Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
REGIONAL ARBITRATION BRANCH NO. 02
Tuguegarao City, Cagayan

TSCHAINE RHAZELYN R.
GALVELO,
Complainant, NLRC CASE NO. RAB II –
II-00514-2018
- versus –

BANK OF COMMERCE
Respondent.
x------------------------------------x

POSITION PAPER

The COMPLAINANT, through the Undersigned Counsel, unto this

Honourable Office most respectfully submits her position paper and avers:

Statement of Facts

1. On January 30, 2018, Ms. Sol Guingab came to the Bank and
introduced herself as the sister of a client, Mr. Cesar Marallag,
purposely to update the passbook of Mr. Cesar Marallag and
thereafter raised some concerns regarding three withdrawals:

Date of Withdrawal Amount

October 10, 2017 Php. 90, 000. 00
October 27, 2017 Php. 105, 000. 00
November 8, 2017 Php. 60, 000. 00

2. The matter was initially attended to by Branch Operations Officer

Elsie B. Canapi and was later on referred to herein complainant
Tschaine Rhazelyn R. Galvelo;
3. Ms. Sol Guingab called Mr. Cesar Marallag and handed her phone to
herein complainant and explained the matter and thereafter Mr.
Cesar Marallag explained the matter to Ms. Sol Gingab:
a. Mr. Cesar Marallag is an Italy based OFW who opened an
account with the Bank on August 23, 2016;
b. Before Mr. Marallag left for Italy, he entrusted some pre-signed
withdrawal slips to his friend, Mr. Mauricio Lagundi, to answer
for some contingencies for Mr. Marallag’s family and for the use
of Mr. Marallag’s girlfried, Ms. Carolina Garba;
 c. The withdrawal of some amounts by Ms. Garba was not through
Ms. Sol Guingab since the two (2) are not in good terms as the
latter is against the former’s relationship with Mr. Cesar
Marallag;
4. On June 8, 2018, Ms. Sol Guingab came to the bank to collect an
amount arising from a private transaction between Ms. Sol Gingab
and Ms. Kara Mendoza for the amount of Sixty Thousand Pesos (Php.
60, 000. 00) wherein the complainant, Ms. Galvelo would act as an
intermediary as per request and instruction of Mr. Cesar Marallag;
5. As the complainant was not around that time, she instructed Ms.
Canapi to pay Ms. Guingab as she will refund the amount after
returning from a client call;
6. Upon her return, the complainant already had with her the money
which is supposed to be the payment of Ms. Kara Mendoza and a
check issued by Mr. Joselito Santos for the amount of One Hundred
Thousand Pesos (Php. 100, 000. 00) payable to herein complainant;
7. The complainant, Ms. Galvelo, then encashed the said check and gave
sixty Thousand Pesos (Php. 60, 000. 00) to Ms. Elsie B. Canapi for
the payment which the latter made to Ms. Guingab;
8. On June 2018, the Bank of Commerce issued a Notice to Explain with
Preventive Suspension against the complainant;
9. During the period of the preventive suspension of the complainant,
her workstation was opened by the Bank of Commerce without her
presence and hence a Supplemental Notice to Explain was thereafter
issued against her;
10. On July 25, 2018, the complainant’s employment with the Bank
of Commerce was terminated;
11. As of date, the complainant is already disinterested with the award of
reinstatement as she already found a new vocation;

Issues

WHETHER OR NOT THERE IS A GROUND TO FIND THEFT OR

UNLAWFUL TAKING OF PROPERTY IN POSSESSION OF THE
BANK AND FINANCIAL INTEREST ON A CLIENT OF THE BANK
AGAINST THE COMPLAINANT

WHETHER OR NOT THERE IS A GROUND TO FIND

MISAPPROPRIATION AND FINANCIAL INTEREST ON THE
CLIENT OF THE BANK AGAINST THE COMPLAINANT

WHETHER OR NOT THE BANK OF COMMERCE VIOLATED

THE RIGHT OF THE COMPLAINANT IN CONSIDERING AN
EXCLUDED EVIDENCE IN RENDERING ITS DECISION TO
TERMINATE THE EMPLOYMENT OF THE COMPLAINANT

WHETHER OR NOT THE ADDITIONAL CHARGES AGAINST

THE COMPLAINANT EMBODIED IN THE SUPPLEMENTAL
NOTICE TO EXPLAIN ARE SUFFICIENT TO CAUSE HER
TERMINATION OF EMPLOYMENT AND WHETHER OR NOT
THE FORTY EIGHT HOUR PERIOD FROM THE RECEIPT OF
THE SUPPLEMENTAL NOTICE TO EXPLAIN DATED JULY 09,
2018 GIVEN TO THE COMPLAINANT BY THE BANK
CONFORMS WITH THE STANDARDS OF SUFFICIENT CHANCE
TO EXPLAIN

WHETHER OR NOT THE PENALTY OF DISMISSAL IS IMPOSED

BY THE PROPER OFFICER OF THE BANK OF COMMERCE

WHETHER OR NOT THERE IS SUFFICIENT BASIS TO

TERMINATE THE COMPLAINANT FROM EMPLOYMENT ON
THE GROUND OF LOSS OF TRUST AND CONFIDENCE

WHETHER OR NOT HEREIN COMPLAINANT IS ENTITLED

BACKWAGES, TERMINATION PAY, DAMAGES, THIRTEENTH
MONTH PAY, SERVICE INCENTIVE LEAVE, HOLIDAY PAY,
ATTORNEY’S FEES, COST OF SUIT, AND OTHER BENEFITS

Arguments

There is no ground to find theft or

unauthorized taking of property
in custody of the Bank. Nor was
there a ground to conclude that
Ms. Galvelo has a financial
interest with Mr. Marallag.

12.We note that Ms. Sol Guingab’s complaint about the unauthorized
withdrawals from the account of her brother Mr. Cesar Marallag was
made on January 30, 2018 and that the incident involving a monetary
obligation of a certain Ms. Kara Mendoza to Ms. Sol Guingab took
place on June 8, 2018;
13.In short it took five (5) months before the second incident
took place after the first one. This only shows that if it was
true that the complainant was the one who misappropriated
the amounts withdrawn from the account of Mr. Cesar
Marallag, then Ms. Sol Guingab should not have taken five
months to act against herein complainant;
14.In fact, as early as the issue arose against the complainant, Mr.
Marallag explained the matter to his sister when the latter called him
and the matter was settled as Ms. Guingab gave her phone to the
complainant purposely to talk with Mr. Marallag;
15.Also, Mr. Marallag has been trying to send proofs to exonerate the
complainant from any charge of the said unauthorized withdrawals.
In fact as early as then, Mr. Marallag sent a letter explaining that the
withdrawals made from his account were all authorized by him
 through pre-signed withdrawal slips which he handed to his friend
Mr. Mauricio Lagundi before he left for Italy;

(Copy of the Screenshot of the First Letter sent by Mr. Cesar

Marallag is hereto attached and marked as Annex “A”)

16.The letter sent by Mr. Marallag in fact stated that the

incident on June 8, 2018 was just a miscommunication
between him and his sister. Mr. Marallag further sent some
pictures of his letter that Ms. Galvelo merely accommodated his
request;

(Copy of the Second Letter sent by Mr. Cesar Marallag is hereto

attached and marked as Annex “B”)

17.On August 29, 2018, Mr. Cesar Marallag even went home just to
execute an Affidavit to support herein complainant against the false
charges against her and stated that the signatures of Ms. Galvelo as
the person who received the money from the withdrawals were all
upon Mr. Marallag’s request to facilitate the withdrawal from his
account instead of his girlfried Ms. Edlina Carolina Garba who is not
in good terms with his sister Ms. Sol Guingab;

(Copy of the Affidavit of Mr. Cesar Marallag is hereto attached

and marked as Annex “C”)

18. Worthy to note is the fact that Mr. Marallag even went home
just to make a way to explain the matter on behalf of Ms. Galvelo
purposely to show that the withdrawals from his account are all
authorized and are requested by him to be accommodated by the
complainant;
19.If it was true that Ms. Galvelo had misappropriated the funds of Mr.
Marallag which is in the custody of the bank, then Mr. Marallag
would not have been aggressive enough to go home just to execute the
Affidavit to protect Ms. Galvelo. This means that there was a truth on
the matter that the act of Ms. Galvelo that the Bank considers
violative is null and has no basis on the real situation;
20. This so, there is much strength to conclude that Ms. Galvelo did
not benefit and did not misappropriate funds from the account of Mr.
Marallag and the conclusion from the respondent Bank of Commerce
embodied on page 5 of their Notice of Disciplinary Action dated July
25, 2018 stating that: “The act of Mr. Marallag belatedly issuing a
certification that he requested you to acknowledge and receive the
amount of P60, 000. 00 and P105, 000. 00 instead of my girlfried
Edlina Carolina Garba to be given to my sister Sol for personal
reason as per my instruction shows that he merely condoned your
act of taking his money without prior authorization…xxx” is a mere
conclusion devoid of reason, without any basis in evidence and
without any legal leg to stand;
 21.In fact, the conclusion made by the Bank of Commerce even
went beyond the plain and categorical meaning of the
Affidavit and the letters sent by Mr. Marallag to explain the
dilemma which herein complainant is currently facing.
Hence deserves scant consideration for the witness that is supposed
to be for the Bank has turned hostile on the cause of the Bank;
22. Simply put, Mr. Marallag by being hostile to the cause of the
Bank purposely to protect the complainant against the false charges
against her should have moved the Bank to reconsider the
termination of herein complainant from her employment and the
silence of Ms. Sol Guingab for five (5) months is a confirmation which
gives more strength to the theory that there is no ground to use the
issue on the account of Mr. Marallag as a ground for illegal
termination;
23. Lastly, on account of all these evidence, there is also no ground
to conclude that Ms. Galvelo had misappropriated or is guilty of theft
on the funds under the custody of the Bank pertaining to the account
of Mr. Marallag and there is all the more no ground to conclude that
Ms. Galvelo has a financial interest with Mr. Marallag, the client of
the Bank;
24. Theft, as a rule, is the unauthorized taking of the property, with
intent to gain (Laurel vs Abrogar, GR No. 155076, January 13,
2009). So that, there is no theft if the property taken is previously
authorized by the person who owns the property;
25. Herein there was none because the withdrawal of the money of
Mr. Marallag was previously authorized by him, Bank of Commerce
should not conclude that Ms. Galvelo is liable for theft of property in
the custody of the Bank;
26. Further, financial interest on a client exist when the employee
stands to be benefited in his relationship with the client. In this
instant case however, Ms. Galvelo has nothing to gain from her
transactions with Mr. Marallag. As stated in his affidavit, Ms.
Galvelo’s withdrawal from the account of Mr. Marallag are mere
accommodations for the benefit of her client;
27. Hence there is no reason for the bank to conclude that Ms.
Galvelo has been in remiss of her duty or has been violating the
protocols of the Bank of Commerce;
28. In fact, there is a standing order coming from the high
ranking officials of the Bank of Commerce that in case of
VIP clients, the facilitation of their withdrawals may be
made by the BM (Branch Manager) or BMO or any bank
employee;

(Copy of the email of the Order coming from the Officials of the
Bank of Commerce is hereto attached and marked as Annex “D”)

29. This so, it would be seriously flawed for the Bank of Commerce
to accuse herein complainant for violation of the rules and
 regulations of the Bank when the Bank itself has a standing order that
may result into the commission of these violations;

There is no legal ground for

charging the complainant with
Misappropriation and Financial
Interest with a client in the
incident on June 8, 2018.

30. On June 8, 2018, the complainant instructed the Branch

Operations Officer Elsie B. Canapi to give an amount of Sixty
Thousand Pesos (Php. 60, 000. 00) to Ms. Sol Guingab as the
payment of Ms. Kara Mendoza as the complainant was not around
that time;
31.Upon her return, the complainant encashed a check issued by Mr.
Joselito Santos in the amount of One Hundred Thousand Pesos (Php.
100, 000. 00) and gave the Sixty Thousand Pesos (Php. 60, 000. 00)
to Ms. Elsie Canapi for the amount that the latter earlier gave to Ms.
Guingab since the complainant simply does not wish to take time to
get the payment of Ms. Kara Mendoza from her bag;
32. The amount of Sixty Thousand Pesos (Php. 60, 000. 00) given
by Ms. Kara Mendoza to Ms. Galvelo and the amount of Forty
Thousand Pesos (Php. 40, 000. 00) left from the encashment of the
checks issued by Mr. Joselito Santos (totalling the amount of One
Hundred Thousand Pesos (Php. 100, 000. 00)) were all given to Mr.
Joselito Santos on that same date;
33. In fact, Mr. Joselito Santos confirmed that he received the said
amounts on the same day as the proceeds of the checks he issued and
even executed an affidavit for the said purpose on June 27, 2018
purposely to defend the complainant from the malicious accusation of
the Bank;

(Copy of the Affidavit of Mr. Joselito Santos is hereto attached

and marked as Annex “E”)

34. In that affidavit, Mr. Santos explained that he merely

issued the checks in the name of Tschaine Galvelo
purposely to hasten the transaction and that he received the
amount indicated on the face of the check on the same day
since Mr. Santos is a distant relative, by affinity, of Ms.
Galvelo;
35. Worthy to note that money are fungible items/notes that can
be exchanged with a different items/notes without changing their
value hence a one thousand pesos (Php. 1, 000. 00) can be exchanged
with two (2) pieces of five hundred peso (Php. 500. 00) notes without
affecting their values;
36. Hence there is a logical way for the complainant not to
take the sixty thousand pesos (Php. 60, 000. 00) paid by
Ms. Kara Mendoza from her bag to refund the amounts paid
 by Ms. Elsie Canapi to Ms. Sol Guingab since the same sixty
thousand pesos (Php. 60, 000. 00) can be taken from the
proceeds of the checks she just encashed which by the way
were issued on her name;
37. There is misappropriation when there is a conversion of money
or property received to the prejudice of the entity to whom a return
should be made. Misappropriation connotes the act of using or
disposing of another’s property as if it was one’s own, or of devoting it
to a purpose or use different from that agreed upon. To
misappropriate to one’s own use includes not only to conversion to
one’s personal advantage, but also every attempt to dispose of the
property of another without a right (Chu vs People, GR No. 174113,
January 13, 2016);
38. Herein there is no misappropriation of the money of Mr. Santos
since Ms. Galvelo merely facilitated the request of Mr. Santos to
hasten the transaction. In fact, if it was misappropriated, Mr. Santo
would not have alleged that he received the full amount of money on
the same day;
39. Mr. Santos’ affidavit clearly negates the charge of
misappropriation since Ms. Galvelo did not place the said amount
into her personal use. We note that money is a fungible item and that
in order for it to be misappropriated, it should have been dedicated by
Ms. Galvelo into some other use resulting into a change of the value of
the money;
40. This so, the receipt of Mr. Santos of the entire amount strongly
negates the charge of Misappropriation;
41.It is likewise worthy to note that since Ms. Galvelo is a relative
by affinity of Mr. Santos, it is not uncommon for Mr. Santos
to issue some checks in the name of Ms. Galvelo;
42. In fact, this trait is truly a Filipino trait which may transcend
the said policy and may be considered as an exemption to the
restricting nature of the prohibition, if it was the case;
43. The accusation from the Bank of Commerce that the
Branch Operations Officer Elsie B. Canapi was able to
confirm the presence of financial interest with Mr. Santos
through the Branch Marketing Officer Rickford Melgarejo
is a hearsay since Elsie B. Canapi does not have a personal
knowledge about the entire transaction other than what she heard
from Mr. Melgarejo. Hence, it must not be considered in this
Administrative Proceedings (Miro vs Vda De Erederos, GR NO.
172532, November 20, 2013);
44. Again we note that there was a standing order coming
from the Bank of Commerce allowing the Branch Manager
or the BMO or any Bank employee and on this account, it
would be seriously flawed to hold Ms. Galvelo
administratively liable on account of this since the root
cause of the violation was because of an order coming from
the Bank itself;
There is denial of Due Process
when the telephone conversations
involving the Branch Operations
Officer Elsie B. Canapi and
Branch Marketing Officer
Rickford Melgarejo were not
presented to the complainant
when she was notified of the
complaints against her. The said
telephone conversations are fruits
of the poisonous tree which are
excluded in evidence.

45. The Notice of Disciplinary Action dated July 25, 2018 stated
two telephone conversations which are claimed by the Bank of
Commerce as evidence upon which the employment of herein
complainant is terminated. The said Notice stated in the wise:

xxx…Further, a copy of the recording of the phone

call of BOO Canapi with Mr. Marallag on June 8,
2018 was provided to the Committee. The recorded
conversation confirmed the complaint of Ms.
Guingab that you indeed borrowed money from Mr.
Marallag and, worse, withdrew the amount of P105,
000. 00 without his authority…..xxxx

xxx…As to the check of Mr. Santos in the amount of

P100, 000. 00, Branch Marketing Officer (BMO)
Rickford Melgarejo informed BOO Canapi that he
was able to verbally confirm with Mr. Santos that
you indeed borrowed money from him…xxx

(Copy of the Notice of Disciplinary Action dated July 25, 2018 is

hereto attached as Annex “F”)

46. From the above-quoted portion of the findings of the

Bank of Commerce deciding to Terminate the employment
of herein complainant from the Bank gives the impression
that there were two (2) telephone conversations which were
recorded which became the deciding point that led to the
termination of the complainant from her employment;
47. It is the position of herein complainant that the said telephone
conversations are fruits of the poisonous tree which are to be
excluded from evidence:
a. First, because it was recorded without full authorization from
the clients in violation of Republic Act No. 4200 who, by the
way, are the very persons who are being recorded;
b. Second, because the Notice to Explain with Preventive
Suspension dated June 20, 2018 and the Supplemental Notice
 to Explain dated July 9, 2018 do not contain any indication that
the recorded conversations were received by Ms. Galvelo as part
of the complaint upon which she is asked to answer;

(Copies of the Notice to Explain with Preventive Suspension

dated June 20, 2018 and the Supplemental Notice to Explain
dated July 9, 2018 are hereto attached and marked as Annex “G”
and “H” respectively)

48. Furthermore, during the conference with the Committee on

Disciplinary Action, the same evidence were not presented to the
complainant in order for her to sufficiently explain her side before her
termination. The Invitation for a Conference with the CoDA dated
July 10, 2018 did not even bother to state the said recordings as the
evidence under consideration;

(Copy of the Invitation for a Conference with the CoDA is hereto

attached and marked as Annex “I”)

49. Section 1 of Republic Act No. 4200 states that:

It shall be unlawful for any person, not being

authorized by all the parties to any private
communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such
communication or spoken word by using a device
commonly known as a Dictaphone or dictagraph or
walkie-talkie or tape recorder, or however otherwise
described

50. Section 2 of the same law states that:

Any person who wilfully or knowingly does or who

shall aid, permit, or cause to be done any of the acts
declared to be unlawful in the preceding section or
who violates the provisions of the following section
or of any order issued therender, or aids, permits, or
causes such violation shall, upon conviction thereof,
be punished by imprisonment for not less than six
months or more than six years and with the
accessory penalty of perpetual absolute
disqualification from public office if the offender be
a public official at the time of the commission of the
offense, and, if the offender is an alien he shall be
subject to deportation proceedings.

51.Hence we have nothing to conclude but to state herein that

the officers of Bank of Commerce had violated the law
 especially the Branch Operations Officer Elsie B. Canapi
and the Branch Marketing Officer Rickford Melgarejo who
perpetuated the commission of the crime under Section 1 of
Republic Act No. 4200;
52. In addition, we likewise infer that all those who aided,
permitted or caused to have done the recording of the telephone
conversation is likewise liable for the offense charged. As of this
date, it appears that the said recording of telephone
conversation was under the permission of the Officers of
the Bank of Commerce and was even used by the Human
Resource Management and Development Division headed
by Ms. Marie Cristina G. Mayo in drafting their decision to
terminate the employment of herein complainant in
violation of the prohibitory language of the said law;
53. This so, the members of the Human Resource
Management and Development Division, especially the
members of the Committee on Disciplinary Action, are in
violation of Section 2 of Republic Act No. 4200;
54. As for the prosecution of these crimes, it is enough that the text
of the Notice of Disciplinary Action dated July 25, 2018 stated the
existence of such recordings as an admission that they indeed
committed the offense;
55. We note that there was nothing in the evidence presented by the
Bank of Commerce that the said recordings were authorized by those
whose conversations are being recorded since the positive mandate of
the law is that “It shall be unlawful for any person, not being
authorized by all the parties to any private communication or spoken
word…xxx…to record such private communication or spoken word…
xxx”;
56. If there is any, the affidavits of Mr. Santos and Mr. Marallag
trying to provide evidence to exonerate the complainant on the
charges of the Bank of Commerce leading to the latter’s termination
from employment are clear and positive evidence that the recordings
were not made with the permission of Mr. Marallag and Mr. Santos;
57. Finally, Section 4 of Republic Act No. 4200 states:

Any communication or spoken word, or the

existence, contents, substance, purport, effect, or
meaning of the same or any part thereof, or any
information therein contained obtained or secured
by any person in violation of the preceding
sections of this Act shall not be admissible in
evidence in any judicial, quasi-judicial, legislative
or administrative hearing or investigation.

58. The entire procedure in the termination of the complainant

from her employment conducted by the Committee on Disciplinary
Action is an Administrative investigation/hearing hence falls within
the prohibition of the said law and therefore, the Bank of
 Commerce should not have used the said telephone
recordings in terminating Ms. Galvelo’s employment;
59. Additionally, what is more intriguing and bothersome is the fact
that the previous notices issued before the Notice of Disciplinary
Action dated July 25, 2018 did not state the existence of those
recorded telephone conversations and in fact, there is nothing in
the evidence provided by the Bank of Commerce that the
said recordings were provided to Ms. Galvelo in order for
her to fully explain her side during the administrative
investigation conducted by the Bank hence are violative of Ms.
Galvelo’s right to due process;

The charges embodied in the

Supplemental Notice to Explain is
a fruit of a poisonous tree for
being violative of the due process
of law. Furthermore, the mobile
pedestal was opened without the
presence of the complainant
hence the integrity of those taken
is a suspect of fabrication. The
decision on the Notice of
Disciplinary Action pertaining to
the items in the mobile pedestal
also failed to detail the reasons
why the employee was not able to
explain satisfactorily the charges
contained in the Supplemental
Notice to Explain.

60. The Supplemental Notice to Explain dated July 9, 2018

provided that during the effectivity of the Preventive Suspension of
the complainant, the Internal Audit Division (IAD) of the Bank of
Commerce found the following on the mobile pedestal of the
complainant:

a. Two Acknowledgment Receipts signed by the complainant FAO

Mr. Marallag;
b. Check dated June 08, 2018 drawn from the account of Mr.
Santos;
c. ATM Cards and PIN Mailers for the accounts of Mary Ann B.
Siuagan, Mary Joyce P. Taguinod and Mary Ann V. Pitas;
d. Passbook of Franklin G. Picio;
e. Original Foreign Currency Certificate of Time Deposit and Auto
Renew TD.
f. Two Copies of pre-signed Promissory Notes with Assignment of
Deposit of Sps. Tyje and Lucia Ong;
g. Pre-signed Reactivation Documents of Kate Kamatoy Vargas
h. Sealed envelope containing the Credit Card of Numar I. Garcia;
61.We note that the Supplemental Notice to Explain itself does
not state that the opening of the workstation of the
Complainant at the Bank of Commerce was made in her
presence hence there was no assurance that there has been
no implanting of evidence against her;
62. Furthermore, the Supplemental Notice to Explain dated July 9,
2018 states:

You are hereby required to submit your written

explanation within forty-eight (48) hours from
receipt of this Memorandum. If we do not receive
your explanation within the prescribed period, we
shall consider it a waiver on your part and we shall
decide your case based on available records and
documents.

63. The above-quoted text from the Supplemental Notice to Explain

dated July 09, 2018 was responded to by Ms. Galvelo through an
Explanation to the Supplemental Notice to Explain dated July 11,
2018;
64. However, the charges against Ms. Galvelo embodied in
the Supplemental Notice to Explain must be disregarded
and removed from the record, notwithstanding the fact that
an answer thereto was made, on the ground that the period
that the employee is given to explain her side is violative of
her right to due process;
65. Because of the chilling effect of the language in the
Supplemental Notice to Explain, the complainant is left with no
choice but to try to explain knowing that the said notice only gave her
forty eight (48) hours within which she is to explain her side;
66. Due process demands that the employee must be given an
ample opportunity to explain her side and that the management must
accord the employee an ample opportunity to explain and prepare
adequately for his defense. In King of Kings Transport vs Mamac
(GR No. 166208, June 29, 2007), reasonable opportunity to
explain must be construed as a period of at least five (5)
days from the receipt of notice to explain to give the employee
an opportunity to study the accusation against him, consult a lawyer,
gather data or evidence, and decide on the defences he will raise
against the complaint;
67. Such overachingly significant requirement has been robbed
from Ms. Galvelo when the Supplemental Notice to explain merely
gave her forty eight (48) hours to explain hence her answer thereto
were not intelligently made because of inadequate preparation;
68. While it can be argued that the Notice to Explain with
Preventive Suspension dated June 20, 2018 gave Ms. Galvelo five
days to explain tow of the charges which led to her termination, the
same should not be considered since the Supplemental Notice to
 Explain dated July 9, 2018 contains additional charges
where the complainant needs additional time to explain and
gather evidence on her behalf;
69. This so, it devolves upon the Bank to give her another five (5)
days upon which she can make intelligent answers in her defense in
order to comply with the requirement of “reasonable
opportunity” as required under the current jurisprudence. Hence,
for being violative of Due Process, the grounds for
termination embodied under the Supplemental Notice to
Explain should be disregarded and excluded for being a
fruit of the poisonous tree;
70. As an effect of this exclusion the pertinent portion of
the Notice of Disciplinary Action dated July 25, 2018 with
respect to the issue on the items found in the mobile
pedestal of herein complainant must also be declared void
since the same arose from a poisonous tree. This portion
states:

Moreover, the certification and proof of consent that

you obtained for the documents found in your
mobile pedestal, which is under your sole custody, it
doesn’t absolve you from the violations of the Bank’s
policy on dual custodianship of Bank documents.

71.Also, the above-quoted findings of the Bank of Commerce on the

issue is a catch-all explanation without any attempt to explain why
the employee’s Explanation to the Supplemental Notice to Explain is
considered untenable nor was there any attempt to specify which of
the items found in the mobile pedestal violates the rules and
regulations of the Bank despite the fact that the complainant herein
tried her best to explain given the limited time that the bank had
given her;

(Copy of the Explanation on the Supplemental Notice to Explain

Based on the Conducted Audit Investigation at Tuguegarao
Branch by Internal Audit Division dated July 11, 2018 is hereto
attached and marked as Annex “J”)

72. This so, it devolves upon the employer to also explain

piece by piece which part of the explanation it found
incredulous for the purposes of giving due process on the
part of the employee. In fact, if there is a question on the custody
of the employee of the stated documents, the Bank should have been
more specific in its decision by simply stating or providing for the
copy of the policies which was alleged to have been violated by the
complainant. This irregularity is highly suspicious and tantamount
into a prima facie proof that the employer does not have
such policy or had never bothered to provide the employees
 with a memorandum of the said policies before and during
the period of the employee’s employment;

The penalty of dismissal from

work was not imposed by the
proper officer hence ultra vires.

73. The Code of Discipline of the Bank of Commerce, Article VII,

paragraph 1 states that:

Administrative actions/penalties shall be imposed

by the following:

Immediate Supervisor - Written Reminders

and Written Warnings
Department Head - From Reprimand up to
Suspension of 5 days
Group Head - Suspension from 6 to
10 days
Sector Head - Suspension for 11 days
up to dismissal
Board of Directors - For cases involving
Assistant Vice Presidents
and
those of higher rank

(Copy of the Code of Discipline of the Bank of Commerce is

hereto attached and marked as Annex “K”)

74. The rules of the Bank of Commerce is very specific and leaves
no room for doubt that the Notice of Disciplinary Action should
be signed by the Sector Head and no other else. Herein, the
signatory of the Notice of Disciplinary Action was signed by Marie
Kristin G. Mayo, the Division Head of the Human Resource
Management and Development Division of the Bank of Commerce;
75. We note that the Sector Head is different from the Division
Head of the Human Resource Management and Development
Division and therefore the Notice of Disciplinary Action should be
considered as ultra vires;
76. In fact, such error is an indicia that the Bank of
Commerce is not attuned with their own rules and for this,
the Bank should not be allowed to expect from their employees that
their rules would be upheld strictly;
77.As of date, if there is error in the handling of documents in the office,
it should be the Bank that should initiate the correction by observing
their own rules and regulations so as to avoid the impression given to
the employees thereby avoiding the laxity of thinking that the rules of
the Bank of Commerce is not actually practiced;
The ground of loss of trust and
confidence cannot be used as a
refuge of the employer purposely
to terminate the employee simply
because there is an insufficient
evidence to find grounds to
terminate the employee’s
employment.

78. At the outset it must be noted that the Notice to Explain with
Preventive Suspension and the Supplemental Notice to Explain never
mentioned loss of trust and confidence as a ground for the possible
termination of Ms. Galvelo from employment;
79. It was only during the Notice of Disciplinary Action dated July
25, 2018 when the Bank of Commerce decided to terminate the
employment of Ms. Galvelo with the bank that the term “loss of trust
and confidence” came out;
80. In Labor vs NLRC (GR No. 110388, September 14, 1995), the
right of the employer to dismiss an employee based on loss of trust
and confidence in him must not be exercised arbitrarily and
without case. For loss of trust and confidence to be a valid ground for
an employee’s dismissal, it must be substantial and not
arbitrary, and must be founded on clearly established facts
sufficient to warrant the separation of the employee from
work;
81. The term loss of trust and confidence is not simply an instant
formula that the employer may use to dismiss an employee, the facts
stating the loss of trust and confidence must be clear so as to give a
convincing explanation as to why the employee does not deserve the
trust and confidence of the employer;
82. Herein, the appearance of the ground of loss of trust
and confidence only during the Notice of Disciplinary
Action is issued means that the said ground was merely
formulated as an afterthought. It would seem that it was only
when the employer realized that the complainant was able to gather
enough evidence to contradict the charges against her that the said
term came into the notices sent by the Bank of Commerce to the
complainant;
83. Furthermore, Ms. Galvelo was able to explain one by one the
charges made against her in her Answer to the Notice to Explain and
in her Answer to the Supplemental Notice to Explain. In fact, two of
the Bank’s depositors have turned hostile against the position of the
Bank in this case;

The awards of backwages,

damages, attorney’s fees, service
incentive leave, overtime pay, 13th
month pay, holiday pay, and cost
of suit are proper.
84. As the employee, Ms. Galvelo is no longer praying for her
reinstatement as she had already found another source of income and
that reinstatement is already impossible without affecting her new
vocation an award of Separation Pay is proper (Golden Ace Builder vs
J. Talde, GR No. 187200, May 5, 2010);
85. As Ms. Galvelo has been an employee for seven (7) years up to
the time of her termination and as she was then enjoying a gross
salary of thirty five thousand eight hundred ten pesos (Php. 35, 810.
00) per month with the Bank’s current practice of giving one point
twenty five percent (1.25%) in case an employee had been employed
therein for at least five (5) years, Ms. Galvelo is therefore entitle with
the Separation Pay of Three Hundred Thirteen Thousand Three
Hundred Thirty Seven Pesos and Fifty Centavos (Php. 313, 337. 50);

(Copies of the Payslip of Ms. Galvelo are hereto attached and

marked as Annex “L” and “L-1” in series)

86. A Notice to Explain with Preventive Suspension was issued to

the complainant on June 20, 2018 and on July 9, 2018, a
Supplemental Notice to Explain was issued. She was also issued the
Notice of Disciplinary Action on July 25, 2018 which then effectively
terminated her employment;
87. Because of the Preventive Suspension of Ms. Galvelo on June
20, 2018 and since then, she was not allowed to work and had not
been receiving her salary from that period up to the present, totalling
eight (8) months, her salary for the said periods must be given to her
totalling therefor in the amount of Two Hundred Eighty Six Thousand
Four Hundred Eighty Pesos (Php. 286, 480. 00)
88. Because the complainant is has been terminated on July 2018
and has suffered the loss of her 13 th month pay, she is therefore entitle
the amount of Thirty Five Thousand Eight Hundred Ten Pesos (Php.
35, 810. 00);
89. The complainant is also entitled to commute her unused Service
Incentive Leave for five (5) days per year from the time of her
employment until the time she was illegally dismissed by her
employer or the total amount of Forty One Thousand Seven Hundred
Seventy Eight Pesos (Php. 41, 778. 00);
90. For the sleepless nights, wounded feelings, and besmirched
reputation resulting from the false accusation of the Bank of
Commerce against the person of the complainant threatening her
with evidence which were not procured during the course of the
investigation against her, in maliciously maligning the evidence that
she presented in her defense, and by fraudulently seeking refuge in
the ground of loss of trust and confidence when all the other grounds
have failed, herein complainant is entitled with the amount of Two
Hundred Thousand Pesos (Php. 200, 000. 00) by way of Moral
Damages;
 91.Due to the repeated violation of the Bank of Commerce resulting into
the invasion of her right as mandated by Article 2221 of the Civil
Code in relation to Republic Act No. 4200 and Article 3, Section 1 of
the Philippine Constitution on the ground that there is a denial of due
process of law by not giving her an ample opportunity to explain her
side, opening her workstation without her presence to protect her
integrity, and in seriously considering two (2) excluded evidence
mandated by Republic Act No. 4200 in deciding for her termination
for employment, the award of Nominal Damages in the amount of
Two Hundred Fifty Thousand Pesos (Php. 250, 000. 00) is proper;
92. By way of correction of the violation of her rights for public
good and in the commission of a crime by the Bank of Commerce in
violation of Republic Act No. 4200 and due to the wanton,
malevolent, oppressive, fraudulent, and reckless act of the Bank of
Commerce in deciding to terminate the employment of herein
complainant, the complainant is entitled to the amount of One
Hundred Fifty Thousand Pesos (Php. 150, 000, 00);
93. Because the complainant was forced to hire the services of a
counsel to litigate her claim, the complainant is hereby entitled with
the amount of Fifty Thousand Pesos (Php. 50, 000. 00) Attorney’s
Fees in addition to the cost of the suit;

Prayer

WHEREFORE, premises considered, it is most respectfully prayed

of this Honourable Office that after due consideration, a judgment be
made:

1. Declaring that Tschaine Rhazelyn Galvelo was illegally dismissed by

the Bank of Commerce;
2. Ordering the Bank of Commerce to issue a Certificate of Employment
in the name of Tschaine Rhazelyn Galvelo as resigned from work;
3. Ordering the Bank of Commerce to pay the amounts of:
a. Three Hundred Thirteen Thousand Three Hundred Thirty
Seven Pesos and Fifty Centavos (Php. 313, 337. 50) by way of
Separation Pay in lieu of Reinstatement;
b. Two Hundred Eighty Six Thousand Four Hundred Eighty Pesos
(Php. 286, 480. 00) by way of Backwages;
c. Thirty Five Thousand Eight Hundred Ten Pesos (Php. 35, 810.
00) as 13th Month Pay;
d. Forty One Thousand Seven Hundred Seventy Eight Pesos (Php.
41, 778. 00) as Service Incentive Leave;
e. Two Hundred Thousand Pesos (Php. 200, 000. 00) as Moral
Damages;
f. Two Hundred Fifty Thousand Pesos (Php. 250, 000. 00) as
Nominal Damages;
 g. One Hundred Fifty Thousand Pesos (Php. 150, 000. 00) as
Exemplary Damages;
h. Fifty Thousand Pesos (Php. 50, 000. 00) as Attorney’s Fees and
i. Cost of Suit

RODERICK S. CIPRIANO
Roll No. 71743
Date of Admission: June 7, 2018
IBP No. 067529/January 08, 2019
PTR No. 2468484/January 04, 2019/Tuguegarao City
749-A Maharlika Highway,
Carig Sur, Tuguegarao City, Cagayan
09264091516

VERIFICATION AND CERTIFICATION

REPUBLIC OF THE PHILIPPINES )

Province of Cagayan ) S.S.
City of Tuguegarao )
x-----------------------x

I, TSCHAINE RHAZELYN GALVELO, of legal age, Filipino,

married, and a resident of Tuguegarao City, Cagayan, Philippines, after
being sworn in accordance with law, hereby depose and say:

1. That I am the Complainant in the above-entitled case;

2. That I have caused the preparation of the above Position Paper and I
have read the same and knows the contents thereof;
3. That the allegations contained therein are true and correct of my own
personal knowledge.
4. That I further certify that:
a. I have not theretofore commenced any other action or proceeding
or filed any claim involving the same issues or matter in any
court, tribunal, or quasi-judicial agency and, to the best of my
knowledge, no such action or proceeding is pending therein;
b. If I should thereafter learn that the same or similar action or
proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals, or any other tribunal or quasi-
judicial agency, I undertake to report such fact within five (5)
days therefrom to the court or agency wherein the original
pleading and sworn certification contemplated herein have been
filed.

IN WITNESS WHEREOF, I have hereunto set my hand this

_________________at Tuguegarao City, Cagayan.
 TSCHAINE RHAZELYN GALVELO
Affiant

SUBSCRIBED AND SWORN to before me, this ____________,

by AFFIANT who exhibited to me her
__________________________ issued at _______________ by
_________________________ on ________________.

Doc. No. ______;

Page No. ______;
Book No. ______;
Series of 2019;