Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

NATIONAL CAPITAL REGION
Quezon City

REY FRANCIS A. BASA, NCR Case No. 08 - 10363 - 16

Complainant,

-versus-

ENFRAUSA / RAY CHIU,

Respondent,
x---------------------x

POSITION PAPER
COMPLAINANT by the undersigned counsel and unto this Honorable
Labor Arbitration Office, most respectfully submits this position paper and
avers the following to wit:

PREFATORY STATEMENT

The Complainant in this case is REY FRANCIS BASA, of legal age,

married, with post office address at Block 22 Lot 4, Twin Tower Extension
Brgy. 187., Pasay City where he could be served with summons and other
legal processes of this Honorable Office.

The Respondent is ENFRAUSA, a business establishment owned by

Ray Chua and managed by Mary Dizon, with business address at 14th Floor,
The Orient Square Bldg., F. Ortigas Jr., Ortigas Center, Pasig City where the
said establishment and representative could be served with summons and
other legal processes of this Honorable Office.

STATEMENT OF FACTS

The Complainant was hired by the Respondent as I.T Helpdesk on

December 10, 2015. Wherein the Complainant support endusers and
server machines, email setup, work stations, server maintenance and
backup. A copy of the Employment Contract issued by the Respondent to
the Complainant is hereto attached as Annex A as proof of the latters
employment.

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 The Complainant worked for six (6) days a week excluding Thursday
since it is his off prescribed the company. He worked for 8 hours per day.

On the night of June 25, 2016, Complainant was verbally terminated

without due process from his work by Mary Dizon, the Operations Manager
of the EnfraUsa.

The Complainant was considered as a Regular employee on the time

the termination happened since it has been six (6) months lapsed when he
was hired by the Respondents.

That as a result of the unjust termination of employment of the

Complainants by the Respondent, the former suffered mental anguish,
sleepless nights, wounded feelings, serious anxiety, moral shock, and
social humiliation, especially concerning the daily sustenance of his family.

In support of the foregoing allegations is the Affidavit of the herein

Complainant which is attached and made integral part of this Position
Paper as Annex _, as well as his verified Complaint dated August 25,
2016 which is on the records of this case.

ISSUES

1. WHETHER OR NOT THE COMPLAINANT WAS ILLEGALLY DISMISSED

AND WHETHER OR NOT THE COMPLAINANT WAS AFFORDED THE
PROCEDURAL DUE PROCESS.

2. WHETHER OR NOT THE RESPONDENTS WAS ALREADY A REGULAR

EMPLOYEE WHEN HE WAS TERMINATED BY THE RESPONDENTS.

3. WHETHER OR NOT, THE RESPONDENT IS LIABLE TO THE

COMPLAINANT FOR NOMINAL DAMAGES AND MORAL DAMAGES.

FIRST ISSUE: (Illegal Dismissal and no Procedural Due Process)

From the foregoing facts, it is clear that the dismissal of the

complainant was illegal thus he should be paid of his separation pay as

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provided by law. Also, no procedural process was accorded to him prior to
his termination from service.

Insofar as the procedural due process is concerned, Article 277 (b) of

the Labor Code specifically requires the employer to furnish the worker or
employee sought to be dismissed with two written notice, i.e., a notice
which apprises the employee of the particular acts or omission for which
his dismissal is sought, and a subsequent notice which informs the
employee of the employers decision to dismiss him (Kiamco vs. NLRC,
G.R. No. 129449, June 29, 1999).

In this instant case, clearly the complainant was not afforded of the
procedural due process accorded by law because he was simply verbally
fired from his employment.

In addition, (I)t must be borne in mind that the basic principle in

termination cases is that the burden of proof rests upon the employer to
show that the dismissal is for just and valid cause, and failure to do so
would necessarily mean that the dismissal was not justified and, therefore,
was illegal [Polymedic General Hospital v. NLRC, G.R. No. 64190, January
31, 1985, 134 SCRA 420; and also Article 277 of the Labor Code].

SECOND ISSUE: (PROBATIONARY EMPLOYEE STATUS)

Under Article 281 of the Labor Code, the employer must inform the
employee of the standards for which his employment may be considered
for regularization. Such probationary period, unless covered by an
apprenticeship agreement, shall not exceed six (6) months from the date
the employee started working. The employees services may be terminated
for just cause or for his failure to qualify as a regular employee based on
reasonable standards made known to him.

It is undisputedly that when the Complainant was terminated by the

Respondent, He is already a regular employee of the latter. Hence, the
Complainant is entitled to receive benefits given by the Complainant to its
Regular employee.

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THIRD ISSUE: (NOMINAL DAMAGES, EXEMPLARY DAMAGES AND MORAL
DAMAGES)

Cleary, the Respondent violated the statutory right of the herein

complainant i.e. his right to be furnished of the two written notice prior to
dismissal as specifically provided by Article 277 (b) of the Labor Code of
the Philippines. In a case like this, the proper award is nominal damages
under the Civil Code as it is aimed to vindicate the right to procedural due
process violated by the employer. In the case of Jenny Agabon and Virgilio
Agabon vs. NLRC (G.R. No. 158693, November 17, 2004), for lack of
statutory due process, the employer was ordered to indemnify the
employee for the violation of his statutory right which warrants the
indemnity in the form of nominal damages.

Likewise the herein Complainant is entitled to moral damages

because the dismissal of the complainant was attended by bad faith of
constitutive of an act oppressive to labor. In the case of Lim vs. National
Labor Relations Commission [GR No. 79907 March 16, 1989], the
Supreme Court uphold the award of moral as well as exemplary damages
in view of the bad faith attendant to the treatment of the employee.

In the instant case, there is no other plausible explanation for the

acts (or its conspicuous absence) of the Respondent of the manner
wherein the Complainant was deprived of his employment except bad
faith.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of

this Honorable Labor Arbiter, that decision be rendered, to wit:

1. Declaring the termination of the herein Complainant as

illegal and further, ordering Respondent to pay unto the
Complainant separation pay.

2. Furthermore, it is likewise prayed unto the Honorable

Labor Arbiter to order the Respondent to pay the herein
Complainant nominal damages in the amount of Php 30,000.00

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 for not affording to the complainant the procedural due process,
the amount of Php 50,000.00 as moral damages and the amount
of Php 30,000.00 as exemplary damages.

Other reliefs just and equitable under the premises are also prayed
for.

RESPECTFULLY SUBMITTED.

Manila City, October 23, 2016.

The PUBLIC ATTORNEYS OFFICE
(Counsel for the Complainant)
4th Flr., Godino Bldg.
Arroceros St. Ermita
Metro Manila

By:

Copy furnished: (by Registered Mail)

Registry Receipt No._________

Date Mailed:_______________

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