Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION Regional Arbitration Branch No. VIII Tacloban City
ELDON L. LAMPAYAN, Complainant , NLRC RAB VIII Case No. VIII 12-00276-11
-versusPARAMED PHARMA INC., Respondent. x- - - - - - - - - - - - - - - - - - - - - - - x
POSITION PAPER FOR THE RESPONDENT- PARAMED PHARMA INC. RESPONDENT, by the undersigned counsel, and unto this Honorable Regional Arbitration Branch VIII of the National Labor Relation Commission (NLRC) most respectfully files the herein POSITION PAPER detailing the facts and legal basis on the nonliability by the respondent of illegal dismissal charge of the complainant. On the contrary, it is the respondent which has cause for action against the complainant for non-remittance of the actual receivables, misappropriation misappropriation and/ or fraud in the handling of funds to the great prejudice of the company. STATEMENT OF THE CASE Just Justic icee DEL CASTILLO in the case of RENO FOODS, INC., and/or VICENTE KHU, versus Petitioners, Nagk Nagkak akai aisa sang ng Laka Lakass ngMa ngMang ngga gaga gawa wa (NLM) - KATIPUNAN on behalf of its member, NENITA CAPOR, Respondent [G.R. No. 164016, Marc March h 15, 15, 2010 2010]] aptly characterized compassion for the unfortunate in labor cases stating that, there is no legal or equitable just justif ific icat atio ion n for for awar awardi ding ng fina financ ncia iall assi assist stan ance ce to an empl employ oyee ee who who was was dismissed for stealing stealing company property. Social justice and equity are not magical formulas to erase the unjust acts committed by the employee against his employer. While compassion for the poor is desirable, desirable, it is not meant to coddle those who are unworthy of such consideration.
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This is an illegal dismissal case filed by Eldon Lampayan an employee of the herein respondent company before the NLRC Regional Arbitration Branch VIII seeking the award of the following: underpayment of wage, separation pay, service incentive leave pay, vacation/ sick leave pay and medical benefits. The complaint for such illegal dismissal case was filed last December 20, 2011 after having been required to answer by a memorandum to explain his shortage and/ or non-remittance of sales in total amounting to One Hundred Fifty Three Thousand Eight Hundred Twenty Three Thousand Pesos and Ninety Seven Centavos (P153,823.97). Instead of explaining or answering the memorandum, the herein complainant rather absented himself and have not showed up in the company. Surprisingly, on the mentioned date filed a complaint alleging among other that he was illegally and constructively dismissed from his employment. ANTECEDENT FACTS Respondent, PARAMED PHARMACEUTICALS INC., is a corporation duly organized and existing under and by virtue of laws of the Republic of the Philippines. It is engaged in the distribution of medicines and other medical products within the Eastern Visayas Region. It has its principal office at 400 Real Street, Tacloban City. The company employs about ten (10) personnel including sales representatives who are to book sales or sell medicines to the pharmacies in the region. The company had been operating for more than ten (10) years already. Complainant was hired as sales representative sometime on October 2003. His function as such is to book sales of medicines and other medical products to customers usually pharmacies within the covered area. Forming part of his salary is the commission which he receives upon meeting the quota and the amount of which is based on his gross sales for a particular period of time or for the month. The quota very much attainable and reasonable as it is based on the average work as a sales representative. The market is identified and the work is routinely. Thus, the sales representatives are more or less guaranteed an income more than the minimum wage earners. A monthly audit is being conducted by the company on the stocks at the warehouse, sales and the dispatched or delivered medicines by the sales representative. The company had been experiencing some losses and difficulties in the payment of its 2
suppliers on the year 2011. However, on the company’s computerized accounting system, it appears that all of the supplies dispatched and sold and on the records of stocks in the warehouse are balanced. Nonetheless, the cash flow or influx of the cash remitted from the sales appears to be inadequate or deficient. This has prompted the company to make an investigation and close scrutiny in the accounting of goods sold and the corresponding remittance of money. The investigation started with the manual accounting and verification of the stocks vis-à-vis the corresponding remittances. It turned out in the investigation that the stock clerk by the name of RICHARD LATORRE is being bribed by the complainant for the stock clerk to make manipulations on the INVENTORY OF STOCKS and the QUANTITY OF STOCKS being loaded and eventually sold to customers. By this scheme, the discrepancies and the deficiencies in the remittances by the complainant are concealed or covered. The stock clerk was made to explain the matter through a memo issued unto him dated September 5, 2011. Attached as ANNEX “1” is a copy of the said memorandum to Richard Latorre. On confrontation with Richard Latorre, he admitted to have been receiving amounts of money from the complainant. In turn he is to manipulate the entries in the inventory and the entries into the accounting system to hide discrepancies in the remittance of sales. The scheme had been going on for a period of time already until such time. Copy of the affidavit of Richard Latorre of such matter is herein appended as ANNEX “2.” With this discovery, PARAMED Pharma through its Manager issued a memorandum to the complainant to comment and/ or answer the matter of bribery to the stock clerk. The same memorandum was received by the complainant, however, no answer or explanation was ever made by the complainant. Copy of the memorandum is herewith attached as ANNEXC “3.” On the following month, it was discovered and found out that complainant failed to remit the sales on BOTIKA A&A and POBLACION DRUGHOUSE. The total amount of unremitted proceeds reached Fourteen Thousand Four Hundred Twenty Four and Ninety Centavos (P14, 424.90). A memorandum dated October 1, 2011 was issued unto the Eldon Lampayan again to explain why he should not be sanctioned for his failure to remit the sales and which acts is already misappropriation or grave misconduct on his part. Copy of the memorandum dated October 1, 2011 is attached as ANNEX “4.” For this, the complainant was suspended and audit was 3
conducted of his deliveries and remittances. It turned out that there were other discrepancies on the account of the complainant. By November 12, 2011, another unremitted amount and/ or discrepancy of Ninety Nine Thousand Nine Hundred Eighty Five and Seventy Three Centavos (P99,985.73) was again uncovered. A memorandum on this matter was again issued unto the complainant attached as ANNEX “5.” The memorandum directed him to explain the missing and unaccounted amount. On the year-end inventory conducted by Rufino Ybañez, it was further found out that complainant still has unreported and unaccounted delivery receipts showing that he received an amount but failed to remit the balance to the company. The unremitted balances dates back from transactions made from June 2010 up to November 2011. The total amount of the unremitted amounted to Fifty Three Thousand Eight Hundred Thirty Eight and Twenty Four Centavos (P53, 833.24). Copy of the inventory is attached herein as ANNEX “6.” This amount was added to the other missing amounts or unremitted amounts by the complainant. As of this time, the total incurred liability or misappropriated amount reached the amount P153,823.97. Affidavit of the Rufino Ybañez is attached as ANNEX “7” to form part of the position paper and to show that he conducted an over-all accounting of the funds and stocks of the respondent and found out that there are some unremitted sales or missing stocks the corresponding amount of which is mentioned. As early as September and the following months, the complainant had been issued several memos already. All of which required him to answer and/ or explain the ensuing unremitted amount or missing amounts on his sales. However, these were apparently ignored by the complainant. On November 2011, he was even given an ultimatum that he is to answer the charges leveled against him within Seventy – Two Hours but he chooses not answer it. Rather on December 20, 2011 filed an illegal dismissal case against the herein company. It is very much conspicuous that his action is glaringly premature because there has been no dismissal or severance of engagement. The employee had not even secured clearance from his employment and that the company had not terminated the complainant’s engagement. What was required of the complainant was merely to explain his side but he has chosen not to. For the prejudice done to the company, the herein respondent filed estafa cases against the herein complainant. The acts of misappropriation are 4
a form of deceit that prejudiced the company of its just ownership of the proceeds and thus filed this estafa case. Copy of the complaint affidavit for the crime of estafa is herewith attached as ANNEX “8.” Until this time the herein company is yet to receive any of the answers or replies to the memoranda seeking an explanation. Also, the herein complainant is still to receive TERMINATION NOTICE from the company. STATEMENT OF THE ISSUES For the resolution by the Honorable Labor Arbiter are the respective factual claims of the parties in relation to the employment of the complainant. This will brings us to the core issue on whether there is termination of employment of the complainant and whether the same termination is sufficiently grounded on just cause. Also for determination by the Labor Arbiter is whether complainant is entitled to his claims. In summary, it is respectfully the view of the respondent that complainant was not terminated and thus his action for illegal dismissal is premature. In termination cases it is duty of the complainant to prove first that there has been severance of employment or engagement. Until and unless he proves the same his action will be premature. On the second issue, the complainant is not entitled to his claims as [1] he abandoned his employment, and [2] his entitlement to his claims is dependent on his illegal termination which in this case, he has not sufficiently proven. The view or position of the respondent is further discussed and presented in the arguments. ARGUMENTS FOR THE RESPONDENT
I 1. The complainant has not been terminated. 2. There is no sufficient proof on the part of the complainant that he was terminated 3. Had there been termination it is for just cause as there has been grave misconduct
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II 1. There was abandonment of employment 2. Entitlement to the claim is dependent on illegal termination of employment
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