Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATION COMMISSION National Capital Region Quezon City CATHERINE TOLENTINO and RAYMUND MILAN C. VIERNES, Complainant, -versusNCR-08-11862-11 COGNIZANT TECHNOLOGY SOLUTIONS PHILIPPINES, INC. / SRIRAM V. RAJAGOPAL, Respondent. x- - - - - - - - - - - - - - - - - - - - - - - - - - -x
MEMORANDUM OF APPEAL COMES NOW, complainant, RAYMUND MILAN C. VIERNES, assisted by the Public Attorney’s Office, through the undersigned counsel and unto this Honorable Office, by way of appeal, most respectfully moves for this Honorable Commission for the setting-aside of the decision issued by the Honorable Labor Arbiter Corazon C. Borbolla finding for respondents and humbly posits the following: STATEMENT AND NDATURE OF THE CASE 1.
This
is
originally
a
complaint
for
illegal
dismissal
of
a
probationary employee, reinstatement, moral and exemplary damages, and other relief. 2.
After a series of mandatory conferences, Complainant Catherine
Tolentino settled her claims with Respondents, while no amicable settlement was reached with respect to Complainant Raymund Milan C. Viernes; hence, they were required to submit their respective position
1
paper. After the submission of their position papers and appropriate replies thereto, the case was submitted for resolution. 3.
On 29 June 2012, a DECISION was issued by Honorable Labor
Arbiter Corazon C. Borbolla, in favor of Respondent-Appellee and against Complainant-Appellant, dismissing the case for lack of merit. A copy of the decision is hereto attached as “ANNEX A” and made an integral part of this memorandum. 4.
From the foregoing, Complainant-Appellant wishes to invite the
attention of this Honorable Commission to the existence of certain facts of the case that the Honorable Labor Arbiter may have overlooked in arriving at her Decision dated 29 June 2012. These facts, if taken into consideration would effectively negate the finding that complainant failed to meet the company standards during his probationary employment, which was the basis for the dismissal of his case. If these facts are not considered, the same would cause grave and irreparable injury to the complainant-appellant. To this end, the complainant humbly seeks the nullification of the said decision and the consequent declaration that the complainant-appellant was illegally dismissed. TIMELINESS OF THE APPEAL
5.
Complainant-Appellant received the above-mentioned decision
on 23 July 2012. Pursuant to the 2011 NLRC Rules of Procedure, complainant-appellant has ten (10) days from receipt of the decision within which to file this appeal. Counting ten (10) days from said date, the last day of filing a memorandum of appeal is 2 August 2012. Hence, the filing of this memorandum is within the reglementary period to file an appeal. 6.
As also required by the 2011 NLRC Rules of Procedure,
Complainant-Appellant paid the appeal fees. THE PARTIES
2
7.
Complainant-Appellant, RAYMUND MILAN C. VIERNES, is of legal
age, Filipino, married and presently residing at 1656 Caton St., La Paz, Makati City. 8.
Respondent COGNIZANT TECHNOLOGY SOLUTIONS PHILIPPINES,
INC. (“Cognizant” or “Respondent Cognizant” for brevity), is a business entity located at 5th and 6th Floors, 810 Mckinley Building No. 8 Upper Mckinley Road, Mckinley Town Center, Fort Bonifacio, Taguig City, while respondent SRIRAM V. RAJAGOPAL (Respondent Rajagopal for brevity) is the Vice President for Human Resources of Cognizant. STATEMENT OF FACTS 9.
On 4 February 2011, Cognizant hired Complainant Viernes as a
probationary employee with the position of Senior Process Associate – Customer Support. Under his contract and employment agreement, he was hired for a probationary period of six (6) months. 10.
Viernes was made to undergo several trainings required by
Cognizant, which he passed, and was eventually endorsed to Operations. 11.
On 11 April 2011, he was assigned to the team of Mr. Aris
Roberto. Mr. Roberto explained the performance standards, or metrics, which Viernes has to pass in line with Cognizant’s regularization and confirmation standards. 12.
As explained to Viernes, he has to pass the company standards
set by Cognizant for his regularization. His performance is evaluated through his metrics, which is computed through Scorecards. He will have to secure an Overall Performance Rating between “2.00” and “4.00” (from “Meets all Expectations” to “Exceeds all Expectations”). 13.
Notably, the Scorecards of Viernes indicate that he
“Meets all Expectations”. His scorecards are marked as Annex “C” to Annex “E” in Complainant’s Position Paper. 14.
Another factor in evaluating the performance of Viernes is based
on the employee’s and the immediate supervisor’s mutually collated 3
inputs, or assessments. This is done through a
Performance
Evaluation Form accomplished both by the employee and his immediate supervisor on the third (3rd) and fifth (5th) month of their tenure with Cognizant. 15.
Under the Employee Handbook (marked as Annex “B” of
Complainant’s Position Paper), a probationary employee shall undergo performance evaluation and appraisal. The pertinent provision is quoted below for the convenience of this Honorable Commission: “D. Performance Evaluation and Appraisal
Assessing performance provides an opportunity wherein a manager and an associate may reach a mutual understanding of the results of the associate’s performance for the predetermined period, as well as an opportunity to validate how the associate’s performance compares to the expectations initially identified. The performance of all probationary associates shall be evaluated by their immediate supervisors on the third (3rd) and fifth (5th) month of their tenure with the Company. Probationary associates shall assess their own performance by accomplishing the Performance Evaluation form. This selfassessment shall be based on inputs from customers/clients, peers, other associates, and available data as applicable, and must be made as a comparison of the associate’s actual performance against performance expectations. Accomplished forms must be submitted to the associate’s immediate supervisor. All people managers must assess the performance of their direct reports. This assessment shall be based on inputs from the associate’s customers/clients, peers, co-associates, available data, as applicable, and self-assessment, and must be made as a comparison of the associate’s actual performance against performance expectations. All people managers are expected to conduct a formal closeddoor discussion with their direct reports individually to communicate the details of the assessment, and finalize the evaluation by accomplishing the performance evaluation form. Upon reaching an agreement, the probationary associate and the immediate supervisor shall sign off on the finalized performance evaluation form. One copy shall be maintained by the associate, another by the immediate supervisor and one copy must be forwarded to the HR Talent Management Team for safekeeping in the associate’s personal files. All people managers shall upload their associates’ fifth (5th) month performance rating on the Human Capital Management system (HCM).” (Employee Handbook p. 16; emphasis supplied)
16.
Allegedly, the performance evaluation mentioned above was not
observed during the tenure of Complainant-Appellant. Nonetheless, he
4
continued to diligently perform his duties as tasked by his supervisors. He completed the tasks given to him for his regularization. 17.
To Viernes’ surprise however, Cognizant gave him a letter dated
2 August 2011 informing him that he is terminated effective immediately for his failure to meet the standards of Cognizant. His dismissal was without warning, proper evaluation/assessment as discussed to him during his probationary employment, and without prior notice.
ASSIGNMENT OF ERRORS AND/OR ISSUES I. THE HONORABLE LABOR ARBITER COMMITTED ERROR IN ITS FINDINGS OF FACT TO SUPPORT ITS DECLARATION THAT THE DISMISSAL OF THE COMPLAINANT-APPELLANT WAS JUSTIFIED BECAUSE HE PERFORMED POORLY AND FAILED TO MEET THE STANDARDS OF HIS EMPLOYER DURING HIS PROBATIONARY EMPLOYMENT. II. THE HONORABLE LABOR ARBITER GRAVELY ABUSED ITS DISCRETION WHEN IT DID NOT AWARD THE MONEY CLAIMS OF COMPLAINANT-APPELLANT.
ARGUMENTS AND DISCUSSIONS I. COMPLAINANT-APPELLANT WAS ILLEGALLY DISMISSED. 18.
It is most respectfully submitted that the Honorable Labor Arbiter
erred in declaring that Complainant-Appellant’s dismissal is justified because
he
failed
to
meet
the
qualification
standard
set
by
Respondents-Appellee. Essential facts to this case were overlooked in arriving at the Decision subject of this appeal. These facts, if considered, would negate the finding of gross negligence on the part of the complainant. It is the humble opinion of Complainant-Appellant that the Honorable Labor Arbiter failed to consider the following facts:
5
A. It can be inferred from the score cards of ComplainantAppellant that he meets the standards of the company. 19.
Scorecards are given by Respondents to its probationary
employees showing the quantitative evaluation, in numerical value, of their work for the month. It reflects the scores of a probationary employee in different aspects of his employment and tasks to remind them on specific factors that they need to improve at, if any. 20.
Attached as Annexes “C” to “E” of Complainant’s Position Paper
are the scorecards of Complainant Viernes for the months of April, May and June 2011. Notably, all of these scorecards indicate that he “meets all expectations.” This is clear indicia that he passed the metrics or factors comprising the evaluation of a probationary employee. 21.
These scorecards were not denied by Respondents. While they
alleged
that
these
scores
only
represent
specific
months
of
Complainant’s tenure, no scorecards were given for the rest of the sixmonth term. 22.
The appealed decision based its findings solely on Complainant’s
coaching logs marked as Annexes “C” to “G” of Respondent’s Position Paper. These, however, do not measure the overall evaluation of Complainant’s performance. As these documents are appropriately titled, they are reports to correct its employees and tell them how their work should be done – to teach them what to do. It is not unusual for a new employee to adjust with his work while he is still learning the ropes and policies of his new employer, such as the case of Complainant. 23.
Significantly, these coaching logs were made on the months of
March, May and June 2011. It is clear, however, that Complainant passed in his scorecards for May and June 2011. Simply put, Complainant may have had a few errors in handling calls; nonetheless, his scores still indicate that he meets all expectations. This further bolsters the fact that Complainant improved the quality of his work sufficient for him to meet what is expected of him. In fact, his supervisor even commended Complainant for his improvement in a
6
Performance Feedback attached as Annex “F” of Complainant’s Position Paper. B. The procedure in assessing probationary employees, as stated in the Employee’s Handbook, was not observed in Complainant-Appellant’s evaluation. 24.
The Employee’s Handbook also provides for the procedure in the
evaluation of a probationary employee. This handbook was never denied by Respondents. The pertinent text is quoted above in paragraph 15. 25.
It is important to note that the provisions in this handbook are
deemed part of the contract between the company and complainant. 1 Hence, compliance in good faith should be observed as is any other ordinary contract. 26.
Under the second paragraph of said provision, the performance
evaluation and assessment should be done on the 3rd and 5th month of an employee’s tenure. None of these were followed in the case of Complainant-Appellant. 27.
It is also provided under the third paragraph that a self-
performance evaluation made by the employee shall be conducted. No such opportunity was provided to the Complainant-Appellant. 28.
People managers should have also conducted a formal closed-
door discussion to communicate the details of the assessment in finalizing the evaluation. Again, it was not done in this case.
1
“1. Your Employment Contract
xxx Provisions with regard to the terms and conditions of your employment, renewal of contract, scope of work, remuneration and benefits, social insurance and statutory benefits, employment discipline, termination by the employer and/or employee, confidentiality and compliance, training, breach liabilities and dispute resolutions not specifically covered in the Employment Contract shall be governed by the provisions indicated in the Employee Handbook. Thus, the policies and provisions indicated here in this Employee Handbook are incorporated and are considered as a part of your Employment Contract and shall thus subsequently be basis for decisions to be made in relation to your employment with Cognizant Technology Solutions Philippines, Inc.” (Employee Handbook p.7; emphasis supplied)
7
29.
To justify the dismissal of Complainant, Respondents crows that
Complainant failed his Performance Evaluation Form (Annex “M” of Respondent’s Position Paper). 30.
While a Performance Evaluation Form was made, it was far from
being in conformity with the procedure explained during Complainant’s orientation and as contained in the Employee’s Handbook. It was prepared in a wanton manner to justify Complainant’s illegal dismissal. 31.
Only one performance evaluation form was prepared contrary to
the provision in the Employee Handbook that it should have been done on the third and fifth month of the employee’s tenure. 32.
No close-door discussion was made in the finalization of the
Performance Evaluation Form as provided in the fifth and sixth paragraph of the cited provision of the Employee Handbook. 33.
To excuse Respondent’s failure to follow its own company policies
and rules as contained in the Employee Handbook, they bank their case on a Supreme Court ruling in Mendoza v. NLRC. However, the same case says that strict observance of company procedures is not required provided essential requirements of due process must be observed. 34.
The most essential requirement of due process is the opportunity
to be heard. In the case of Complainant, he was not provided an opportunity to participate in his final performance evaluation as provided for in Respondent’s own Employee Handbook. In effect, Respondent denied him his right to be heard. 35.
Had the foregoing facts been taken into consideration, the
decision would have found this case for what it is – a case of illegal dismissal. 36.
Consequently, Complainant-Appellant is entitled to reinstatement
and back wages from the time he was terminated, as well as moral and exemplary damages.
8
II. COMPLAINANT-APPELLANT IS ENTITLED TO AT LEAST HIS UNPAID WAGES FOR TWO WEEKS. 37.
There was grave abuse of discretion when the decision did not
include an order for at least the payment of two weeks’ worth of salary, which Respondents have not yet given to Complainant because of the filing of this case. This was also not repudiated by Respondents, when they could have easily shown a receipt or document as proof that they paid Complainant’s last salary.
PRAYER WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Commission that an order be issued NULLIFYING and SETTING ASIDE the Decision of the Honorable Labor Arbiter dated 29 June 2012 and in lieu thereof, an order be issued declaring the complainant illegally dismissed and entitled to all his monetary claims, including moral and exemplary damages. Such other relief as may be deemed just and equitable under the premises is likewise prayed for. Respectfully submitted. Makati City for Quezon City, 2nd day of August 2012.
PUBLIC ATTORNEY’S OFFICE NCR-Makati District Office Counsel for the Complainants 16th Floor, Makati City Hall Poblacion, Makati City
By:
ATTY. DAVID JULIAN G. PUZON Public Attorney I Roll No. 57304 9
Lifetime Member No. 010064 MCLE No. III-0013210
VERIFICATION / CERTIFICATION
I, RAYMUND MILAN C. VIERNES, of legal age, Filipino, and presently residing at 1656 Caton St., La Paz, Makati City, after having been duly sworn in accordance with law, hereby depose and state, that: 1. I am the complainant-appellant in the above-entitled case. 2. I have caused the preparation of this Memorandum of Appeal, read and understood the contents thereof, which is true and correct of my own knowledge, belief and authenticity of the documents; 3. I have not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and to the best of my knowledge, no such action or claim is pending therein; and 4. Should I thereafter learn that the same or similar action or claim has been filed or is pending, I would report such fact within five (5) days therefrom. IN WITNESS WHEREOF, I have hereunto affixed my signature this 2nd day of August, 2012 at Makati City. RAYMUND MILAN C. VIERNES Affiant
SUBSCRIBED AND SWORN TO before me this 2nd day of August, 2012 at Makati City, affiant exhibiting to me his Social Security Identification No. 33-2886060-2 issued by the Social Security System.
ATTY. ANTHONY RONAR B. CRUZ Public Attorney II 10
Ex-Officio Notary Public (Pursuant to R.A. 9406) Copy furnished: Cognizant Technology Solutions Phils., Inc. Sriram V. Rajagopal 5/F and 6/F, 810 Upper Mckinley Bldg., No. 8 Upper Mckinley Road, Mckinley Town Center Fort Bonifacio, Taguig City 1634
11
