REPLY POSITION PAPER (for Complainant)

REPUBLIC OF THE PHILIPPINES DEPARTMENT OF LABOR AND EMPLOYMENT NATIONAL LABOR AND RELATIONS COMMISSION NATIONAL CAPITAL REGION QUEZON CITY

MICHAEL DELOS SANTOS HARRIS, Complainant,

-versus-

NLRC-NCR CASE NO. 06-09345-17

WILL DECENA AND ASSOCIATES,INC./ 1. WILFREDO L. DECENA 2. JEAN A. DECENA, Respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - -x

REPLY POSITION PAPER (For the Complainant) COMPLAINANT, COMPLAINANT, by himself and unto to this Honorable Office most respectfully submits this Reply to Respondent’s Position Paper, thus avers that: 1. Complainant denies the allegation of the Respondents’ Position Paper in paragraph 3 alleging that the Corrective Preventive Action Request (CPAR) was not acted nor resolved. The proof of the scheduled plan and action was needed as proof of records or evidence and such must be acted with due process in the renewal of the ISO accreditation. Complainant reiterates that the records must be given to him, but despite the absence of said records, the Complainant resolved the said CPAR for the benefit and interest of the corporation. 2. Complainant denies the allegation of the Respondents’ Position Paper in paragraph 5, paragraph 5, he complied with the said Memorandum and surrendered the said BPI Payroll ATM Card and

REPLY POSITION PAPER (COMPLAINANT) Michael D. Santos vs Will Decena & Associates, Inc. NLRC-NCR Case No. 06-09345-17

said this was acknowledged by the Company’s HRD Assistant Mr. Jeric Cabildo. It is clear that Complainant did not fail to follow f ollow the instruction in the Memorandum issued by the Corporation. 3. Complainant denies paragraph 7 of the Respondents’ Position Paper, Respondents act of withholding the Complainant’s salary compelled him to file his leave of absence as he was financially constraint to sustain his needs in going to and fro from work and also for his daily living as his only source of his income is his salary from the company. 4. Complainant denies paragraphs 10, 12, 13 and 14 of the Respondents’ Position Paper, he reported back to work but his deployment was withheld and he was told that by the HR that a Memo and a Show Cause Order/ Notice to Explain was sent to him, but in truth and in fact, no such thing was received by the Complainant. Instead, he was issued a Preventive Suspension. The basis of issuing a preventive suspension is found in Section 8 of Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997 which provides: Section 8. Preventive suspension. The employer may place the worker concerned under preventive suspension only if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.” co-workers.”

“

It can be seen that the issuance of the Respondents of Preventive Suspension is unreasonable and unjustifiable remedy to place the Complainant in preventive suspension as there was no serious and imminent threat to

2 |P |P a g e


the life and property that affects the company’s operations. 5. Respondents’ allegation allegation in paragraph 15 is also denied having no basis in fact. The truth is that I was contacted by the Admin. Vice President of the Company who was then my boss way back 2012 and offered me to go back to the Company and offered me to work. This is a sufficient proof that I have a satisfactory performance and that I am of good moral attitude since I have established a good working relationship with the company which prompted them to rehire to work for them as Health and Safety Manager. The trust and confidence they have reposed in me is a clear indication and proof that I observe good conduct and attitude towards them and follows rules and instructions directed to me.

6. Complainant denies paragraphs 16 and 17 of the Respondents’ Position Paper Paper having committed serious violation of the Complainant’s Complainant’s statutory and constitutional right to due process for terminating the Complainant’s Probationary Employment. Employment. In the case of Court in Abbott in Abbott Laboratories et.al vs. Alcaraz, G.R. No. 192571, July 23, 2013, 2013 , a Probationary Employee, like a regular employee, enjoys security of tenure. However, in cases of probationary employment, aside from just or authorized causes of termination, an additional ground is provided under Article 295 of the Labor Code, i.e., the probationary employee may also be terminated for failure to qualify as a regular employee in accordance with the reasonable standards made known by the employer to the employee at the time of the engagement. Thus, Thus, the services of an employee who has been engaged on probationary basis may be terminated for any of the following: (a) a just or (b) an authorized cause; and (c) when he fails to qualify as a regular employee in 3 |P |P a g e


accordance with reasonable prescribed by the employer.

standards

Corollary thereto, Section 6(d), Rule I, Book VI of the Implementing Rules of the Labor Code provides that if the employer fails to inform the probationary employee of the reasonable standards upon which the regularization would be based on at the time of the engagement, then the said employee shall be deemed a regular employee, viz.: (d) In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee. In other words, the employer is made to comply with two (2) requirements when dealing with a probationary employee: first, the employer must communicate the regularization standards to the probationary employee; and second, the employer must make such communication at the time of the probationary employee’s engagement. If the employer fails to comply with either, the employee is deemed as a regular and not a probationary employee. Furthermore, the Complainant was denied of his right to due process of law for outright dismissal by the Respondent Company. The latter should have given the former proper notice prior to his termination. A written notice informing the Complainant the ground for his dismissal as well as a subsequent notice informing the complainant of the company’s final decision to terminate its probationary employment. In such a case, the Respondent Company has been inconsistent with the rule; hence his employment termination was not lawful.

4 |P |P a g e


7. Respondents claim that the Company’s officers should not be impleaded as party-respondents hold no water. As held by the Court in the case of Polymer Rubber Corp. v. Salamuding, G.R. 185160, it states that: In labor cases, corporate directors and officers are solidarily liable with the corporation for the termination of employment of employees done with malice or in bad faith. As officers of the company, they can be impleaded as party-respondents as they are acting in the interest of the corporation. 8. Complainant is entitled to the payment of backwages and damages. Due to the bad faith, malice, discriminatory, unfair and disdain acts of Respondents as discussed above, it caused wounded feelings, embarrassment, humiliation, emotional shock and sleepless nights to Complainant entitling him of Moral Damages and Exemplary Damages since dismissal was effected in wanton, oppressive, or malevolent manner. Settled is the rule that an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges, and to his full backwages, inclusive of allowances and to his other benefits or their monetary equivalent computed from the time his compensation was withheld up to the time of actual reinstatement. If reinstatement is not possible, however, the award of separation pay is proper. In the case of Aliling Aliling v. Feliciano, Feliciano , citing Golden Ace Builders v. Talde Talde,, the Court explained: Thus, an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. The two reliefs provided are separate and

5 |P |P a g e


distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages. The normal consequences of respondents’ illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. The payment of separation pay is in addition to payment of backwages. 9. The rest of the Respondents’ are mere conclusions of law without factual basis in any material respect.

PRAYER WHEREFORE, WHEREFORE, premises considered, it is hereby respectfully prayed that this Reply to Respondents’ Position Paper be duly given due credence and consideration. Further, judgment be rendered in favor of the Complainant. Finally, Complainant respectfully prays for such other reliefs that this office may deem just and equitable under the premises. ___ day of ____________ 2015 at City of San Jose Del Monte, Bulacan, Philippines. Philippines.

MICHAEL DELOS SANTOS HARRIS Complainant

6 |P |P a g e


Copy Furnished:

Will Decena& Associates Inc. Wilfredo L. Decena and Jean A. Decena #70 Tandang Sora Ave., Quezon City

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING I, MICHAEL DELOS SANTOS HARRIS, of legal age, widower, and a resident of #293 Brgy. San Martin De Porres, City of San Jose Del Monte under oath states that: 1. I am the Complainant in the instant case; case; 2. I have caused the preparation of the foregoing Reply to Respondents’ Position Paper; 3. That I have read and understood the contents thereof; 4. That the allegations therein are correct and true to the best of my knowledge and belief and based on authentic records. Done this ___ day of September 2017, City of San Jose Del Monte, Bulacan. MICHAEL DELOS SANTOS HARRIS Affiant I.D. ______________ ______________ Issued on __________ at _______ SUBSCRIBED AND SWORN TO before me this ___ day of September 2017 in _____________________________ with the affiant showing me his competent evidence of identity.

NOTARY PUBLIC

7 |P |P a g e

REPLY POSITION PAPER (for Complainant)

Recommend Documents