Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. VI
Iloilo City

AGATON A. SALCEDO, REYNALDO

VILLAN,CLEMENT A. DIMAMAY,
and CLAUDIO H. ABELLON JR.,
Complainants

Versus NLRC RAB CASE NO. VI-05-50158-17

Labor Arbiter:
Hon. Rodrigo P. Camacho

DBPSC SECURITY AGENCY INC./

ATTY. EDGAR CHAVEZ,
President of SSI
Respondents

POSITION PAPER FOR THE COMPLAINANTS

COMPLAINANTS, through the undersigned, and unto this Honorable

Labor Arbiter most respectfully state by way of Position Paper:

(1)
STATEMENT OF THE CASE

The complainants, AGATON A. SALCEDO, REYNALDO VILLAN,

CLEMENT DIMAMAY, and CLAUDIO ABELLON JR., cited the
following causes of action, to wit:

a. Constructive Illegal Dismissal

b. Non-payment of:
1. Separation Pay
c. Damages:
1. Moral and Exemplary
d. Attorney’s Fees
(2)
BRIEF STATEMENT OF THE FACTS

Complainants were employees of DBPSC Security Service

Incorporated (hereinafter referred to as Respondent DBPSC SSI for
brevity).

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 Complainants are all Filipino, of legal age, and residents of Antique
and may be served with the court’s orders, decisions and other
communications at the following addresses:

Complainant
1. AGATON A. SALCEDO
2. REYNALDO VILLAN
3.CLEMENT A. DIMAMAY
4.CLAUDIO H. ABELLON, JR.
Address
Brgy. Bugarot, San Jose, Antique
Hillside, Bagumbayan, San Jose,
Antique
Bagumbayan, San Jose, Antique
Piape 3, Hamtic, Antique

Their area of last assignment was in DBP-Antique Branch as security

guards with a salary rate of P298.50/day at the time of their termination.
Their periods of employment with DBPSC SSI are as follows:

Complainant Date of Hiring Date of Duration of

Termination Employment
1. AGATON A. SALCEDO February 1, 1990 December 6, 2016 26 years and 10
months
2. REYNALDO VILLAN August 31, 1992 December 6, 2016 24 years 8 months
3.CLEMENT A. DIMAMAY January 1998 December 6, 2016 19 years
4.CLAUDIO H. ABELLON, JR. December 4, 1997 December 6, 2016 20 years

Respondent DBPSC SSI is a security agency duly organized and

existing under Philippine laws with its principal office located at 2 nd floor
EBC Building, Gil Puyat Avenue Corner Makati Avenue, Makati City.
Respondent ATTY. EDGAR CHAVEZ, is its President.

On November 26 and 27, 2016 the Complainants were all called by

their Area Manager for a meeting to.

During the meetings they were informed of the following:

1. Respondent DBPSC SSI’s manifested intention of not renewing

their contracts permanently with the Development Bank of the
Philippines;

2. Complainants were induced and encouraged to resign with

the promise that they will be given SEPARATION PAY of sixty
percent 60% of their retirement pay computed at one (1)
month for every year of service considering the length of their
service under the said agency;

3. They were suggested absorption with the incoming security agency

Lockheed Global Security and Investigation Services, Inc.

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 The respondent ended its service contract with all the branches
nationwide of Development Bank of the Philippines on December 2016,
effectively terminating the complainant’s employment as security guards.

Complainants were constrained to tender their resignation and

sign the final clearance certificate and quitclaim because the management
of DBPSC SSI promised to pay them separation pays.

However, the Respondent never intended to honor the promise and

failed to pay complainants which left them with no choice but to file a
complaint with the DOLE Region VI- Antique Field Office for non-payment
of separation pay.

The respondent refused to pay on the ground that the complainants

sought employment with another security agency. The SENA with the
Regional Office of DOLE failed and the complainants were referred to file
their complaint with the NLRC Sub Regional Arbitration Branch in Iloilo
City.

After filing their Complaint with the NLRC on 22 May 2017, Parties
were scheduled for Two (2) Mandatory Conferences with the but to no
avail. Thus, parties were ordered to submit their respective Position Papers.

(3)
ISSUES TO BE RESOLVED

The issues presented for the resolution of this case are the as follows:

I. Whether or not the complainants were illegally

(constructively) dismissed.
II. Whether or not the complainants are entitled to
separation pay
III. Whether or not complainants are entitled to moral and
exemplary damages and attorney’s fees.

(4)
DISCUSSIONS AND ARGUMENTS

The following are the discussions and arguments to enlighten and

guide this Honorable Labor Arbiter in the judicious disposition of the
above-entitled case:

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WHETHER OR NOT
COMPLAINANTS WERE
CONSTRUCTIVELY DISMISSED.

The Supreme Court defined Constructive Dismissal in Girly G. Ico

vs. Systems Technology Institute, Inc., et al. G.R. No. 185100,
July 9, 2014. It exists when any of the following circumstances is present:

1. When continued employment is rendered

impossible, unreasonable or unlikely; or
2.When there is a demotion in rank and/or a diminution
in pay and other benefits; or
3. When a clear discrimination, insensibility, or disdain
by an employer becomes so unbearable on the part of
the employee that it could foreclose any choice by him
except to forego his continued
employment. (Emphasis Supplied)

I. The security guards were induced to resign and were

constrained to resign.

The security guards were induced with the promise of

separation pay. Respondent DBPSC promised to pay them separation
pay should they choose to tender their resignation . After the act of mass
resignation, they were even suggested by the Respondent and DBP to get
the qualifying exam so that they may be absorbed with the incoming
agency.

Further, respondent’s decision not to bid effectively terminated the

services of security guards and rendered them jobless. Leaving them with
no choice. As can be gleaned from the facts, they have rendered countless
years of service with Respondent.

For the Honorable Labor Arbiter’s guidance, it is bear reiterating the

period of employment of the Complainants as follows:

Complainant Date of Hiring Date of Duration of

Termination Employment
1. AGATON A. SALCEDO February 1, 1990 December 6, 2016 26 years and 10
months
2. REYNALDO VILLAN August 31, 1992 December 6, 2016 24 years 8 months
3.CLEMENT A. DIMAMAY January 1998 December 6, 2016 19 years
4.CLAUDIO H. ABELLON, JR. December 4, 1997 December 6, 2016 20 years

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 Even the courts can take judicial notice that it is highly unlikely of
employees close to their retirement age would resign for no valid reason
and that one major reason would be a pot of gold at the end of the rainbow.
In this case, it is the promise of a Separation pay of sixty (60%) of their
retirement pay, which by all means, is a substantial amount considering
their individual lengths of service.

With their poor spirits and trusting hearts, the security guards looked
at the scenario as an act of good faith from Respondent and flawlessly
perfect, when the truth and fact is that they were only made to bite the bait.

II. Respondent and DBP, even suggested absorption of

the Complainants with incoming agency.

After passing the exams with DBP, they accepted employment from
the incoming agency, Lockheed Global Security and Investigation Services,
Inc. (LGSISI).

Respondent DBPSC promised to pay them separation pay should they

choose to tender their resignation. As a result, complainants were
constrained to resign since it was unclear as to whether or not they will be
given future job assignment and more importantly, they believed they’ll be
paid separation pays if they sign a resignation letter. Without assurance
from the respondent that complainants will be able to keep their jobs, it is
reasonable for the latter to accept the conditions presented them. Forced
resignation is not allowed and is considered “constructive” dismissal- a
dismissal in disguise.

III. Respondent intended to perpetually end the contract

with the principal DBP

Respondent DBPSC SSI ended its service contract with the

Development Bank of the Philippines (DBP) on December 10, 2016. Even
before the end of said contract, they met with their employees inducing
them to resign.

As admitted during the mandatory hearing, respondent chose

not to participate in the bidding; they manifested intention not to
renew their contracts because of difficulty in meeting the
“requirements” imposed by DBP and the government.

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 Such action resulted to loss of work for all security guards in their
employment nationwide, including the complainants herein. Their failure
to participate in the bidding placed the jobs of its security guard employees
in jeopardy.

IV. Respondent act of inducing the security guards shouts

the clear manifestation of circumventing the law to
evade payment of separation pay.

There was a clear intention for them to perpetually end their service.
Their actions of making them sign a resignation letter shouts the clear
manifestation of circumventing the law to evade payment of
separation pay in case of closure of business.

Under our labor laws, an employee terminated due to closure or

cessation of business operation not due to serious business losses shall be
paid by the employer a separation pay equivalent to one month pay or at
least one-half month pay for every year of service, whichever is
higher, a fraction of six (6) months service is considered as one (1) whole
year. Where closure is due to serious business losses, no separation pay is
required.

Considering the above stated circumstances, the complainants’

continued employment had been rendered impossible leaving them with no
choice but to submit to the resignation suggested by Respondent.
Altogether, it can be concluded that respondents’ actions tantamount to
constructive dismissal.

WHETHER OR NOT THE

COMPLAINANTS ARE ENTITLED
TO SEPARATION PAY

Complainants were constructively dismissed illegally and

are thus entitled to backwages and reinstatement or payment of
separation pay in lieu thereof.

Separation pay is the alternative remedy of reinstatement.

It bears reiterating the following facts for purposes of emphasis and

not merely for repetition:

1. Upon notice to the complainants that their job as security guards

will have to end, they were strongly encouraged to tender their

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 resignation, instead of terminating them, to avoid payment of
separation pay.

2. Respondent DBPSC informed the complainants that they will have

to lose their source of income for an uncertain period of time if
they stay in the company and offered to pay them separation pay if
they choose to resign.

3. Complainants, therefore, were induced to resign because of the

promised separation pay and lack of assurance that they will be
given future job assignments. Complainants who feared to go
jobless had no choice but to accept the conditions presented them
since they have mouths to feed and families to support.

4. Respondent, during the conciliation proceeding through Mr.

Eduardo Rafael on May 4, 2017, admitted that a promise of
separation pay was indeed made but only if the security guards opt
not to be absorbed by the incoming agency.

5. To refuse payment of separation pay, as promised, because the

dismissed employees were absorbed by the incoming agency finds
no support under the law. The incoming agency, LGSISI, is not a
subsidiary of the respondent and is not in any way connected with
it.

These dismissed complainants have been with the respondent for a

long time and their termination from the company was mainly due to
respondent’s decision not to bid. Thus, in keeping with the law, these
complainants are entitled to separation pay under the law and
jurisprudence.

Art. 279. Security of tenure. 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. 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 back wages,
inclusive of allowances, and to his other
benefits or their monetary equivalent
computed from the time his compensation

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 was withheld from him up to the time of
his actual reinstatement.

Under Article 279 of the Labor Code and as held in catena of cases, an
illegally dismissed employee is entitled to backwages and reinstatement or
payment of separation pay in lieu thereof.

Reinstatement, in the case at bar, is no longer viable or possible

because respondent DBPSC SSI has no job assignment for the
complainants herein. In lieu thereof, we pray that they be awarded
separation pay in accordance with law.

In Bani Rural Bank Inc. versus Guzman, G.R. No. 170904,

November 13, 2013, the Supreme Court held:

“By jurisprudence derived from this provision, separation pay may be

awarded to an illegally dismissed employee in lieu of reinstatement. Section
4(b), Rule I of the Rules Implementing Book VI of the Labor Code provides
the following instances when an award of separation pay, in lieu of
reinstatement to an illegally dismissed employee, is proper:
(a) When reinstatement is no longer
possible, in cases where the dismissed
employees position is no longer possible;
(b) The continued relationship between the
employer and the employee is no longer viable
due to the strained relations between them;
(c) When the dismissed employee opted not
to be reinstated, or the payment of separation
benefits would be for the best interest of the
parties involved.

In these instances, separation pay is the alternative remedy of

reinstatement in addition to the award of backwages. The separation pay
and reinstatement are exclusive remedies. The payment of separation pay
replaces the legal consequences of reinstatement to an employee who was
illegally dismissed.”

WHETHER OR NOT
COMPLAINANTS ARE ENTITLED
TO MORAL AND EXEMPLARY
DAMAGES AND ATTORNEY’S
FEES

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 Respondent is guilty of bad faith, malice or fraud, committing
acts oppressive to labor.

In San Miguel Properties Philippines, Inc. versus Gucaban,

G.R. No. 153982, July 18, 2011, the Supreme Court held:

“Moral damages are awarded in

termination cases where the employee’s
dismissal was attended by bad faith, malice
or fraud, or where it constitutes an act
oppressive to labor, or where it was done
in a manner contrary to morals, good customs
or public policy”.

In the case at bar, said bases are present when the complainants
were induced to tender their resignation upon the promise in bad
faith that they will be given separation pay in exchange. Further, the
complainants were induced to resign because they were made to believe
that staying with the company would incur them loss of income for an
unknown period of time. The intentional failure of respondent DBPSC SSI
to bid constituted an act oppressive to labor. All these considered,
complainants are, likewise, entitled to exemplary damages.

Complainants are, likewise, entitled to attorney’s fees having been

forced to litigate in order to seek redress for their grievances. In Lambert
Pawnbrokers and Jewelry Corporation, the Court specifically ruled:

“However, the award of attorney’s fee is

warranted pursuant to Article 111 of the Labor
Code. Ten (10%) percent of the total award is
usually the reasonable amount of attorney’s
fees awarded. It is settled that where an
employee was forced to litigate and, thus, incur
expenses to protect his rights and interests, the
award of attorney’s fees is legally and morally
justifiable.”

Due to the refusal of the respondent DBPSC SSI, complainants were

constrained to file a complaint and hire the services of the undersigned to
represent them in this case.

(5)
SUBMISSION OF SUPPORTING DOCUMENTS

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 Annexes Documents Purpose
“A” Complaint for NLRC To serve as basis for the
RAB CASE NO. VI- COMPLAINANTS CAUSES
05-50158-17 OF ACTION.

(6)
CONCLUDING REMARKS

The issues to be resolved in this case are neither complicated nor do

they require difficult evidentiary matters, hence immediately after
submission by the parties of their position papers, the Labor Arbiter can
determine that there is no need for a formal trial or hearing in the present
case in accordance with the provision of Section 4, Rule V of the NLRC New
Rules of Procedure.

PRAYER

WHEREFORE, in view of the foregoing, it is respectfully prayed

that the Honorable Labor Arbiter renders a decision in favor of
Complainants, Agaton A. Salcedo, Reynaldo Villan, Clement Dimamay, and
Claudio Abellon Jr., declaring the following:

1. That the complainants were induced to tender their resignation and

the same is tantamount to constructive dismissal
2. That the complainants are entitled to separation pay, as promised by
the respondent.
3. That the complainants are entitled to other reliefs prayed for.

Complainants also pray for such other reliefs as may be just and
equitable in the premises.

Iloilo City, Philippines. 7 July 2017.

ATTY. MARY LOUISE S.VILLEGAS

Counsel for Complainants
2nd Floor, A & L Bldg. ,E. Lopez St., Jaro, Iloilo City
IBP No. 1058583 -Iloilo City-January 5, 2017
PTR No. 5691191-Iloilo City- January 3, 2017
Roll of Attorney’s No. 65334
MCLE EXEMPT

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 ATTY. APRIL JOY ORTILANO-CAJILO
IBP No. 006034 -Iloilo City-May 19, 2017
PTR No. 5632365-Iloilo City- July 6, 2017
Roll of Attorney’s No. 67263
MCLE EXEMPT

Copy furnished:

ATTY. EDGAR CHAVEZ Registry Receipt:

President Date: 7 July 2017
DBPSC Security Service Incorporated
2nd floor EBC Building, Gil Puyat Avenue
Corner Makati Avenue, Makati City
DBPSC Security Service Incorporated Registry Receipt:
2nd floor EBC Building, Gil Puyat Avenue Date: 7 July 2017
Corner Makati Avenue, Makati City

EXPLANATION

In lieu of distance and lack of personnel on the part of the

undersigned counsel, copies of this Position Paper is served and furnished
to the Respondents via Registered Mail with Return Card.

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