Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. V
Quezon City
JIEME YULA ORTIZ
Complainant,
-versus- NLRC RAB V CASE NO.: NCR-03-00409-20
ALPHA FORCEE SECURITY AGENCY INC.,
JESSAMYN S. NUÑEZ, Officer-in-Charge,
ROGER G. TAPAYAN, Acting HR Officer,
JIGSAW ROY O. CARTAS
Respondents.
x---------------------------x
POSITION PAPER FOR THE COMPLAINANT
COMPLAINANT by the undersigned counsel and unto this
Honorable Labor Arbitration Office most respectfully submits this position
paper and avers the following to wit:
PREFATORY STATEMENT
Consequently, the complainant filed the present complaint before this
Honorable Labor Arbitration Office last March 6, 2020, specifically praying for
payment of full back wages, separation pay in lieu of reinstatement, other
money claims, and nominal, moral, and exemplary damages. Other reliefs,
just and equitable under the premises, are likewise prayed for.
THE PARTIES
Complainant JIEME YULA ORTIZ (hereinafter referred to as
complainant Ortiz) is of legal age, Filipino, married, and a resident of B87,
L02, Phase 12A, Wellington place Pasong Camachile II, City of General Trias,
Cavite. He can be served with notices, orders, resolutions, and other
processes of this Honorable Labor Arbitration Branch at the address of his
undersigned counsel.
Respondent ALPHAFORCE SECURITY AGENCY INC. (hereinafter
referred to as respondent AFSAI) is a Philippine corporation operating as a
security agency engaged in outsourcing and placement of security guards to
different companies. It may be served with summons, orders, resolutions,
and other processes of this Honorable Office at Basement 4, Alphaland
Makati Place, Ayala Ave., City of Makati, Metro Manila.
Respondent JESSAMYN S. NUÑEZ (hereinafter referred to as
respondent Nuñez) is the Officer-in-Charge of respondent AFSAI. He is of
legal age, Filipino, and with office address at Basement 4, Alphaland Makati
Place, Ayala Ave., City of Makati, Metro Manila where he may be served with
notices, orders, and resolutions of this Honorable Labor Arbitration Office.
Respondent ROGER G. TAPAYAN (hereinafter referred to as
respondent TAPAYAN) is the Acting Human Resource Officer of respondent
AFSAI. He is of legal age, Filipino, and with office address at Basement 4,
Alphaland Makati Place, Ayala Ave., City of Makati, Metro Manila where he
may be served with notices, orders, and resolutions of this Honorable Labor
Arbitration Office.
Respondent JIGSAW ROY O. CARTAS (hereinafter referred to as
respondent Cartas) is a Mobile Inspector at respondent AFSAI. He is of legal
age, Filipino, and with office address at Basement 4, Alphaland Makati Place,
Ayala Ave., City of Makati, Metro Manila where he may be served with
notices, orders, and resolutions of this Honorable Labor Arbitration Office.
STATEMENT OF THE CASE
1. On January 21, 2013, complainant Ortiz was hired by complainant
AFSAI to occupy the position of Investigation Officer in which he
received a monthly basic salary of P25,000.00, and additional
communication allowance in the amount of P500.00 a month. As
Investigation Officer, complainant Ortiz was tasked to do the following
duties:
a) Conducts security training with security guards of AFSAI;

b) Investigates any security guard alleged to have

violated company rules and regulations;

c) Inspects the validity of all security guard’s licenses;

d) Endorses every security guard to the client for posting.

2. Respondent AFSAI issued a certification1 through its HR Officer, Noel

O. Cheung dated October 9, 2014, upon the request of complainant
Ortiz certifying that complainant Ortiz is indeed an employee of
respondent AFSAI since January 21, 2013;

3. In the first year of his employment, complainant Ortiz has shown

dedication, commitment, and exemplary performance. He was
commended by the AFSAI for a job well done and was conferred the
permanent status of employment on December 2, 2014. A
confirmation letter was sent to complainant Ortiz advising him that
he successfully passed the standards of the company (AFSAI) signed
by no less than AFSAI President and CEO, Cyrano A. Austria. Together
with the salary increase, complainant Ortiz was given entitlement
to the following benefits:

a) Medical Insurance which includes dental benefits through

accredited dental clinics;

b) Group Personal Accident Insurance;

c) Life Insurance;
d) 15 days’ Vacation Leave and 15 days Sick Leave credits after
one-year completion of one (1) year of continued and
uninterrupted service; and
 e) Paternity Leave.

4. Complainant Ortiz has maintained his outstanding performance and

has been an exemplar of loyalty that he, as expected, rose through the
ranks of the company (AFSAI). That, on June 02, 2014, after working in
the company for more than a year, he was promoted as Acting Security
Officer-In-Charge and has held the position until March 30, 2019. Again,
on October 15, 2019, he was promoted as Assistant Security Manager
and Safety Officer designated at League One Southgate Tower and Mall
(LSG) and to receive a monthly salary amounting to P 40,000.00. An
official designation 3 was issued to complainant Ortiz by General
Manager Wilhelm E. Barlis to this effect.

5. Unexpectedly, on November 14, 2019, complainant Ortiz

received a Notice to Explain 4 from the AFSAI Human
Resource Department, signed by respondent Tapayan and duly
noted by respondent Nuñez,asking him to explain in writing why he
should not be sanctioned for alleged violations of the Company Code
of Discipline and the Labor Code of the Philippines. The conference for
the deliberation of the matter was set on November 21, 2019. Together
with the directive to explain, complainant Ortiz was also notified of the
30-day preventive suspension effective on even date.

6. Complainant Ortiz immediately sent his written explanation

5
on November 15, 2019, stating that he did not commit any of the fraud
accused of him that can be the source of loss of trust and confidence by
his employer towards him. Whatever appears to be misconduct on his
part were born out of good intentions and initiatives that he believed to
be beneficial for the company and the company’s clients. No
hearing/conference was conducted with respect to the
aforementioned Notice to Explain.
7. As per instruction via email6 sent by respondent Cartas to
Wilhelm Nicholas (Alphaland-The City Club of Makati General
Manager), complainant Ortiz reported back to work after the
30-day preventive suspension on December 16, 2019, at the AFSAI
Main Office believing fully that he will finally be allowed to report to work.
Conversely, he was not allowed to occupy his position as Assistant
Security Manager and Safety Officer on that day and instead
was told to return on some indefinite other days without any
written or formal notice of the reason or cause. Asked about the
status of complainant Ortiz’ case, respondent Cartas verbally
informed the former that the case was still pending and that respondent
Nuñez, the officer who would decide the case, is yet to report to work.

8. While worrying about when he will regain his job and suffering
because of uncertainties of his future in the company and loss of earning
because of the indefinite suspension imposed by his superiors,
complainant Ortiz received a second Notice to Explain 7 now
alleging another act of misconducts violative of Company Rules and
the Labor Code and asking him to explain the alleged violations instead
of rendering a decision to the first disciplinary case filed against
complainant Ortiz.

9. Again, complainant Ortiz immediately sent his written

explanation8 emphasising therein that he remained steadfast
and dedicated to the various positions and duties he held since his
first day in the company as deployment officer, investigation officer,
security officer-in-charge and assistant security officer and manager.
That the acts he committed alleged to be violations of the company
policy were necessary and related to his functions and all of his actions
were made through and by the instruction of his superiors.

10. On January 20, 2020, complainant Ortiz attended the

board hearing/conference held at AFSAI Main Office to participate in the
deliberation on the disciplinary case instituted against him. Other
participants to the hearing/conference were respondents Cartas,
Tapayan, Nuñez, and Mr. Arroyo. There, the company
representatives laid down the allegations against complainant
Ortiz composed only of bare and unfounded assertions without
showing any proof or evidence. While complainant Ortiz defended
himself by laying down his good and unblemished record as an honest
and dedicated company employee for six (6) years as shown by his
promotions and salary increases. Moreover, complainant Ortiz
respectfully asked that he be given a copy of the findings during
the hearing and the resolution of his disciplinary case by the
company officers.

11. Complainant Ortiz from time to time personally goes to the

company office to inquire from his former collegues about the findings
and final decision of the company to the disciplinary case against him. He
waited until January 29, 2020, or almost 3 months after his
preventive suspension, for the final decision on his case but to no avail.

12. Meanwhile, complainant Ortiz had to resort to borrowing money

from friends and relatives, accept sideline works for meager amount, and
worst, to ask his children and wife to skimp on necessary expenses in
order just to survive because of the loss of income brought
by his indefinite suspension from work.

13. On January 20, 2020, complainant Ortiz decided to file a

request for conciliation 9 before the Honorable National Labor Relations
Commission NCR Arbitration Branch. Consequently, two conferences were
conducted one on February 21, 2020, and another one on March 06,
2020, before Alvin P. Delos Santos, SEnA Conciliator-Mediator. However,
the requests for assistance/ preventive conciliation-mediation did not
prosper because the parties failed to reach an agreement.

14. Now, complainant Ortiz is constrained to seek the

assistance of this Honorable Labor Arbitration Office to recoup from
 the AFSAI whatever is due to him under the company rules and the Labor
Code because of the constructive illegal dismissal made by his employer.
PROPOSED ISSUES TO BE RESOLVED
1. Whether or not the respondent failed to establish the existence
of an act justifying the loss of trust and confidence;

2. Whether or not the respondent failed to observe the “two notice

rule” in validly terminating an employee;

3. Whether or not the complainant was illegally dismissed thru

constructive dismissal;

4. Whether or not the complainant is entitled to payment of

separation pay in lieu of reinstatement;

5. Whether or not the complainant is entitled to payment of full

backwages, moral, nominal, and exemplary damages.
DISCUSSION / ARGUMENTS
Complainant Ortiz thru undersigned counsel respectfully submits in the
affirmative for all the issues.
THE RESPONDENT FAILED TO ESTABLISH
THE EXISTENCE OF AN ACT JUSTIFYING
THE LOSS OF TRUST AND CONFIDENCE.
In termination cases, the burden of proof rests upon the employer to
show that the dismissal is for a just and valid cause; failure to do so would
necessarily mean that the dismissal was illegal. (Agusan del Norte Electric
Cooperative, Inc., et al. v. Cagampang, et al., supra, at 313,
citing Philippine Long Distance Company, Inc. v. Tiamson, 511 Phil. 384,
394-395(2005).
In the instant case, petitioners contend that their
termination of respondent's employment was based on their loss of trust and
confidence in him. Loss of trust and confidence is a just cause for dismissal
under Article =282(c) of the Labor Code, which provides that an employer
may terminate an employment for "fraud or willful breach by the employee
of the trust reposed in him by his employer or duly authorized
representative." The employer must establish the existence of an act
justifying the loss of trust and confidence. To be a valid cause for dismissal,
the act that betrays the employer's trust must be real, i.e., founded on
clearly established facts, and the employee's breach of the trust
must be willful, i.e., it was done intentionally, knowingly and
purposely, without justifiable excuse.
In Lopez v. Keppel Bank Philippines, Inc., the Court repeated the
guidelines for the application of loss of confidence as follows: (1) loss of
confidence should not be simulated; (2) it should not be used as a
subterfuge for causes which are improper, illegal or unjustified; (3)
it may not be arbitrarily asserted in the face of overwhelming evidence to
the contrary; and (4) it must be genuine, not a mere afterthought to justify
an earlier action taken in bad faith.
Here, AFSAI, despite the hearings/ conferences held to ferret out the
truth of the allegations against the complainant, sorely failed to establish
through substantial evidence the fact of such allegations. AFSAI failed to
present any supporting evidence to prove its allegations. On the contrary,
complainant Ortiz has just been promoted, or exactly fifteen days before he
was preventively suspended for acts that he alleged to have
committed before the promotion. It would appear that the allegations that
caused the loss of trust and confidence were an afterthought and a product
of a “fishing expedition” to look for evidence after AFSAI already decided to
terminate his employment for causes unknown to him.
THE RESPONDENT FAILED TO OBSERVE
THE “TWO-NOTICE RULE” WHEN IT DID
NOT ISSUE A NOTICE OF TERMINATION.
Even assuming, without admitting, that the cause of termination was
established, respondent AFSAI failed to afford complainant Ortiz of his right
to procedural due process when the former did not notify him of termination
of his employment. Our Constitution, statutes, and jurisprudence uniformly
guarantee to every employee or worker tenurial security. What this means is
that an employer shall not dismiss an employee except for a
just or authorized cause and only after due process is observed
(Distribution & Control Products, Inc.Nincent M. Tiamsic v. Jeffrey E.
Santos, G.R. No. 212616, July 10, 2017).
In Unilever Philippines, Inc. v. Rivera, the Supreme Court emphasized
that after determining that termination of employment is
justified, the employer shall serve the employee a written notice of
termination indicating that: (1) all circumstances involving the charge
against the employees have been considered; and (2) grounds have
been established to justify the severance of their employment.
Here, complainant Ortiz had never received any notice of termination.
What he received was the first notice to explain dated November 14, 2019,
with a notice of preventive suspension and another notice to explain dated
January 13, 2020, only this time no preventive suspension was imposed.
Even after the hearing/conference, which was held on January 20, 2020, and
the reminder of the complainant that he would be waiting for the result of
the investigation, and eliberations of the Company Committee on
Discipline, respondent AFSAI failed to inform in writing the complainant of
the result of the investigation which could be their reason for the notice of
termination. It would appear that after the hearing, the discipline committee
did not find any truth to the allegations, hence, there can be no valid basis
for termination.
THE COMPLAINANT WAS ILLEGALLY
DISMISSED BY WAY OF CONSTRUCTIVE
DISMISSAL.
 The complainant in this case was illegally dismissed thru constructive
dismissal. Constructive dismissal exists where 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. Aptly called a dismissal in disguise or
an act amounting to dismissal but made to appear as if it were not,
constructive dismissal may, likewise, exist if an act of 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 (Morales v. Harbour Centre Port Terminal, Inc.,
G.R. No. 174208, January25, 2012).
In the instant case, the complainant was not given any definite answer
as to why he was not allowed to resume his post after the lapse of the 30-
day preventive suspension. He tried several times to inquire about the status
of his disciplinary case and showed his willingness to participate
in the investigation. But instead of allowing him to report back to work
after the company failed to establish the truth of the allegations against him,
he was instead placed in limbo by not giving him any reason why he cannot
go back to work. He was just informally advised to return on some indefinite
future date.
Again, in a seeming act of forcing him to abandon his work or tire him
of continuously asking to be posted on his position, respondent AFSAI sent
him another notice to explain and set another date for
hearing/conference. This goes to show that the company failed to find any
evidence to substantiate its allegations of the first notice to explain and that
it had already decided to terminate his employment no matter what. It
cannot be denied that his employment has been rendered impossible,
unreasonable, or unlikely.
THE COMPLAINANT IS ENTITLED TO
PAYMENT OF SEPARATION PAY IN LIEU OF
REINSTATEMENT.
In Claudia's Kitchen, Inc. v. Tanguin, the Court has summed up the
instances where such award of separation pay is warranted:
In sum, separation pay is only awarded to a dismissed employee
in the following instances: 1) in case of closure of establishment under
Article 298 [formerly Article 283] of the Labor Code; 2) in case
of termination due to disease or sickness under Article 299
[formerly Article 284] of the Labor Code; 3) as a measure
of social justice in those instances where the employee is validly
dismissed for causes other than serious misconduct or those reflecting
on his moral character; 4) where the dismissed employee's position is
no longer available; 5) when the continued relationship
between the employer and the employee is no longer viable
due to the strained relations between them or 6) 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
all of these cases, the grant of separation pay presupposes that the
 employee to whom it was given was dismissed from employment,
whether legally or illegally.
Here, complainant Ortiz does not wish to be reinstated to his position
because of the foregoing facts already stated. It would be impossible for him
to render his duties with the same vigor and focus considering
that his employer does not want him to be working in their
company anymore. Actual animosity, at least on the part of the employer
exists as shown by its constant desire to terminate his employment even
resorting to illegal means.
In Velasco v. National Labor Relations Commission, the
Supreme Court emphasizes that the accepted doctrine is that separation pay
may avail in lieu of reinstatement if reinstatement is no longer practical or in
the best interest of the parties. Separation pay in lieu of reinstatement may
likewise be awarded if the employee decides not to be reinstated. On one
hand, such payment liberates the employee from what could be a highly
oppressive work environment. On the other hand, it releases the employer
from the grossly unpalatable obligation of maintaining in its employ a worker
it could no longer trust (Coca Cola v. Daniel, G.R. No. 156893, June 21,
2005, 460 SCRA 494).
THE COMPLAINANT IS ENTITLED
TO PAYMENT OF BACKWAGES, MORAL, NOMINAL
AND EXEMPLARY DAMAGES.
Evidently, the respondents violated the statutory right of the herein
complainant under Article 279 of the Labor Code.
In the case of MCMER CORPORATION, INC. vs. NLRC (G.R. No.
193421 , June 4, 2014), as regards to constructive dismissal, the award of
full backwages, separation pay in lieu of reinstatement, moral, exemplary
and nominal damages is in order pursuant to Article 279 of the Labor Code.
Furthermore, in the case of Lim vs. NLRC (GR No. 79907 March 16, 1989),
the Supreme Court upheld the award of moral as well as exemplary
damages because of the bad faith attendant to the treatment of the
employee. In the case of Jenny Agabon and Virgilio Agabon vs. NLRC (G.R.
No. 158693, November 17, 2004), for illegal dismissal committed by the
employer, they were ordered to indemnify the employee for the violation of
his statutory right which warrants the indemnity in the form of nominal
damages.
Considering that the ordeal suffered by the complainant due to the
unexpected loss of his job, his only source of income, is aggravated by the
fact that it all happened while the country is on the verge of the pandemic,
and that looking for other sources of income is very difficult, foregoing facts
provided that the complainant is deemed proper to receive the
damages prayed for due to illegal dismissal by way of constructive
termination.
PRAYER
 WHEREFORE, premises considered, it is respectfully prayed that
judgment be issued declaring that the complainant has been ILLEGALLY
DISMISSED by the respondents.
FURTHER, it is respectfully prayed that the respondents be ordered to
pay to the complainant the following:
a. BACKWAGES computed from the time of his illegal dismissal on
November 14, 2019, up to the time that a decision
of the Commission becomes final;

b. SEPARATION PAY in lieu of reinstatement computed from the

time of his illegal dismissal on November 14, 2019, up to the
time a decision of the Commission becomes final;

c. MORAL DAMAGES of P200,000.00.

d. EXEMPLARY DAMAGES of P100,000.00.

e. NOMINAL DAMAGES OF P50,000.00

f. Attorney’s fees of Ten Percent of Damages AWARDED.

FINALLY, the complainant respectfully prays for such and other reliefs
as may be deemed just and equitable in the premises.
Most respectfully submitted.
Quezon City, Philippines. ___________________.
BY:
ATTY. ANDREW A. BELGICA
Counsel for the Complainant
17A Sta. Lucia St., San Antonio Ave.,
San Antonio, Parañaque City
Roll of Attorneys No. 74499
IBP No. 15653; 07/22/2020; Manila
PTR No. 2414615; 07/07/2020; Parañaque City
MCLE Compliance No.: ( Newly Admitted )
Email Address: atty.andrewbelgica@gmail.com
Tel. / Cel. Nos. 85142413/ 09185673952
COPY FURNISHED:
ALPHAFORCE SECURITY AGENCY,
JESSAMYN S. NUÑEZ, ROGER G. TAPAYAN,
JIGSAW ROY O. CARTAS,
Respondents
Basement 4, Alphaland Makati Place, Ayala Ave.,
City of Makati, Metro Manila.
REPUBLIC OF THE PHILIPPINES)
CITY OF PARAÑAQUE )SS.

VERIFICATION AND CERTIFICATION

AGAINST FORUM-SHOPPING
I, JEIME Y. ORTIZ, married, of legal age, Filipino and a resident of
B87 L02, Phase 12A, Wellington place Pasong Camachile II, City of General
Trias, Cavite, after having been duly sworn to in accordance with law, do
hereby depose and state that:
1. I am the Complainant in the above-captioned case;

2. I have caused the preparation of the foregoing position paper

3. I have read the allegations contained therein and hereby certify

that the contents of which are all true and correct to the
best of my personal knowledge, information and belief;

4. I certify that neither have I commenced nor is there any pending case
or proceeding of similar nature before any court, tribunal or
quasi-judicial agency, and if I should hereafter learn that the same or
similar Petition has been filed or is pending in any court, tribunal or
quasi-judicial agency, I shall report the fact within five (5)
days therefrom to this Honorable Labor Arbitration Office.
IN WITNESS WHEREOF, I have hereunto set my hand this
____________ day of ____________ 2020 in ____________ City.
JEIME Y. ORTIZ
Complainant
SUBSCRIBED AND SWORN TO BEFORE ME in ____________________ on
___________________, 2020,affiant showing his competent proof of
identity as follows: _______________________________
Notary Public
Doc No.
Page No.
Book No.
Series of 2020
EXPLANATION
Copies of the foregoing Position Paper are being filed and serviced through
personal service.