kay MONA dahil matapang ito.
10. Upang maiwasan ang pagpaparinigan na pagsisimulan ng
away, kami na lamang ang sumusunod sa schedule dahil kata-
pangan ni MONALIZA CLARION ;
11. Isa pang patunay na hindi nakikipag-cooperate si MONA
ay ang pamimili niya ng prosesong kanyang gagawin sa Tin-
ning;
12. Ang lagi lang niyang ginagawa ay ang pre-tin na pinakasim-
ple at pinakamagaang na proseso sa aming departamento. Sa
pre-tin, ang quota per hour ay 55 samantalang sa tinning a 250
pcs per hour.
12. Ayaw po niyang gumawa ng iba na dapat sana ay hati-hati
kaming lahat para lahat ay may gagawing madali, lahat ay ha-
hawak ng mabusisi. "

From a co-worker who works in the same room and section as Clar-
ion, Teresita Obstaculo stated how inconsiderate herein Complainant is to
her co-workers. She refuses and continuously refused to abide by the
work schedule given her and merely insisted and reported to the sched-
ule she desired. She is unabashed, shameless that even if all others fol-
low the work schedule given to them, she has the temerity to feel
unashamed of her hard headedness.
 Complainant chooses the easiest process in their section while all
others work on other more difficult processes or stages of tinning. Aren't
these indications of grave behavioral problem of selfishness?

B. COMPLAINANT AS A SUBORDINATE

When she was given a notice to explain sometime in February 2014

for neglect of duty and insubordination, Clarion in her written explanation
dated February 26, 2014 had this to say:

"Ito ang mga kasong ibinaba sa akin, ibig ko lang ipaalam

sa kinauukulan at bahagi na rin ng kasagutan sa ibinabang
kaso sa akin na wala akong nilabag, sinusuway at hight wa la-
hat wala akong pinabayaang gawain dahil ginagampanan ko
ang aking tungkulin bilang manggagawa at kung ano ang tra-
baho ko.
Nagkataon lang na gusto akong gawing 2:00 p.m. to
10:00 p.m. ng aking line leader pero di ako pumayag dahil sa
kadahilanang walang mag-aasikaso o mag-iintindi sa mga anak
ko kung gagawing 2-10, at iyan ay aking ipinaliwanag ng per-
sonal sa aking line leader ng ako ay kanyang kausapin bago pa
ipa-implement ang nasabing oras ng aking pagpasok. Pero
nanaig pa rin sa kanya ang pansariling interes at kagustuhan
na gawin akong 2-10 hindi niya isina-alang alang and ka-
pakanan ng kanyang taohan, bagkus kinasuhan nya pa ako."
(see copy of Clarion's written explanation Annex “21”, Respondents’ Posi-
tion Paper).

In a subsequent explanation dated March 10, 2014 explanation, copy

of which is Annex “22" of Respondents’ Position Paper, on her unwilling-
ness to abide by the work schedule given to her by her immediate superior,
Clarion said:

" Ito ang araw na kung saan sinabi ng aking line leader
na 2-10 ang pasok ko pero hindi ako nag 2-10 dahil nga sa sit-
wasyon ko, at sinabi ko sa line leader ko na hindi ako puedeng
mag 2-10 dahil walang mag aasikaso ng anak ko, kaya sa halip
na 2-10 ay pumasok na lamang ako ng 6-4 , at nang kausapin
ako ng HR naunawaan nila ang sitwasyon kung bakit hindi ko
sinunod yong shift schedule na itinalaga sa aking ng aking line
leader.
Pero hanggang sa ngayon ay hindi ko maintindihan kung
bakit kailangan pa nila ulit ako bigyan ng explanation letter
samantalang malinaw na nalaman na nila ang aking dahilan
kung bakit hindi ko nasunod ang schedule na sinabi ng verbal
sa akin, bukod sa explanation letter na ibinigay ko sa kanila ay
meron pang personal na pagharap sa HR para sa mas malinaw
na pagsasabi ng aking rason. At malinaw lang na talagang
hindi kayo marunong makaintindi dahil kung marunong
kayong umintindi hindi nyo na kailangan pang magbaba
ulit ng panibagong explanation letter dahil wala din naman
kayong inilalabas na memu para sa nasabing change shift
schedule kaya hindi na dapat pa akong babaan ng kaso na
unauthorized change of shift schedule dahil personal na
nga akong nakausap ng mas mataas ang katungkulan sa
inyo. At saka dapat, kapag kayo'y nagbibigay ng kaukulang
kaso within 3 days dapat maibigay agad ito dahil kung tutuusin
ang ibinigay nyo sa akin na kaso ay paso na at wala nang
saysay dahil isang linggo nang mahigit ang nakalipas bago
ninyo ito ibinigay sa akin. Kung ako lang ang masusunod hindi
kona sana dapat sagutan ito dahil wala nang saysay. At dapat
wala ding sanang ikinaso sa akin na neglect of duty at insubor-
dination dahil walk naman akong nilabag at pinabayaang tra-
baho pero ibinigay parin sa akin yong kaso at nagbigay ay ang
line leader. Wala namang nakasaad sa batas o sa labor
code na puedeng magbigay ng kaso ang isang line leader
sa isang manggagawa sapagkat ito ay isang ordinaryong
manggagawa din lamang na kagaya ko. Tanging ang man-
ager, supervisor o superior lamang ang may karapatang
 makapagbigay o makapagbaba ng kaujulang kaso sa isang
manggagawa.
Kaya sana sa susunod at magkakameron ng change shift
schedule siguraduhin nyo na meron kayong mailabas na memu
na magpapatunay na may change schedule hindi yong verbal
lang na sasabiin sa mga tao at sapilitang papipirmahin ang
mga tao para magchange shift, maging pormal at legal sana
ang pagsasabi ng shift schedule para hindi magkameron ng
problema sa mga tao.”

Apart from being disrespectful in her words and deeds, Com-

plainant Clarion was noted to be uncooperative. There are times when
exigency demands that all employees are obliged to render overtime work.
There was never an instance when Complainant Clarion acceded to work
over time. Complainant's immediate superior, Cynthia Acosta, Line
Leader at the Tinning Section, in her sworn statement, narrated:

"o. Sa mga panahong may pangangailangan na mameet ang

quota para makapagship out ng produkto, kailangang obligahin
ang mga manggagawa na mag-over time work. Sa mga gani-
tong pagkakataon, hindi maaasahan ang kooperasyon ni
MONALIZA B. CLARION upang pagtulung-tulungan na matu-
gunan ang pangangailangan ng kumpanya."
copy of her Sinumpaang Salaysay is Annex “23”, Respondents’ Position
Paper.

While all employees work or rotated shift, meaning they get to work
on three shifts for a particular periods -- 6:00 a.m. to 2:00 p.m. , 6:00 a.m.
to 4:00 p.m. and 2:00 p.m. to 10:00 p.m., Complainant Monaliza B. Clarion
refused to abide. Only Complainant Clarion, stands firm on working
at her chosen shift, 6:00 a.m. to 4:00 p.m..
 All GEMPHIL production employees are rotated to various sections to
teach them other jobs. Cross training has been a company policy to create
well rounded workers who can take on different jobs at different sections.

Complainant Clarion had been transferred to the Winding Section for

a time. In the Winding Section, she consciously refused to learn the
process for her to be returned to the Tinning Section ultimately. See
Sinumpaang Salaysay of Jeanny Redecilla, Production Supervisor attest-
ing to Clarion's unwillingness to be assigned to other section, Annex
“25" Respondents’ Position Paper which narrated:

" 5. At dahil dapat malaman din ng bawat manggagawa

ang ibang processes, may mga pagkakataon na nililipat sila sa
ibat ibang proseso. Mahilig siyang magreklamo pag nililipat
siya ng ibang process.
6. Dapat may cross training (ang cross training ay pag-
bibigay ng kasanayan sa isang bagong proseso), hindi siya
nagpeperform upang hindi sya mag qualify at hindi siya maalis
sa Tinning.
xxx...xxx
8. Kapag may bagong process na itinuturo, inuuna nya ang
reklamo."

Redecilla further observed how Clarion is in the workplace, and nar-

rated that:

"4. Mahirap siyang pasundin sa mga instructions, kahit naipali-

wanag na ang instruction, may mga pagkakataong ipinipilit
Nina kung ano ang gusto niyang gawin ang trabaho kahit hindi
ito ang work instruction.
xxx...xxx
 7.Kapag wala ang Line Leader nya, paikot-ikot sya sa area at
malimit na wala sa kanyang upuan at nakikipagkwentuhan sa
mga kasamahan. Madalas na late syang pumasok sa produc-
tion at late din sa Start of the Shift (SOS) meeting."

C. COMPLAINANT AS AN OFFICER OF GEMS

Clarion is the head of 5S committee, 5S is a system of workplace

organization that uses a list of
five Japanese words: seiri, seiton, seiso, seiketsu, and shitsuke. Translated
into English, they all start with the letter "S". The list describes how to orga-
nize a work space for efficiency and effectiveness by identifying and storing
the items used, maintaining the area and items, and sustaining the new or-
der. The decision-making process usually comes from a dialogue about
standardization, which builds understanding among employees of how they
should do the work.

With reference to standardization and sustaining the new order, it

means that employees are expected to consciously follow the rules, and
enforce them to the point that it becomes a habit.

Clarion as the head of 5S committee’s principal task is to make the

employees follow the rules and regulations of the company. To make the
employees abide, she must be the first to follow the rules and show them
that she sets a good example and must be emulated.
 Clarion as an officer of GEMS and she should have known bet-
ter that employees complaints must be channeled through the proper
grievance procedure available in the company and not through other
means.

It is further aggravating for Complainant Clarion as the head of

the 5S committee to violate the company rules and regulations when
she should be the first to set a good example of obedience.

It bears stressing that contrary to her task as the head of the 5S com-
mittee of GEMS, she denies the existence of the rule that dissemination of
printed material without the consent of the management. Instead, she justi-
fies her act that she sees nothing wrong in what she has done. Clarion
was oblivious of the rules and regulations of the company.

With this she explicitly showed that she does not recognize the au-
thority of the management to instill discipline and the reciprocal obli-
gation of the employees to obey the rules. Rules are intended to create
order in the workplace. It defines the parameters of the rights of workers
and employees alike aimed at creating a harmonious system in the work-
place.

Priscilla Bautista, the GEMS President had this to say about Com-
plainant Clarion:

" f. Sa buong taon kong panunungkulan sa lahat ng meeting ng

GEMS kada buwan, dalawang beses lamang umattend si
 Mona. Sa dalawang beses na pagdalo nya, matapos ang 30
minuto, ay umaalis na siya kahit hindi pa tapos ang pagpupu-
long.
g. May mga programa at activities na inilalatag ang GEMS para
sa mga manggagawa kagaya ng pagkakaroon ng Zumba ses-
sion para as aming physical fitness mua Pebrero hanggang
Marso 2015, company outing noong May 2015 at Sports fest
noong July 2015.
h. Maging sa mga activities, hindi gaanong nakikipagtulungan
si Mona kahit atasan pa ito ng tungkulin. Kailangan pa siyang
laging pilitin upang gumalaw at tugunan ang kanyang
tungkulin."
copy of her Sinumpaang Salaysay, Annex “25”, Respondents’ Position Pa-
per.

D. COMPLAINANT AS A WORKER

Complainant Monaliza B. Clarion's uncooperative behavior has

been noted not only by other co-employees but of her superiors as well. In
fact, during the periodic performance evaluation for January to December
2012 and January to June 2013, she has be observed:

"with attitude problem."

copies of the Performance Appraisals are appended Annexes "26 and

27”, Respondents’ Position Paper.

Employees and workers are not only expected to be productive.

They work in an environment where they get to mingle with their co-work-
ers and employees. The worker is mandated to establish good working re-
lations with her peers. There are times when she will be requested to take
the shift of other employees or even work double shift if the circumstances
dictates due to exigency of service. On the other hand, there are times
when she can request her co-worker for a favor for a change shift. The
work environment must evince symbiotic relationship among the employ-
ees. No employee can exist without cooperating with her fellow employ-
ees. No employee can survive the workplace if she merely insists on what
she wants.

Workers have to abide by the orders and instructions from their su-
periors. Work instructions are given to them which varies on the product
they currently produce and as the client dictates. The worker has no choice
nor discretion but to follow the work instructions for a given product as to
the manner by which it shall be produced. She cannot just insist on the
procedure that is convenient for her or she is well versed of in coming up
with the product assigned to her.

Sometime in November 17, 2014, Complainant Clarion was given a

notice to explain for not following work instruction. Copy of the Demand for
Explanation is appended as Annex “28”, Respondents’ Position Paper.

Each worker is provided with a work instruction for a specific product.

Prior to the start of work, all workers are called to attend an orientation as
to the manner of accomplishing their respective task. Apart from this, a
tangible work instruction print out is posted in front of each worker's work
station. For this specific product, it was thoroughly explained during the ori-
entation that no flux shall be applied. In the work instruction, there was
nothing mentioned as to the use of flux but complainant Clarion insisted
otherwise and used flux. The use of flux although it produces the same
outcome, results in more rejects and wastage, hence, the specific instruc-
tion on not to use flux.

In the same notice to explain, Clarion's immediate superior, Geraldin

Delmo, Line Leader noted the following at the back portion thereof as An-
nex "28-A" that:
"Sa ating SOS meeting, paulit-ulit ko kayong nireremind
na sumunod kung ano ang nakasaad sa ating WI. Kung moron
ma kayong mungkahi para sa ikagaganda ng gawa ay dapat
muna ninyo itong ikonsulta sa amin bgo nyo ito gawin.
Paulit-ulit ko rin ipinaaalala sa inyo na kapag may na-
oberserbahang hindi tama ay dapat ninyong ireport sa amin.
Sa kabila nito ay pinili ninyong gawin ang bagay na hindi
nakasaad sa WI.
Inirerekomenda ka na bigyan ka ng "warning" dahil sa
hindi mo pagsunod sa iyong superior."

In her explanation, Clarion explained:

"Ginamitan namin ng flux para sa mas mabilis na pag-
gawa, dahil hinahabol namin ang target na hinihingi ninyo sa
amin, kahit wala kayong sinasabi na instruction sa amin at para
makapagdeliver sa date na kailangan ng customer."

copy of her explanation is appended as Annex “29”, Respondents’ Posi-

tion Paper.

Workers cannot just take the rules of the company and orders from
their superiors for granted. To do so would negate the employers the right
to discipline its employees and to prescribe the manner on how to particu-
larly instruct workers to accomplish their job.
 V.3. THE ABOVE ENUMERATED GROUNDS TAKEN ALTOGETHER
WERE USED AS BASIS FOR THE MANAGEMENT DECISION
TO FINALLY DISMISS THE COMPLAINANT

The just causes are enumerated in Article 282, of the Labor Code of
the Philippines provides:

Article 282. 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 connec-
tion 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 his
family or his duly authorized representative; and
(e) Other causes analogous to the foregoing.

The Disciplinary Action dated November 13, 2015 addressed to Com-

plainant Clarion (see Annex "17") clearly reveals that for the short period
from August to November 2015, she was found to have committed the fol-
lowing acts:

a. At 6:12 p.m. August 5, 2015 in the Facebook account of

MONALIZA BERNAL CLARION you posted false, defamatory
or malicious statemet against the company, its officials or em-
ployees which elicited various reaction from a number of indi-
 viduals. For this reason, you were meted out a twelve day sus-
pension from work.
b. On October 26, 2015, you distributed leaflets without the
prior consent and approval of management.
c. On October 27, 2015 at around 10:00 a.m. you were called
to report to the office of Ms. Zaide M. Mendoza, Senior Human
Resource Supervisor and immediately after receiving the order,
you abided. Minutes after leaving your workplace, your immedi-
ate superior noted that you have not returned to your post
prompting her to ascertain your whereabouts. Ms. Zaide M.
Mendoza discovered that you were at the Accounting Depart-
ment, hence, she reminded you to return to your post. Along
the corridors of the second floor, you responded to Ms. Men-
doza "oo, eh di downtime na lang" in a loud voice when your at-
tention was called, which caught the attention of the other man-
agers whose offices were similarly located on the same floor.
This constitutes showing willful disrespect on the honor of a su-
perior or any official of the company.

Misconduct is defined as an improper or wrong conduct. It is a trans-

gression of some established and definite rule of action, a forbidden act, a
dereliction of duty, willful in character, and implies wrongful intent and not
mere error in judgment. (Caltex (Philippines), Inc. v. Agad, G.R. No.
162017, April 23, 2010, 619 SCRA 196, 2130.)

To constitute a valid cause for the dismissal within the text and mean-
ing of Article 282 of the Labor Code, the employee’s misconduct must be
serious, i.e., of such grave and aggravated character and not merely trivial
or unimportant.

Apparently, the successive acts of the complainant taken altogether

constitute serious misconduct that justifies her dismissal. Complainant with-
out the feeling of remorse due to her earlier suspension had the temerity to
defy another company rules and regulations by distributing leaflets during
office hours which time should be intended for a productive endeavor. From
then on she made actuations to challenge the patience of the company the
last of which when she answered her Supervisor in a disrespectful manner.

The Respondents deemed it necessary to review the Complainant’s

work record and unearthed how she is as a worker, as a co-worker, as a
subordinate, and an officer of GEMS plus took consideration of her most
recent infractions from August 2015 to November 2015.

With the foregoing, Complainant Clarion exhibited incorrigible

work behavior. She recognizes no rules despite being elected as the
5S Head of GEMS, defies orders from her superior, manifested insen-
sitivity to her co-employees, refuses to cooperate, insists on how she
wants to accomplish her task, stubborn, rebellious and seditious. Fi-
nally for the last three months, she has defamed the company using
the social media, distributed leaflets without securing permission
from the management, and disrespected a superior.
 Based on these considerations, taken together with her other of-
fenses, GEMPHIL had compelling reasons to conclude that the Com-
plainant has become unfit to remain in its employ.

In the case of Merin v. MRC, G.R. No. 171790, October 17, 2008,
569 SCRA 576, the Court ruled that in determining the sanction imposable
to an employee, the employer may consider and weight his other past in-
fractions, thus:

"The totality of infractions or the number of violations committed

during the period of employment shall be considered in deter-
mining the penalty to be imposed upon an erring employee.
The offenses committed by petitioner should not be taken
singly and separately. Fitness for continued employment can-
not be compartmentalized into tight little cubicles of aspects of
character, conduct and ability separate and independent of
each other. While it may be true that petitioner was penalized
for his previous infractions, this does not and should not mean
that his employment record would be wiped clean of his infrac-
tions. After all, the record of an employee is a relevant consid-
eration in determining the penalty that should be meted out
since an employee's past misconduct and present behavior
must be taken together in determining the proper imposable
penalty. Despite the sanctions imposed upon petitioner, he con-
tinued to commit misconduct and exhibit undesirable behavior
onboard. Indeed, the employer cannot be compelled to retain a
misbehaving employee, or one who is guilty of acts inimical to
its interests. It has the right to dismiss such an employee if only
as a measure of self-protection. "
 In the words of then Associate Justice Ma. Alicia Austria-Martinez
in Philippine Long Distance and Telephone Company, Inc. v. Balbas-
tro G.R. No. 157202, 28 March 2007, 519 SCRA 233, :

"While it is true that compassion and human considera-

tion should guide the disposition of cases involving termination
of employment since it affects one's source or means of liveli-
hood, it should not be overlooked that the benefits accorded to
labor do not include compelling an employer to retain the ser-
vices of an employee who has been shown to be a gross liabil-
ity to the employer. The law in protecting the rights of the em-
ployees authorizes neither oppression nor self-destruction of
the employer. It should be made clear that when the law tilts
the scale of justice in favor of labor, it is but a recognition of the
inherent economic inequality between labor and management.
The intent is to balance the scale of justice; to put the two par-
ties on relatively equal positions. There may be cases where
the circumstances warrant favoring labor over the interests of
management but never should the scale be so tilted if the result
is an injustice to the employer. Justitia nemini neganda
est (Justice is to be denied to none)."

In further justifying the use of the totality of conduct rule, the

Supreme Court ruled in the case of Cosmos Bottling Corp. v. NLRC, 346
Phil. 127, 134-135 [1997] that:

“We find the penalty of dismissal from the service reason-

able and appropriate to Buguat’s infraction. Her repeated negli-
gence is not tolerable; neither should it merit the penalty of sus-
pension only. The record of an employee is a relevant consider-
ation in determining the penalty that should be meted out.
Buguat committed several infractions in the past and despite
the warnings and suspension, she continued to display a ne-
glectful attitude towards her work. An employee’s past miscon-
duct and present behavior must be taken together in determin-
ing the proper imposable penalty.”
 This is reinforced by the declaration in the case of Valiao vs. Court
of Appeals where it was held that:

“The totality of infractions or the number of violations committed

during the period of employment shall be considered in deter-
mining the penalty to be imposed upon an erring employee.
The offenses committed by him should not be taken singly and
separately but in their totality. Fitness for continued employ-
ment cannot be compartmentalized into tight little cubicles of
aspects of character, conduct, and ability separate and inde-
pendent of each other. “

Finally, in the case of Agabon vs. NLRC, G. R. No. 158693, Novem-

ber 17, 2004, 442 SCRA 573, it was ruled that:

“The law imposes many obligations on the employer such as

providing just compensation to workers, observance of the pro-
cedural requirements of notice and hearing in the termination of
employment. On the other hand, the law also recognizes the
right of the employer to expect from its workers not only good
performance, adequate work and diligence, but also good con-
duct and loyalty. The employer may not be compelled to con-
tinue to employ such persons whose continuance in the service
will patently be inimical to his interests.”
The Complainant spent almost two decades of her work life with the Re-
spondent company. The latter expects not only good performance, adequate work
diligence but more importantly good conduct and loyalty. Complainant, however,
displayed the opposite.
 SHE HAS BECOME OBLIVIOUS OF THE RULES, DEFIANT OF WORK IN-
STRUCTIONS AND INSISTED ON DOING HER WORK IN THE MANNER SHE DESIRES,
REFUSED TO COOPERATE WHEN THE COMPANY NEEDED HER TO RENDER
OVERTIME, REFUSED TO GO TO WORK ON A SHIFT SHE DIDN’T WANT, AND EVEN
SHOWED BLATANT DISRESPECT IN WORDS AND DEEDS TO HER SUPERIOR.
Her length of service should not be used as a badge or a passes to violate com-
pany rules and regulations and it should not shield her from dismissal.

PRAYER
Wherefore, premises considered it is most respectfully prayed that the Honorable
Court dismiss the Complainant’s petition and affirm the findings of the National Labor Rela -
tions Commission.
Other reliefs equitable under the premises are similarly prayed for.
Binan City, Laguna for Manila, March 12, 2018.

EMILLIE GEMANIL-ESPINA
Counsel for Respondent Gemphil Tech. Inc.
PTR 7196912 Trece Martires, Cavite
IBP LRN 07684, 12.11.2007
MCLE Comp. No. V-0008117, May 4, 2015, Cebu
Attorney’s Roll No. 48117

#184 Camia St. San Jose Village 2

Binan City, Laguna

EXPLANATION

In compliance with Section 11, Rule 13 of the 1997 Rules of Civil Pro-
cedure, copies of the foregoing COMMENT were filed and served to the
concerned parties through registered mail due to time and distance con-
straints and no office messengers making personal service thereof imprac-
ticable.
 EMILLIE GEMANIL-ESPINA

Copy furnished:

ATTY. NAPOLEON BANZUELA

B3 Lot 9 Sta. Rosa de Lima Subd.
Brgy. Ibaba, Sta. Rosa City
4026

NATIONAL LABOR RELATIONS COMM.

Second Division
PPSTA Bldg. Banawe
Quezon City