Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Quezon City
Before: Hon. Labor Arbiter Ludivina I. Urbina-Taguinod

ARNOLD C. CARLOS,

Complainant,
NLRC Case No. RAB IV-03-
00547-21-L
- versus -

MICROSOFT PHLIPPINES and

MR. ANDRES ORTOLA,

Respondents.

X--------------------X

POSITION PAPER
(for the Complainant)

Complainant, ARNOLD CARLOS, by undersigned counsel, and unto

this Honorable Office, most respectfully states that:

I. TIMELINESS

1. On 18 November 2021, the Complainant, through his counsel,

received an Order of the Honorable Office on the same date, ordering
the Complainant to file his Position Paper within FIFTEEN (15)
DAYS from receipt of the Order.

2. The last day of filing is 03 December 2021.

3. Hence, this Position Paper is timely filed.

Position Paper (Carlos v. Microsoft and Artola), Page 1 of 23

 II. NATURE OF THE CASE

4. This is a case for constructive dismissal seeking for payment of

full backwages and other monthly benefits, 13th month pay,
performance bonus, monetized stock options due, separation pay,
moral and exemplary damages and attorney’s fees.

III. PARTIES

5. Complainant, ARNOLD CARLOS, is of legal age, Filipino,

and a resident of No. 1 Bangkilya Corner Dasdasan Streets, Midtown
Subdivision, San Roque, Marikina City. He may be served with
summons and other necessary processes of this Honorable Office
through its counsel-of-record and authorized representative1, Lim,
Chua, Dave & Cervantes Law Offices, at 5th Floor, Bernmann Center,
28 Quezon Avenue, Brgy. Doña Josefa, Quezon City 1113.

6. Respondent, MICROSOFT PHILIPPINES (“MICROSOFT”),

is a company registered and existing under the Philippine law. It may
be served with summons and other necessary processes of this
Honorable Office at its principal business address at 8th Floor, 6750
Ayala Tower, 6750 Ayala Avenue, Makati City.

7. Respondent, ANDRES ORTOLA (“ORTOLA”), is of legal age,

with business address at 8th Floor, 6750 Ayala Tower, 6750 Ayala
Avenue, Makati City, and is the current country manager of Microsoft
Philippines. He may be served with summons and other necessary
processes of this Honorable Office at his business address above-
mentioned.

IV. STATEMENT OF FACTS

8. Respondent Microsoft is a multinational technology company

specializing on software. Through the years, Microsoft has been one
of the largest computer and productivity software provider not only in
the Philippines, but also across the world.

9. On 01 July 20162, Complainant joined Microsoft Philippines

and was employed as Accounts Lead and Partner Sales Lead.

10. For his position, he was given an annual guaranteed base salary
of PESOS: FIVE MILLION EIGHT HUNDRED SEVENTY FOUR

1 A copy of the Complainant’s Special Power of Attorney executed in favor of Lim, Chua, Dave, & Cervantes
Law Offices is hereto attached as Annex “A”, and is made an integral part hereof.
2 A copy of the Complainant’s Certificate of Employment is hereto attached as Annex “B”, and is made an
integral part hereof.

Position Paper (Carlos v. Microsoft and Artola), Page 2 of 23

 THOUSAND (P 5,874,000.00), exclusive of 13th month, bonus pay,
and other allowances and emoluments3.

11. In addition to his annual salary, he receives the following

compensation/ benefits:

a. 13th month pay equivalent to PESOS: FOUR HUNDRED

EIGHTY NINE THOUSAND FIVE HUNDRED
(P489,500.00);

b. Annual car/ transportation allowance4 equivalent to

PESOS: SIX HUNDRED THOUSAND (P600,000.00)

c. Annual mobile phone/ communication allowance5

equivalent to PESOS: FORTY TWO THOUSAND
(P42,000.00)

d. Annual rice allowance6 equivalent to PESOS: EIGHTEEN

THOUSAND (P18,000.00)

e. Leave credits7
f. Bonus
g. Stock

12. He was thereafter designated as Territory Channels Manager on

01 July 2017. Finally, he was promoted as Small and Medium
Corporate Leader in January 2019.

13. As Small Medium and Corporate Sales Leader, Complainant

was tasked by the Respondent to do the following duties and
responsibilities:

a. Achieve account team quality score for SMC-C and Net

Satisfaction for SMB.
b. Enable sellers to spend >15 hours in customer face time
weekly;
c. Build relationship in the market to provide expertise across
the executive suite of the customers and with partners;
d. Demonstrate evidence of building and landing business and
GTM models for SMC sub-segments that address company
strategy with the constraints of area/sub maturity and
resource limitations;

3 Cf. Annex “B”.

4 A printout of Complainant’s profile from Microsoft’s SAP Program is hereto attached as Annex “C”, and is
made an integral part hereof. Based on monthly car allowance of P50,000.00.
5 A printout of Respondents’ Final Pay Computation is hereto attached as Annex “D”, and is made an integral
part hereof. Based on monthly mobile phone allowance of P3,500.00.
6 Cf. Annex “D”. Based on monthly rice allowance of P1,500.00.
7 Cf. Annex “D”.

Position Paper (Carlos v. Microsoft and Artola), Page 3 of 23

 e. Attain SMC Sub-segment FRA (Field Revenue
Accountability) and cloud mix targets;
f. Retire SMC-C and SMB relevant scorecard metrics;
g. Deliver SMC sub-segment cloud customer adds (MCA,
ACA, DCA) and ACR growth;
h. Achieve co-sell targets, wherein he provides potential
customer/ business leads to Microsoft’s partners/ dealers;
i. Drive sales excellence by ensuring ODC ARM action
recommendations;
j. Land WW SMC strategy and blueprint translation for your
area/sub. Enable seamless cross-team orchestration to
deliver results;
k. Build and maintain a high-performance team;
l. Etc

14. During his close to FIVE (5) years stay with Microsoft, he was
able to consistently perform in accordance with the expectations given
to him. This can be observed from the upward trend of his salary,
bonuses and stock options indicated in his compensation history8.

15. In 2018, when Complainant’s salary level was 63, he was given
an incentive compensation amounting to P1,316,222.00. A month
later, he was awarded stocks equivalent to USD $14,000.00. The next
day he was given a bonus of P1,738,000.00 and a merit amounting to
P73,000.00.9

16. For his exceptional performance, in 2019, he was promoted to

salary level 64, wherein from his original salary of P5,274,275.00, he
was increased to P5,500,00.00. In addition, he was able to receive an
incentive compensation amounting to P2,290,549.00, stock award
equivalent to USD $20,000.00, bonus of P1,809,000.00, and merit pay
amounting to P136,000.00.10

17. Yet again, in 2020, his salary and benefits increased. He

received an incentive compensation equivalent to P3,124,830.00,
stock award with the value of USD $28,000.00, bonus amounting to
P2,467,000.00 and merit pay with an aggregate of P 188,000.00.11

18. To sum up, Complainant was enjoying an average year to year

increase equivalent to 26% in his salaries and emoluments.

19. But things started to change for the Complainant after July
2020, when Respondent Ortola was appointed as his manager.

8 A printout of Complainant’s Compensation History from Microsoft’s SAP Program is hereto attached as
Annex “E”, and is made an integral part hereof.
9 Cf. Annex “E”.
10 Cf. Annex “E”.
11 Cf. Annex “E”.

Position Paper (Carlos v. Microsoft and Artola), Page 4 of 23

 20. Despite his excellent performance, Complainant started to feel
undue discrimination from Respondent Ortola.

21. During Fiscal Year (FY) 2020, for SMB accounts, Complainant
was able to attain 93.80%, with an earnings of P498,555.83. On the
other hand, for MW Cloud Billed Revenue, he was able to attain
140.97%.12

22. Similarly, for first half of FY 2021 alone, he was able to

achieve 101.60% for SMB accounts, and 111.64% for PPI-Azure
Consumed Revenues, which gave Respondents a total of P490,641.92
in earnings.13

23. In fact, in comparison with Respondent Microsoft’s other

regional offices, Philippine SMB and SMC performances is placed on
the top half in terms of ranking.14

24. Thus, it came as a surprise to Complainant when Respondent

Ortola gave him poor marks on his evaluation. Not only was his
evaluation unfounded, but it was also far-fetched.

25. Respondent Ortola began changing targets mid-way, making it

hard for the Complainant and his team to achieve their set goals.
Moreover, he was often easily agitated when it comes to Complainant.

m. Complainant was assigned special projects like Converge

ICT, NICP, AGREA and BPO on July 2020. These are all
new projects and outside the existing programs for the FY
2021 (i.e. 01 July 2020 to 30 June 2021.) These accounts were
just prospects for possible exploration as new source of
revenue streams.15 As prospects, Respondent Microsoft is still
in the stage of gathering sufficient and relevant information to
be able to build a future business relation with the above-
mentioned companies. But surprisingly, these were all taken
into consideration when Complainant was given a poor
performance evaluation. Obviously, the company cannot
expect immediate results considering that 2020 was the Covid
year, and most if not all were working virtually. In reality,
huge accounts, like these companies, take several years before
they materialize, similarly when they bagged the supply of
Office 365 with DepED;

12 A printout of Microsoft SAP Sales Report is hereto attached as Annex “F”, and is made an integral part
hereof.
13 Cf. Annex “F”.
14 A printout of the email correspondence between Earl Ganuelas, Complainant and Respondent Ortola is hereto
attached as Annex “G”, and is made an integral part hereof. Other countries involved in the comparison are Korea, New
Zealand, Singapore, Malaysia, Indonesia, Thailand, and Vietnam.
15 A copy of the Complainant’s Letter to the Microsoft’s HR Officer, Mr. Jan Tanchi is hereto attached as
Annex “H”, and is made an integral part hereof.

Position Paper (Carlos v. Microsoft and Artola), Page 5 of 23

 n. When Complainant was given a new Performance
Improvement Plan, unreasonable metric were imposed16:

b.1. He was tasked to create sufficient pipelines to ensure

future quarters’ performance. Complainant was
required to render 125% Committed Pipeline (CP), and
150% Qualified Pipeline (QP). However, the main
department responsible for this is the Digital Sales
Team which is based in Sydney, Australia. The team
has their own Director and Sales Manager, and they
operate the Tele Account Management for Sales.17
Interestingly, the Head of Digital Sales, John
Hennessy’s requirement for his team was merely to
achieve 75% Committed Pipeline on month 2 of the
quarter, simply because to achieve 125% CP is an
impossible feat. In Complainant’s 4 years stay with
Respondent Microsoft, he had never seen anyone or
any department achieve such metrics whether in the
Philippines or even in other segments.

b.2. He was likewise tasked to reduce the dependency on

growth on accounts like Inspiro, Big Cat, and AIA,
from 75% to less than 50%, by creating growth on
other accounts. It is always the SMC-C’s Global
Strategy to create fewer but deeper connections with
top customers, which is expected to bring in 80% of the
revenue. However, most if not all of the accounts
assigned to SMC-C were affected by the COVID-19
pandemic, and thus prioritized their use of funds to
other projects.

b.3. The Complainant was required to increase seller

productivity to such levels that will position SMC-C
Philippines in the top half of Respondent Microsoft’s
global cluster. But in order to achieve that, each seller
is required to over-achieve by more than 200% in the
second half of year 2020. Again, however, the sales
campaigns and account management is handled and
managed by the Digital Sales Team based in Sydney,
Australia. No matter how well Complainant’s team
perform, they would not be able to achieve the metrics
imposed upon them by Respondent Ortola, because the
Digital Sales Team will only achieve at most 100% of
their metrics as opposed to the required 200% for the
target.
16 A copy of Arnold Carlos’s Performance Improvement Plan executed by Respondent Ortola is hereto attached
as Annex “I”, and is made an integral part hereof.
17 A copy of Respondent Microsoft’s post about Sydney Sales Center is hereto attached as Annex “J”, and is
made an integral part hereof.

Position Paper (Carlos v. Microsoft and Artola), Page 6 of 23

 b.4. Complainant was ordered to improve closing rate to
60% for Quarters 3 and 4 of Fiscal Year 2021, and
maintain such rate as minimum for all subsequent
quarters. In reality, since the time the Complainant
joined Respondent Microsoft in 2016 up to present, the
acceptable closing rate under Microsoft’s Global
Standards is at 35% to maximum of 50%.18 Requiring a
increase to 60% in just 2 quarters is not only beyond
the acceptable global standard provided by Respondent
Microsoft, but impossible to sustain. Nevertheless,
even for the sake of argument that this requirement is
attainable, these metrics do not form part of the job
description of the Complainant as these are within the
duties and responsibilities of the Digital Sales Team.

b.5. Lastly, Complainant was directed to proactively lead

key growth initiatives especially with Converge ICT.
Ironically, he did not assign the account to the
Complainant, but to Mr. Enzo Tanedo.19 In fact,
Complainant was not even made an addressee of the
said email. It was only when Respondent Ortola made a
followup with the former on 08 January 2021 was he
made privy to the directive.

26. Obviously from the foregoing, Complainant was subjected to

Respondent Ortola’s uncalled discrimination and untowardness.

27. Instead of guiding and supporting the Complainant and his

team, Respondent Ortola caused more confusion due lack of clear
goals to work with.

28. This started to take toll both on his mental and physical well-
being. As a consequence, he lost significant weight due to stress and
sleepless nights. Similarly, he lost notable confidence in his self, and
began to doubt his capability to do his work properly.

29. Thus on 10 February 2021, Complainant reached out and

sought the help of Mr. Jan Philippe Tanchi, Respondent’s HR. In his
email20, he voiced out his concerns against Respondent Ortola, to wit:

“Dear Jan,

18 A copy of Respondent Microsoft’s FY21 Role Success Guide is hereto attached as Annex “K”, and is made
an integral part hereof.
19 A copy of Andres Ortola’s email dated 21 December 2020 is hereto attached as Annex “L”, and is made an
integral part hereof.
20 Cf. Annex “H”.

Position Paper (Carlos v. Microsoft and Artola), Page 7 of 23

 I am writing to you to voice out my concern on my Manager,
Andres Ortola. This has been affecting my mental state for the
past few weeks. I trust that this is a safe zone. I took the courage
to this so that it will be properly addressed by Microsoft and
won’t happen to my colleagues.

1. In my last connect for H1, Andres gave me insufficient

results.

• I questioned his evaluation of my performance, He

said that I did not meet FRA for SMC-C which is -
$399k VTB with a YoY growth of -2.3%.

• I told him that my position as SMC Lead covers All

up SMC which is +$526k VTB with YoY growth of
+4.3%. He said that since my quota measurement is
65% SMC-C and 35% SMB, I should be focused on
SMC-C. Since SMC-C posted a -2.3% growth it
warrants me “insufficient results.”

• Andres also wrote in my connect that SMC-C’s

Azure YoY Growth of 34.2% is below Sub
Average. This is not true. In reality this is 3rd
highest in the sub next to SMB (67.6%). All up
SMC Azure Growth is 60.3% as compared to
Enterprises of 25.6%. SMC-C PH was also
recognized in APAC as the 3rd highest ACR growth
in H1.

• My overall quota achievement was 114.7% in H1. I

did very well in ACR which is SMC-C
measurement only of 111.64%. D365 which is
SMC-C only is 221%. All up Cloud in SMB is
102.7% and all products billed is 103.51%. Yes my
Modern Work is only 64.83% in SMC-C where
majority of our customers struggled with budget
due to the pandemic. However, my team and I were
able to maximize as much as we can to deliver
cloud revenue.

• I believe getting insufficient results is an unfair

judgment of my performance.

2. Lack of Clarity on stretch projects

• BPO Project
• NICP
• IBPAP
• AGREA
• Converge ICT
• Everise

Position Paper (Carlos v. Microsoft and Artola), Page 8 of 23

 I have been accused on things with no weak basis, If I try to
reason out with facts, he has a way of twisting the stories. This
affects me emotionally and mentally.

As a leader, I believe in our Management Principles of Model,

Coach, Care. I apply this to my team and I am proud how each
individual is growing and performing. I am an advocate of
Diversity, Inclusion, and Allyship. However, my experience with
my Manager is different.

I love my job, I value my team, and I am a Microsoft fan. I

have grown here as a person and as a manager, I hope this will
be considered and treated by Microsoft HR.“

30. After he extensively raised his concerns and insights with

Respondent Microsoft, he thought that his issues with Respondent
Ortola would be resolved for the better. Little did he know that his
situation in the company would turn for the worse.

31. On 15 March 2021, Respondent Ortola sent the Complainant an

email21, to wit:

“Hi Arnold,

As you are aware, we have been discussing your performance

and business impact for the last couple of months and I have yet
to see significant improvement. This is to formally inform you
that I have initiated a Performance Improvement Plan (PIP) for
you. Please see attached PIP form for your review and
acknowledgment.

I will also set up a meeting with you on Monday, March 22nd

at 9:30 a.m. to discuss the details of this PIP. I would also be
inviting HR in our discussion.

Thank you and talk to you on Monday.”

32. The Complainant was dumbfounded why Respondent Ortola

was not happy with his performance, when in fact his numbers show
that he performed better22 than last year:

SI FRA Enterprise PS EOU

RPH
FY21 FY20 FY21 FY20 FY21 FY20
Philippine 7,171 6,287 4,661 3,977 3,064 2,958

21 A copy of the Defendant Artola’s email dated 15 March 2021, is hereto attached as Annex “M”, and is made
an integral part hereof.
22 A copy of Mr. Earl Ganuelas’ email dated 22 March 2021, is hereto attached as Annex “N”, and is made an
integral part hereof.

Position Paper (Carlos v. Microsoft and Artola), Page 9 of 23

 s

SI FRA SMC SMB Total

RPH
FY21 FY20 FY21 FY20 FY21 FY20
Philippines 9,654 7,017 19,931 37,824 3,437 3,469

SI FRA RPH Total

FRA YoY
Philippines 15%

Segment All-Up Close Rates Committed Upside

FY20- QoQ FY20- QoQ FY20-Q4 QoQ

Q4 Q4
Commercial 73% Up 5% 88% Up 0% 20% Up 7%
Total

33. After a series of justifications, a meeting was held on 22 March

2021, between the Complainant, Earl Ganuelas (Respondent
Microsoft’s HR Consulting Manager - Asia Pacific, and Respondent
Ortola. Thereafter, he was requested to sign and hand over the signed
PIP document the next day.

34. During the meeting, he felt that he was being singled out and
there was no real interest on resolving his issues with his manager
Respondent Ortola. His justifications were likewise not heard and
were clearly resolved to his prejudice. Respondent Ortola’s issuance
of a PIP made it worse for the Complainant as he was prevented from
taking interviews, or being eligible to transfer to another
department/position within the company.

35. Still perplexed with what just happened, Complainant requested

that he be given time to review and decide on the PIP. He was then
required to submit it on 26 March 2021.

Position Paper (Carlos v. Microsoft and Artola), Page 10 of 23

 36. Feeling stuck and hopeless, with no favorable improvement in
sight, Complainant was constrained to file his involuntary
resignation on 26 March 2021.
23

“Hi Andres,

In the past three months, I was bothered by the situation where

you gave me insufficient results in my performance evaluation
for H1 of FY21. This has been continuously affecting my mental
health drastically.

On the contrary, my performance results will show that I have

achieved the expected overall SMC FRA target and even
exceeded it by $522k. I have also achieved the ACR metrics of
both SMC-C and SMB by exceeding the budget by $326k at 61.2
YoY growth and continue to grow further year to date. I have
similarly achieved other key metrics such as cloud mix of 66%
up by 14.2 pts YTD, Teams meetings MAU of 109.5%, Teams
platform MAU of 108.9%, Azure customer add of 100%, Co-sell
partner sharing of 100% and excellent CPE results.

Thus, my quota achievement is 114.7% in H1 FY21 and

consistently overachieving my quota for the past 5 quarters.

I understand that SMC-C segment missed $345k FRA budget for

H1 FY21. But to bounce back, I am working closely with our
Digital Sales Team on the Territory Plan to recover this, since
they are responsible for the demand generation of qualified pipe
and progression to committed pipe. This is the only segment
with a Sales pod that is not reporting to me directly, and I need
to partner with them. We have enough QPC and will continue to
progress CPC with the help of Partner and Marketing team. FRA
forecast for SMC-C for FY21 is +$271k VTB and all up SMC is
+$3.5M.

I strongly believe that I have proven myself as a worthy leader

for the company, because not only did I develop my team for
high performance, it is also noteworthy to point out that two of
them are currently in the top rank, and likewise got special stock
and cash awards, promotions, and even recognitions.

That being said, I don’t agree with the performance improvement

plan and the success criteria that is now being imposed upon me.
Particularly on exceeding budget in both billed and ACR for Q3
and Q4 since we are done submitting our outlook and FRA will
be reached by overdelivering ACR. The other on e is achieving
above 125% CPC, which means getting $2.6M additional
committed pipe, when we can achieve outlook FRA at SMC-C at
90% CPC of billed Ex Azure. This is a team effort with Digital

23 A copy of Complainant’s Resignation Letter dated 26 March 2021 is hereto attached as Annex “O”, and is
made an integral part hereof.

Position Paper (Carlos v. Microsoft and Artola), Page 11 of 23

 Sales, Partner team and Marketing to increase seller productivity.
Moreoverm I was disappointed to find out that it is noted in the
document that I cannot accept nor apply for any position within
Microsoft within the duration of the program, because this
clearly limits my career growth in the company.

Due to the present situation, my disagreement with the new

performance improvement plan, and the constant pressure that
your management is causing my mental and physical health, I
am left with no other choice but to officially file my resignation
as SMC Lead in PH.

This shall serve as my 30-day notice.

Regards

Arnold Carlos
SMC Lead
Microsoft Philippines.”

37. However, in a last effort to save whatever is left of him in the

company, he tried to reach out to Respondent Ortola on two different
occasions, 26 March 2021 and 29 March 2021, but to no avail,
Respondent Ortola failed to give him an audience.

38. Despite receipt of Complainant’s resignation, Mr. Ganuelas

issued the former a Notice to Explain on 29 March 2021, for failure to
sign and submit the PIP, threatening the Complainant that should he
fail to submit a written explanation, he shall be subjected to
disciplinary action, including termination of employment.

39. Respondent Ortola officially accepted Complainant’s

resignation on 29 March 2021, to wit:

“Hi Arnold thanks for the note. I accept your resignation as SMC
lead at Microsoft Philippines.

Thank you for your attempt to discuss before sending this note. I
was not able to connect today on this matter.

I have a deep appreciation for everything you have done for our
company and our team.

Thank you.”

40. After his involuntary separation from work, Complainant was

not given all of the the benefits due him, which includes his
performance bonuses, as well as his monetized accumulated company

Position Paper (Carlos v. Microsoft and Artola), Page 12 of 23

 shares amounting to 406 shares during his tenure with the
Respondents.

41. Moreover, a total P490,641.92 equivalent to the earnings he

was able to contribute during the first half of FY 2021 was deducted
in his last pay24.

42. Hence, this instant case for constructive dismissal with money
claims.

V. ISSUES

43. For the resolution of the Honorable Office are the following
issues:

a. Whether the Complainant was constructively dismissed

from his position as SMC-Lead.

b. As a consequence of his constructive dismissal,

whether the Complainant is entitled to payment of
money claims, which include full backwages, regular
allowances/benefits, performance bonuses, 13th month
pay, and monetized stock options due.

c. Likewise, as a consequence of his constructive

dismissal, whether the Complainant is entitled to
separation pay.

d. Whether the Complainant is entitled to moral and

exemplary damages, and attorney’s fees.

VI. ARGUMENTS AND DISCUSSIONS

THE COMPLAINANT WAS

CONSTRUCTIVELY DISMISSED.
—————————————————

44. Under the circumstances, there is no doubt that the Complainant

is a regular employee of the Respondent. Inherent in his employment
is his right to security of tenure −a right protected by no less than the
Constitution itself. Thus, Complainant’s entitlement to his position in
the company, as well as the seniority rights and benefits that come
with his employment cannot be trampled upon without clear

24 Cf. Annex “D”.

Position Paper (Carlos v. Microsoft and Artola), Page 13 of 23

 indications of the presence of just or authorized causes sanctioned by
the law.

45. Jurisprudence holds that constructive dismissal exists when

there is “cessation of work, because continued employment is
rendered impossible, unreasonable or unlikely[;] as an offer
involving a demotion in rank or a diminution in pay and other
benefits.”25
46. In Torreda v. Investment and Capital Corporation of the
Philippines26, the Supreme Court further discussed:

“Constructive dismissal is an involuntary resignation resorted

to when continued employment is rendered impossible,
unreasonable or unlikely; or when there is a demotion in rank
and/or a diminution in pay. It exists when there is a clear act of
discrimination, insensibility or disdain by an employer, which
makes it unbearable for the employee to continue his/her
employment. In cases of constructive dismissal, the
impossibility, unreasonableness, or unlikelihood of continued
employment leaves an employee with no other viable recourse
but to terminate his or her employment.

By definition, constructive dismissal can happen in any

number of ways. At its core, however, is the gratuitous,
unjustified, or unwarranted nature of the employer's action. As it
is a question of whether an employer acted fairly, it is inexorable
that any allegation of constructive dismissal be contrasted with
the validity of exercising management prerogative.”

47. In determining the existence of constructive dismissal in the

particular situation, the case of Tuason v. Bank of Commerce27 is
instructive:

“The test of constructive dismissal is whether a reasonable

person in the employee's position would have felt compelled to
give up his position under the circumstances. It is an act
amounting to dismissal but is made to appear as if it were not.
Constructive dismissal is therefore a dismissal in disguise. The
law recognizes and resolves this situation in favor of employees
in order to protect their rights and interests from the coercive
acts of the employer.

48. For almost Five (5) years of stay with Respondent Microsoft,
Complainant was happy and was contented with his job. He has not
received any memo on poor performance nor any notice to explain for
25 SME Bank Inc., Et. Al. v. Peregrin De Guzman., Et. Al. G.R. Nos. 184517 and 186641, 8 October 2013.
Emphasis and underscoring supplied.
26 Jonald O. Torreda vs. Investment and Capital Corporation of the Philippines. G.R. No. 229881, 5 September
2018. Emphasis and underscoring supplied.
27 Michelle T. Tuason vs. Bank of Commerce, Et. Al. G.R. No. 192076, 21 November 2012. Emphasis and
underscoring supplied.

Position Paper (Carlos v. Microsoft and Artola), Page 14 of 23

 any infraction of company rules. As a result, he was performing
superbly, passing each and every evaluation conducted by Respondent
Microsoft.

49. As discussed above, during Fiscal Year (FY) 2020, for SMB
accounts, Complainant was able to attain 93.80%, with an earnings of
P498,555.83. On the other hand, for MW Cloud Billed Revenue, he
was able to attain 140.97%. Comparably, for first half of FY 2021
alone, he was able to achieve 101.60% for SMB accounts, and
111.64% for PPI-Azure Consumed Revenues, which gave
Respondents a total of P490,641.92 in earnings. In fact, from July
2019 until June 2021, Complainant’s attainment is 128.1%, with total
incentive earnings given to Respondent Microsoft equivalent to
P4,890,794.0028.

50. Consequently, from a salary grade 63 in 2018, he was upgraded

to salary grade 64 in 2019, and then given additional remunerations in
2020.

51. However, things turned south for Complainant, when

Respondent Ortola joined the company in July 2020 and became his
superior.

52. He was given new clients/ ventures to work on, which the
Complainant has either no experience with or he knows for a fact has
no sufficient business to contribute to his team’s overall sales
performance.

53. The unfavorable conditions did not stop there, he was also
imposed with higher quota requirements and additional metrices
despite knowledge by Respondent Ortola that they were new clients/
ventures.

54. Plain from the foregoing, he was placed in a position in which

he was destined to fail. Despite such handicap, he strived and was able
to produce great results, if not satisfactory.

55. All told, in comparison with Respondent’s other regional

offices, Philippine SMB and SMC performances are placed on the top
half in terms of ranking29.

56. Complainant was surprised when he was given a poor

evaluation rating by his superior, Respondent Ortola. Moreover, he
was the only one, among his peers, who was subjected to scrutiny.

28 Cf. Annex “F”.

29 A copy of SMB Q3 All Up Growth is hereto attached as Annex “P”, and is made an integral part hereof.

Position Paper (Carlos v. Microsoft and Artola), Page 15 of 23

 Notwithstanding the fact that his peers failed to achieve their quota
requirements30.

57. The constant discrimination experienced from Respondent

Ortola, coupled with his ever changing and increasing quota
requirements, deeply affected the Complainant, both mentally and
physically.

58. Complainant began to lose significant weight because of

countless sleepless nights, worrying that both his career and earnings
might be jeopardized if he fails to achieve the ridiculous targets
demanded from him. Similarly, even if he knew that Respondent
Ortola’s quotas were implausible and unfair, he pushed himself to
overwork, just to be able to meet the latter’s expectations. This
contributed to the dwindling of his overall health.

59. His stress and frustrations on how Respondent Ortola was

handling him and his team can be gleaned from his email 31 to the HR
dated 10 February 2021. His aim for reaching out was to inform
Respondent company what conditions are like in the SMC
Department and under Respondent Ortola.

60. Complainant expected that his frustrations would be heard, and

changes would then be implemented in his department.

61. One month later, Complainant received an email from

Respondent Ortola informing him that the latter was not seeing any
signs of improvement, and that Respondent is issuing him a
Performance Improvement Plan (PIP).

62. A meeting then ensued between and among the Complainant,

Respondent Ortola, and Mr. Earl Ganuelas, HR Consulting Manager
for Respondent Microsoft. But the meeting proved to be one-sided
from the get-go. No real changes were concluded. Instead,
Complainant was cornered and was thereby required to just sign and
accept the PIP by 26 March 2021.

63. Furthermore, the PIP prevented him from being able to leave
the department and apply for a new position within the company.

64. Feeling stuck with his current manager, with no changes

occurring soon, Complainant was forced to turn-in his resignation.

30 A copy of the FRA Outlook dated 05 April 2021 is hereto attached as Annex “Q”, and is made an integral
part hereof.
31 Cf. Annex “H”.

Position Paper (Carlos v. Microsoft and Artola), Page 16 of 23

 65. Guided by the above-quoted case law, it is clear that
Complainant’s case falls squarely within the ambit of constructive
dismissal.

COMPLAINANT IS ENTITLED TO
PAYMENT OF FULL BACKWAGES,
PERFORMANCE BONUSES, UNPAID
PORTION OF HIS 13TH MONTH PAY,
AND THE SUM EQUIVALENT OF HIS
VESTED STOCKS.
—————————————————

66. According to the Labor Code32:

“[a]n employee who is unjustly dismissed from work shall

be entitled to… his full backwages, inclusive of
allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation was
withheld from him…”.

67. Because the Complainant was constructively dismissed, he is

entitled to payment of his full back wages from the time of his
severance from employment in April 2021, until the same is fully
paid. However, due to strained relations with the Respondent’s
management, reinstatement may no longer be feasible in this case.

68. During the time of his employment, Complainant was receiving

a total salary of P498,500.00 per month.

69. Moreover, as Respondent’s SMC Lead, part of the

Complainant’s regular benefits are:

o. Transporation Allowance equivalent to P50,000.00 per

month;
p. Communication Allowance equivalent to P3,500.00 per
month;
q. Rice Allowance equivalent to P1,500.00 per month;
r. Leave Credits equivalent to 11.47 days or P267,360.2233

70. In addition, Complainant was given Cash Bonuses for Revenue

Based Incentives and Commitment Based Incentives. Such bonus
increases as his team’s performance exceeds its expected targets. For
the past 3 years, Complainant was receiving an average of

32 Article 279, PD No. 442, as amended.

33 Cf. Annex “D”.

Position Paper (Carlos v. Microsoft and Artola), Page 17 of 23

 P981,283.84 as Cash Bonus for Revenue Based Incentives, and
P2,004,666.68 for Commitment Based Incentives34.

71. However, since his constructive dismissal on April 2021, these

were not fully given to the Complainant.

72. Complainant is likewise entitled to receive the remaining

portion of his 13th month pay for the year 2021. If he was not unduly
constructively dismissed, he would have obtained the remaining
potion of his 13th month pay.

73. Finally, as part of his regular benefits for his employment with
the Respondent, the Complainant was regularly allocated shares of
stock in the company35. Were it not for Complainant’s constructive
dismissal, he would have 30 shares that would vest on 31 May,
another 69 shares on 15 August, and 306 shares after 15 August 2021,
with a total of 405 shares. These shares fetch an equivalent amount of
$340 per share with the current exchange rate of P50.00 per $1.00.

74. As a consequence of Complainant's constructive dismissal, he is

entitled to the payment of the above enumerated money claims.

COMPLAINANT IS ENTITLED TO
SEPARATION PAY FOR HIS
CONSTRUCTIVE DISMISSAL.
—————————————————

75. Other than the payment of full back-wages, a constructively

dismissed employee is likewise entitled to separation pay if
reinstatement of the employee is no longer viable36.

76. As discussed above, due to strained relations with the

management which created an unsuitable and antagonistic work
environment, Complainant’s reinstatement to his former position is no
longer plausible.

77. And since reinstatement is no longer viable under the

circumstances, the Complainant is entitled to payment of separation
pay equivalent to a month’s full compensation for every year of
service.

34 A copy of Complainant’s Reward History is hereto attached as Annex “R”, and is made an integral part
hereof.
35 Copies of Complainant’s SAP Dashboard on Stock Vests from August 2016 to August 2020, and
Complainant’s Settlement Computation are hereto attached as Annexes “S” and “T”, and are made integral parts
hereof.
36 Robinsons Galleria/Robinsons Supermarket Corporation v. Ranchez. G.R. No. 177937, 19 January 2011.

Position Paper (Carlos v. Microsoft and Artola), Page 18 of 23

 COMPLAINANT IS ENTITLED TO
PAYMENT OF MORAL AND
EXEMPLARY DAMAGES AND
ATTORNEY’S FEES.
—————————————————

78. In view of the Respondents’ acts which led to Complainant’s

constructive dismissal, and consequently, his loss of employment and
income, he suffered mental anguish, serious anxiety, besmirched
reputation, wounded feelings, sleepless nights and social humiliation
entitling him to moral damages in the conservative sum of PESOS:
ONE MILLION (P 1,000,000.00).

79. To serve as an example for the public good, and to deter others
who might be similarly minded as the Respondents from committing
the same acts, the company should be made liable to pay exemplary
damages in the conservative sum of PESOS: ONE MILLION (P
1,000,000.00).

80. Finally, to vindicate his rights, the Complainant was

constrained to litigate and engage the services of counsel. Thus,
Respondent should be held liable to pay attorney’s fees in the amount
of PESOS: FIVE HUNDRED THOUSAND (P 500,000.00).

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of

the Honorable Office to:

b) DECLARE Complainant’s separation from work as a case of

Constructive Dismissal; and

c) DIRECT the Respondent to pay the Complainant the following

amounts:

b.1) P498,500.00 per month, until fully paid by way of

backwages;

b.2.) P50,000.00 per month of transportation allowance,

which form part of his regular benefits;

b.3) P3,500.00 per month of communication allowance,

which form part of his regular benefits;

b.4) P1,500.00 per month of rice allowance, which form

part of his regular benefits;

Position Paper (Carlos v. Microsoft and Artola), Page 19 of 23

 b.5) The unpaid pro-rated 13th month pay for the remaining
months of 2021;

b.6) Leave credits equivalent to 11.47 days or P267,360.22

b.7) P2,985,950.52, equivalent to his average annual cash

bonuses for revenue based incentives and commitment
based incentives;

b.8) $101,853.45 (U.S. Dollars), or its equivalent in

Philippine Pesos, for the 405 awarded stock options by way
of monetized stock options due to him;

b.9) P498,500.00 for every year of service by way

separation pay;

b.10) P1,000,000.00 by way of moral damages;

b.11) P1,000,000.00 by way of exemplary damages; and

b.12) P500,000.00 by way of attorney’s fees.

Other relief and remedies just and equitable under the premises are
likewise prayed for.

RESPECTFULLY SUBMITTED.

02 December 2021. Quezon City.

LIM, CHUA, DAVE & CERVANTES

LAW AND ACCOUNTING OFFICES
Counsel for the Complainant
5th Floor Bernmann Centre
No. 28 Quezon Avenue,
Brgy. Doña Josefa, Quezon City. 1113
Tel. No. (02) 8253-9568, Loc. 121
lcdc@lcdlawoffices.com

By:

ROBERT JAY T. LIM

Roll No. 66035
IBP No. 154705, 22 January 2021, Quezon
PTR No. 9847426, 12 January 2021, Manila City
rjl@lcdlawoffices.com
MCLE No. VI-0016768 13 December 2018

Position Paper (Carlos v. Microsoft and Artola), Page 20 of 23

 JAMES MICHAEL T. CHUA
Roll No. 66076
IBP No. 154704, 22 January 2021, Makati City
PTR No. 8550363, 13 January 2021, Makati City
jmc@lcdlawoffices.com
MCLE No. VI-0016729, 13 December 2018

RUTH G. CERVANTES
Roll No. 69342
IBP No. 018108, Makati
PTR No. 8550364; 13 January 2021, Makati City
rgc@lcdlawoffices.com
MCLE No. VI–0006292, 22 September 2017

DIKKO JAY C. PEREZ

Roll No. 63722
IBP Lifetime Roll No. 015208, 20 June 2016, Q.C.
PTR OR No. 0699776D, 8 January 2021, Q.C.
dikkojayperez@gmail.com
MCLE No. VI-0030375, 20 February 2020

EXPLANATION37

Due to time constraints, lack of available personnel, and the distance

involved, a copy of this Position Paper is hereby served upon the
Respondents and filed unto the Honorable Office via registered mail.

JAMES MICHAEL T. CHUA

COPY FURNISHED:
ANA ROSARIO N. PADUA
RODRIGO BERENGUER & GUNO
37 Kindly disregard if the preferred mode of service and/or filing was resorted to.

Position Paper (Carlos v. Microsoft and Artola), Page 21 of 23

Counsel for the Respondents
Suite 1517, 15th Floor, AIC Burgundy Empire Tower
ADB Avenue Corners Garnet and Sapphire Roads,
Ortigas Center, Pasig City

MICROSOFT PHILIPPINES
Respondent
8th Floor, 6750 Ayala Tower,
6750 Ayala Avenue
Makati City

MR. ANDRES ORTOLA

Respondent
8th Floor, 6750 Ayala Tower,
6750 Ayala Avenue
Makati City

REPUBLIC OF THE PHILIPPINES )

CITY OF _____________________ ) S.S.

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

I, ARNOLD CARLOS, after having been duly sworn to in accordance

with law, hereby depose and state that:

2. I am the Complainant in the above-entitled case.

3. I have caused the preparation of this Position Paper.

4. I have read and understood the contents thereof and that the allegations
therein are true and correct based on my own personal knowledge and
based on authentic records.

5. I have not commenced any action or proceedings before any court,

tribunal, office, agency involving the same party and cause of action, and
to the best of our knowledge, no such action or proceeding is pending
therein. Should I learn that any such action or proceeding is pending
before any court, tribunal, office, or agency, I undertake to inform this
Honorable Office within FIVE (5) DAYS from knowledge thereof.

IN WITNESS WHEREOF, I have hereunto set my hand this _____

day of ____________, 202___, at ______________ City.

Position Paper (Carlos v. Microsoft and Artola), Page 22 of 23

 ______________________________
ARNOLD CARLOS

ACKNOWLEDGMENT

SUBSCRIBED AND SWORN TO BEFORE ME this _____ day of

_______________, 202__, at ________________ City. The Affiant has
presented to me the following proof of his identity.

Name Gov’t. I.D. No. Date of Issuance or

Expiry
ARNOLD CARLOS

KNOWN TO ME to be the same person who executed this Verification and

Certificate of Non-Forum Shopping, this _______ day of _______________,
202____, at _________________ City.

____________________________
NOTARY PUBLIC
Doc. No. ______
Page No. ______
Book No. ______
Series of 2021.

Position Paper (Carlos v. Microsoft and Artola), Page 23 of 23