REPUBLIC OF THE PHILIPPINES

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
NCR Regional Arbitration Branch
Quezon City

XXXXXX,
Complainant,

- versus - NLRC RAB NCR Case No. XXXXXXXXX


XXXXXXXXXXXXXXXXX.,
Respondents.
x-------------------------------------------------x


POSITION PAPER


COMPLAINANT, by counsel, unto this Honorable Office, respectfully
states:
I. THE CASE

This case filed by complainant against respondents is one for illegal
dismissal, underpayment of salaries, non-payment of: (a.) night shift
differential of 10% on top of complainants salary, (b.) service incentive
leave pay which is commutable to its money equivalent at the end of the
year, (c.) thirteenth (13
th
) month pay, as well as claims for reinstatement
and backwages and full benefits, compensatory damages, moral and
exemplary damages, and attorneys fees.


II. THE PARTIES

Complainant is of legal age, Filipino and with address at 469 C
Commonwealth Avenue, Quezon City; while respondents are
xxxxxxxxxxxxxxxxxxxx, a corporation duly organized and existing under the
laws of the Philippines, with business address # 6087 Tatalon Street, Barrio
Ugong, Valenzuela City, while respondent xxxxxxxxxxxxxx is of legal age, the
owner and General Manager of respondent corporation with the same
address at # 6087 Tatalon Street, Barrio Ugong, Valenzuela City.


III. THE STATEMENT OF THE FACTS AND THE CASE


Complainant is a regular employee of respondents, he was hired by
respondents on January 8, 2011 and worked as mixer operator receiving a
salary of Two Hundred Ninety Two (Php 292.oo) Pesos only per day for a
straight eight-hours (8 hours) night shift work from ten in the evening
(10:00 pm) up to six oclock in the morning (6:00 am) without receiving the
correct minimum wage and the corresponding night shift differential pay.
Sometimes complainant was scheduled to work on a day shifting schedule
but still respondents did not pay complainant his correct minimum wage
rate. During the entire duration of complainants employment with
respondents, complainant was not paid his (a.) correct minimum wage, (b.)
night shift pay, (c.) service incentive leave pay, and thirteen 13
th
month
pay, until the time complainant was illegally dismissed by respondents from
his work.

On September 1, 2012, a Saturday, complainant made known to
respondents that he will be taking his rest day on the following day
September 2, 2012 which is a Sunday. On said date (September 2, 2012),
complainant attended a gathering with friends and on said occasion he was
made drunk, nonetheless, the following day which is a Monday (September
3, 2012) complainant had still managed to report for work, however,
complainant was called in by respondents to report to the office of the
management for a meeting. In the said meeting, respondents asked
complainant where he was last September 2, 2012 which was a Sunday, he
told respondents the truth that he attended a gathering, and this situation
made respondents got mad at complainant. Complainant anyway
apologized for such incident even if he knows that said date (a Sunday) is a
supposed rest day of worker like him.

Come September 7, 2012, after complainants work schedule, Miss
Susan the secretary of respondents company told complainant that the
management was mad at him when he did not report to work last Sunday
(September 2, 2012) and he was told he was terminated and he cannot
report to work anymore, in fact Ms. Susan had required complainant to sign
the ready made resignation paper and he was told he will be receiving a
substantial amount in exchange for his voluntary resignation; complainant
naturally refused to sign said resignation paper because he wanted to work
and not to resign from the corporation. Previous to his illegal dismissal,
complainant was lucky to get ahead of his salary for that week.

After such incident, complainant was not allowed anymore to enter
the company premises. Thus, he sought legal counsel and assistance from a
lawyer in order to protect his rights and interest, and this case was
eventually filed before this Honorable Office.

Complainant was illegally dismissed on September 7, 2012, without
complainant receiving his full salaries under the minimum wage law and
without receiving payment for his night differential, service incentive leave
pay and thirteen (13
th
) month pay for all his entire stay when he worked
with the respondents.

During the mandatory conciliation, complainant manifested his
willingness to return to his work but respondents refused to accept
complainant. Respondents instead offered only a settlement of a low
amount compared to the amount that is lawfully due to him, hence this
position paper.

IV. ISSUES

1. WHETHER OR NOT COMPLAINANT WAS ILLEGALLY DISMISSED,
WITHOUT DUE PROCESS OF LAW, AND DEPRIVING HIM OF HIS RIGHT
TO TWIN NOTICES RULE
2. WHETHER OR NOT COMPLAINANT IS ENTITLED TO REINSTATEMENT
WITH FULL BACKWAGES AND FULL BENEFITS AS PROVIDED FOR
UNDER THE LABOR CODE

3. WHETHER OR NOT COMPLAINANT IS ENTITLED TO SALARY
DIFFERENTIAL FOR HIS UNDERPAID SALARIES, AND MONETARY
BENEFITS FOR HIS UNPAID SERVICE INCENTIVE LEAVE PAY, NIGHT
DIFFERENTIAL, AND THIRTEENTH (13
TH
) MONTH PAY

4. WHETHER OR NOT COMPLAINANT IS ENTITLED TO COMPENSATORY
DAMAGES, MORAL DAMAGES, EXEMPLARY DAMAGES AND
ATTORNEYS FEES.



V. ARGUMENTS


Complainant is a regular employee of respondents. His services is
necessary and indispensable to the business of respondents which is the
production of pellets. Basically, complainants services is among the back
bone of respondent business because complainant is a mixer operator.

Complainant has worked with the respondents as a regular
employee, and in the absence of just and authorized causes respondents
would just tell complainant not to report anymore because he was fired on
alleged ground that the management was mad at him. Worst of it is the
fact that he was not even afforded with the twin notices rule, that is, he
was denied procedural due process of law. Complainant wanted to work,
and in fact, he did not sign the pro-forma resignation letter prepared by
respondents and as a consequence respondents refused to accept him to
work, and this is even manifested during the mandatory conciliation of this
case because respondents categorically did not want complainant to go
back to work when complainant manifested before this Commission his
readiness and willingness to report back to work.

The above reasons are clear indications that complainants dismissal
is illegal. It is of elementary rule that in illegal dismissal cases, the burden of
proof is always upon the employer. In this case, respondents have no iota
of evidence that they have satisfied the above discussed rights of
complainant with respect to his substantial and procedural due process. No
just or authorized causes exist to terminate complainant, and even
assuming for the sake of argument without however admitting that one
circumstance exists, the twin notices rule was not faithfully complied with.
Thus, complainant dismissal is illegal hence entitles him pursuant to law the
right to: a) reinstatement, b) payment of backwages until actual
reinstatement, and c) full benefits.

On the issue of complainants monetary claims:

The entitlement to legal salary is both a human and international
recognized statutory right of all kinds of workers. The deprivation of ones
salt or salary is denying ones source of living especially if the said wage is
the only bread and butter for ones family to survive and live. The reduction
or underpayment of lawful wage that a worker ought to receive is likewise
a violation of a workers human rights.

Complainant in this case was denied his lawfully due daily wage as
mandated by law.

Respondents took advantage of the weakness and ignorance of
complainant about his rights to his legal minimum wage. Respondents
refused and neglected to give to complainant the correct and complete
minimum wage / salary for regular employees working in Metro Manila.
Thus, he is entitled to his salary differentials and interest thereof.


THE SALARY DIFFERENTIAL:


The salary differential complainant has to receive is the total amount
of FORTY SEVEN THOUSAND FIFTY EIGHT Pesos (Php 47,058.oo) computed
as follows, to wit:

For the first year of complainant starting January 2011, complainant
was only receiving the amount of Php292.oo per day while the minimum
wage for such period is Php404.oo hence there is a difference of Php112.oo
per day. Thus: P112 x 5 days x 4 weeks (in a month) x 12 months in a year =
Php26,880.oo

For the year 2012, February 2012 up to June 2012, complainant was
also receiving the amount of Php292.oo per day while the minimum wage
for such period is Php404.oo hence there is a difference of Php112.oo per
day. Thus: P112 x 5 days x 4 weeks (in a month) x 5 months = Php11,200.oo

For the remaining year of 2012, that is, July 2012 to September 7,
2012, complainant was receiving only the amount of Php292.oo per day
while the minimum wage for such period is Php426.oo hence there is a
difference of Php134.oo per day. Thus: P134 x 67 days = Php8,978.oo

For blatant violation by respondents of non-paying rightful and legal
salaries of complainant, complainant is also entitled to legal interest on his
underpaid salaries.

Likewise, respondents failed and refused to pay complainants lawful
right to his night differential because complainants work schedule was
from 10:00 pm to 6:00 am, plus he was not paid for his service incentive
leave pay and 13
th
month pay.

Also, respondents are liable to pay complainant moral damages
because of the wounded feelings he suffered from the respondents and the
deprivation of his rights which caused him sleepless nights and anxiety. Also
respondents should pay complainant exemplary damages in order to set an
example to the respondents and the general public not to violate the legally
mandated minimum wage and not to shortchange the salaries of
complainant.

The fact that complainant has to secure the legal services of counsel
in order to protect his rights and interests, complainant is entitled him to
recover the allowable attorneys fees.


VI. RELIEFS SOUGHT

WHEREFORE, premises considered, it is most respectfully moved that
a judgment be rendered against the respondents declaring them guilty of
illegal dismissal and ordering the reinstatement of complainant with full
backwages until actual reinstatement with full benefits, and ordering the
respondents, jointly and severally, to pay complainant the following:

a.) The amount of FORTY SEVEN THOUSAND FIFTY EIGHT Pesos
(Php 47,058.oo) Pesos representing the underpaid salaries of
complainant, plus legal interest thereon until full payment;

b.) The payment of complainants night shift differential;

c.) The payment of complainants service incentive leave pay;

d.) The thirteenth month pay of complainant for his entire stay
with the respondents;

e.) The amount of Ten Thousand (Php10,000.oo) as moral
damages;

f.) The amount of Ten Thousand (Php10,000.oo) as exemplary
damages; and

g.) The equivalent of 10% of the total judgment award as
attorneys fees.

Other reliefs just and equitable in the premises are likewise sought.

Mandaluyong City for Quezon City, October 30, 2012.