DOCUMENT 3

REPUBLIC OF THE PHILIPPINES

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. 09
Zamboanga City
CLARISSE CERVANTES,
Complainant,
- versus -

NLRC RAB No. 09 Case No. 14-13490-12

Hon. Labor Arbiter PLAGATA
Room 319, Bookman Bldg.

HOLY SPIRIT ACADEMY.,

Represented by Sr. Mary Torres,
Respondents.
x-------------------------------------------------x

POSITION PAPER
RESPONDENT,

by

counsel,

unto

this

Honorable

Office,

respectfully states:
STATEMENT OF THE CASE
This case filed by the plaintiff on July 25, 2014 against
respondents and is one for illegal dismissal, non-payment of salaries,
and other benefits. The plaintiff served as a school cashier for private
respondent Holy Spirit academy but was reasonably dismissed for the
cause of loss confidence. The plaintiff alleges that her termination was
brought about by an incident where there appeared to be a
discrepancy in one of the deposits she made where the amount
indicated in the deposit slip and the money actually received by the
bank did not tally. The sum of Fifty Thousand Pesos (P 50,000.00)
was missing and such loss is presumably due to her acts being the
cashier of the school.
Due to the said loss, the plaintiff was preventively suspended.
Ninety (90) days after the thirty (30) day preventive suspension the
complainant filed this case.
Based on the foregoing, the issues to be resolved in this case
are:
A. WHETHER THE DISMISSAL WAS VALID ON THE GROUND OF LOSS
OF CONFIDENCE OR TRUST.

B. WHETHER THE PLAINTIFF WAS DEPRIVED OF HER RIGHT TO DUE

PROCESS.
STATEMENT OF FACTS
The salient facts of this case are as follows:
1. Complainant is of legal age, Filipino and with address at 469 C
Commonwealth Avenue, Sta. Maria, Zamboanga City; while
respondent is Holy Spirit Academy, an educational institution
duly organized and existing under the laws of the Philippines,
with address # 6087 Tatalon Street, Pasonanca, Zamboanga City,
represented by Sr.

Mary Torres, of legal age, the principal of

respondent school/
2. On July 20, 2014, a Friday, complainant was ordered to deposit
the weeks cash receipt to the bank in the amount of One
Hundred Fifty Thousand (P 150,000.00) Pesos. She acknowledges
the amount and the receipt of the money verbally from Sr. Mary
Torres. Upon her return from the bank, she gave a remittance slip
which only contained the figures showing One Hundred Thousand
(P 100,000.0), she was short of Fifty Thousand Pesos (P
50,000.00). Upon presentation of the deposit slip, Sr. Torres
asked what happened to the P 50,000 not deposited by the
plaintiff. To which, the plaintiff replied that only a Hundred
Thousand Pesos (P 100,000.00) was given to her for deposit. This
was contrary to the documents. As evidenced by Exhibit A, the
cash receipt acknowledged by the Plaintiff was One Hundred Fifty
Thousand (P150, 000.00) pesos.
3. On the same day, Sr. Mary Torres issued a memorandum
temporarily relieving the plaintiff from her position and placing her
under

preventive

suspension

pending

investigation

for

her

neglectful conduct in handling the property of the school. She was

scheduled for a hearing with the school officials on July 24, 2014.
The same memo demanded the plaintiff to adduce arguments and
evidence defending her person.

4. On the day of the actual hearing, the plaintiff did not appear. Her
non-appearance was presumed to be. The plaintiff only came back
to the defendants knowledge when she filed this case.
7. To the defendants shock, the plaintiff filed this case 90 days
after

her

30-day

preventive

suspension

in

July

20,

2014.

5. Hence, this case.

RESPONDENTS POSITION
Complainant has worked with the respondents as a regular
employee, and in the absence of just and authorized causes
respondents she would never be dismissed or suspended. She was
afforded with a notice, that is, she was not denied procedural due
process of law. Complainant did not want to work, and in fact, she did
not appear in the hearing prepared by respondents and continued on
to be absent from work for ninety (90) days prior to the filing of this
case. As a consequence respondents deemed the complainant
resigned from her position, and this is even manifested in her
prolonged absences without a trace even when the respondent tried to
communicate

to

her.

The

respondents

categorically

did

want

complainant to go back to work when complainants thirty (30) day

suspension has elapsed but she manifested her unreadiness and
unwillingness to report back to work. The respondent vigorously denies
that the complainant was not legally dismissed and that her right to
due process was violated.
DISCUSSION
1. The complainant committed acts of dishonesty which lead to
the loss of confidence and trust reposed in him justifying
her

suspension

and

her

ultimate

dismissal

from

employment.
It is of elementary rule that any fraud or willful breach by the
employee of the trust reposed in him or she is a just cause for the
employees dismissal or suspension. To constitute a just cause for
the suspension and the subsequent dismissal, the fraud must be
committed against the employer and in connection with the
employees work.

As shown in Exhibit A, the cash receipt signed by the complainant

that she has received One Hundred Fifty Thousand (P 150,000.00)
pesos in cash to be deposited in the bank paired with her verbal
consent of receipt is a testament to the fact that she indeed had the
money.
As such, upon her return from the bank, she only showed a deposit
slip as shown in Exhibit B that she only deposited One Hundred
Thousand (P 100,000.00) pesos and she could not satisfactorily
explain why or where the remaining Fifty Thousand (P50,000.00)
pesos was. This incident signifies that the employee could no longer
be trusted and that it would be an act of oppression to compel the
school to retain her, fully aware that such an employee could, in the
long run, endanger its very viability.
In countless cases over the years and as incorporated in the case of
Firestone Tire v Lariosa GR No. 70749, February 27, 1987 the
Supreme Court Ruled that:
There is no gainsaying that theft committed by an employee constitutes a valid reason for his
dismissal by the employer. Although as a rule this Court leans over backwards to help workers
and employees continue with their employment or to mitigate the penalties imposed on them,
acts of dishonesty in the handling of company property are a different matter. 8
Thus, under Article 283 of the Labor Code, an employer may terminate an employment for
"serious misconduct" or for "fraud or wilful breach by the employee of the trust reposed in him
by his employer or representative."
If there is sufficient evidence that an employee has been guilty of a breach of trust or that his
employer has ample reasons to distrust him, the labor tribunal cannot justly deny to the
employer the authority to dismiss such an employee.

2. The respondent school had enough proof that there was

misconduct on the part of the complainant to suspend or
dismiss employee.
As ruled by the Supreme Court in the case of Reyes v Minister of Labor,
GR no. 47805, February 9, 1989:
Be that as it may, there is no question that loss of confidence is a valid ground for dismissing
an employee and proof beyond reasonable doubt of the employee's misconduct is not
required. It is sufficient, if there is some basis for such loss of confidence or if the employer
has reasonable ground to believe or to entertain the moral conviction that the employee
concerned is responsible for the misconduct and that the nature of his participation therein
rendered him unworthy of the trust and confidence demanded by his position (City Trust
Finance Corporation v. NLRC, 157 SCRA 87 [1988]; Tabacalera Insurance Co. v. NLRC, 152
SCRA 667 [1987]).

3. The

complainant

abandoned

her

duty

even

after

the

preventive suspension period which led to her ultimate legal

and valid dismissal as an employee.
As shown in Exhibit D, records suggest that after July 20, 2014, the
start of her preventive suspension, she has never come back to her
post to answer the charges against her or perform her duties.
Abandonment of a job is a form of neglect of duty. To constitute
abandonment, there must be a clear and deliberate intent to
discontinue ones employment without any intention of returning back.
Due to the grave misconduct, the complainant abandoned her duty
with no say whatsoever revealing her deliberate intent of not returning.
4. The complainant was only initially suspended pending
investigation and it no way violates her right to due
process.
In a number of Supreme Court cases, it has been ruled that preventive
suspension does not in itself prove that the employer has prejudged
that the employee was guilty of the charges she was asked to answer
and explain. Preventive suspension may be necessary for the
protection of the company, its operations and assets pending
investigation for the alleged malfeasance or misfeasance on the part of
the officers or employees of the company and pending a decision on
the part of the company (Soriano v. NLRC et. Al., 155 SCRA 124
[1987]).
That it does not violate the employees right to due process was
settled in the case of Globe Mackay Cable and Radio Corp. vs. NLRC,
et. al., 206 SCRA 701 [1992] which involves a technical operations
manager who was found to have committed acts in conflict with his
position with the company. The Supreme Court said that such
discovery necessitated immediate and decisive action. By itself,
preventive suspension does not signify that the company has
adjudged the employee guilty of the charges she was asked to
answer and explain.

Respondents counter that Complainant was not dismissed out right

initially but merely placed under preventive suspension pending
investigation of the charges against her. Sections 8 and 9 of Rule XXIII,
Implementing Book V of the Omnibus Rules Implementing the Labor
Code provides:
SEC. 8.

Preventive suspension. The employer may place the

worker concerned under preventive suspension if his continued

employment poses a serious and imminent threat to the life or
property of the employer or of his co-workers.
As shown in Exhibit C, the memo states that she was notified
of her preventive suspension for thirty (30) days and a schedule for
hearing to which she did not attend. The respondent merely
exercised its management rights to discipline the said employee.
5. Finally, the complainant was accorded her right to due
process including a hearing and investigation by the
serving of a notice on her which she ignored.
Such disciplinary measure of preventive suspension is resorted to for
the protection of the schools property pending investigation of any
alleged malfeasance or misfeasance committed by the employee. The
complainants right to due process was not violated when she was
promptly suspended. If at all, the fault lay with her when she ignored
the schools memorandum giving her ample opportunity to present her
side to the management. Instead she went absent for ninety (90) or
more days and directly to the labor department and filed her complaint
for illegal suspension without giving her employee a chance to
evaluate her side of the controversy.
It is incumbent upon any dismissal or suspension that the employee be
accorded the right to due process by notification and by allowing the
employee to defend him or herself.
In this case, respondents have evidence that they have satisfied the
above discussed rights of complainant with respect to his substantial
and procedural due process. There were just or authorized causes
exist to terminate complainant, and even assuming for the sake of
argument without however admitting that no circumstance exists, the

notices rule and right to hearing was faithfully complied with. Thus,
complainants dismissal is legal.
CONCLUSION
An employer is free to regulate, according to his own discretion
and judgment all aspects of employment including suspension and
termination. Every institution has for its goals to preserve itself from
losses and pilferages and in the process it may adopt a design towards
that goal. Even as the law is solicitous of the welfare of employees, it
must also protect the right of an employer to exercise what are clearly
management prerogatives.
confidence,

an

employer

One of which is in cases of loss of

cannot

be

compelled

to

continue

in

employment an employee guilty of acts inimical to the interest of the

institution. An employer who has exerted earnest efforts to provide a
chance for an employee to defend himself in the midst of controversy
cannot be anymore be burdened after a reasonably long time to still
admit back a neglectful employee.
Under the foregoing circumstances, there is no denial that there
was a valid cause for dismissal and that there was due process
observed in the proceedings prior to dismissal.
Thus, on the issues to be resolved, it is respectfully maintained
that:
A. THE DISMISSAL WAS VALID ON THE GROUND OF LOSS OF
CONFIDENCE OR TRUST.

b. THE PLAINTIFF WAS NOT DEPRIVED OF HER RIGHT TO DUE

PROCESS.
PRAYER
WHEREFORE, the foregoing premises considered, it is
respectfully prayed to the HONORABLE ARBITER that judgment be
rendered in favor of the plaintiff, and that an order be issued,
dismissing the said labor complaint.
Other reliefs just and equitable in the premises are likewise
sought.
Respectfully submitted, July 26, 2014.

Atty. ALMAN-NAJAR NAMLA

Attorney for Respondent

Unit 319 San Rafael Condominium
San Rafael corner San Ignacio Streets
1550 Zamboanga City, Philippines
P.T.R. No. 7573356 * Zamboanga City * January 13, 2016
I.B.P No. 884803 * Zamboanga * January 16, 2016
MCLE No. III 14549 * Zamboanga City * April 26, 2016
Roll No. 47673
Copy furnished:

Atty. George Namla

Counsel for the Plaintiff
3rd. Floor New Era Building
No. 10 Magalang Street, Bgy. Pinyahan, Zamboanga City

VERIFICATION and CERTIFICATE OF NON FORUM SHOPPING

I, SR. MARY TORRES, of legal age and Filipino, after having been
duly sworn to in accordance with law, depose and state THAT:
I am the respondent in the above-entitled case; I have
caused the preparation of the foregoing position paper and I
have read the same and the contents of which are true and
correct of my own knowledge and/or on the basis of authentic
documents.
Furthermore, in compliance with the Rules of Court, I
hereby certify that I have not commenced any other action or
proceedings involving the same issues in the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other
tribunal or agency; and that to the best of my knowledge, no
such action or proceeding is pending in the Supreme Court, the
Court of Appeals, or any other tribunal or agency. If I learn that a
similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or any other tribunal or
agency, I shall notify the court, tribunal or agency within five (5)
days from notice.
IN WITNESS WHEREOF, I hereunto affix my signature this July 26,
2014
SR. MARY TORRES
In behalf of Holy Spirit Academy
Affiant

SUBSCRIBED AND SWORN to before me this July 26, 2014

Hon. Rhett Julius Plagata

LABOR ARBITER
Regional Arbitration Branch 09

10

Exhibit A

Exhibit B

11

Exhibit C
Holy Spirit Academy
# 6087 Tatalon Street, Pasonanca, Zamboanga City

12

PREVENTIV SUSPENSION WITHOUT PAY

July 20, 2014
Memo to: Clarisse Cervantes, Finance Office
From:

Sr. Mary Torres

Subject:

Preventive Suspension without Pay

This is to notify you that I am suspending you from work, without pay,
for thirty (30) days beginning July 23 through August 23 for failure to
meet the performance standards of your position as a Cashier in the
Finance Office at Holy Spirit Academy.
You are suspected of committing malversation of school funds. By this
disciplinary action I am giving you an opportunity to correct your
deficiency. Failure to do so will result in further disciplinary action up to
and including discharge.
You have the right to appeal this suspension through the grievance
procedures in HSA No. 04.04.41, "Staff Employee Mediation, Grievance,
and Complaint Policy during the hearing and investigation that will be
conducted on July 24, 2014. Contact Human Resources if you have
questions.
A copy of this letter will be placed in your official personnel record in
Human Resources.
Please acknowledge below your receipt and understanding of this
letter.
_____________________
Signature of Employee
_____________________
Date

Exhibit D

13

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