Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. XI
Davao City

MARIA LOURDED P. BARRIGA,

Complainant,

-versus- NLRC RAB -XI-11-00824-

16

CALLBOX, INC./ CONTACT DB. INC.

AND ROM AGUSTIN CEO, FOR: ILLEGAL DISMISSAL, NON-
MARIA REBECCA MATIAS- PAYMENT OF SEPARATION
ORBASE- PAY
GENERAL MANAGER

Respondent.

POSITION PAPER
For the Complainant

Complainant, MARIA LOURDES P. BARRIGA, through undersigned

counsel, in compliance with the Order for the filing of a position paper, most
respectfully avers that:

THE PARTIES
1. Complainant Maria Lourdes P. Barriga was an employee of Callbox,
Inc./ Contact DB, Inc. She was a Marketing Associate 3.

2. Respondent Callbox, Inc./ Contact DB, Inc. hereafter referred as

Respondent Callbox Inc., was the employer of the complainant. The
respondents nature of business is business process outsourcing, with
office address LANDCO Corporate Center, LANDCO Bldg., Bajada,
Davao City and its main office 2 nd and 3rd Floors, AVESCOR Bldg.,
MLH Del Pillar St., Molo, Iloilo City.

3. Respondent Rom Agustin hereto referred as Respondent Agustin, is

the Chief Executive Officer of Callbox, Inc./ Contact DB, Inc. and
Maria Rebecca Matias-Orbase hereto referred as Respondent Matias-
Orbase is the General Manager of Callbox, Inc./ Contact DB, Inc. in
Davao City.

STATEMENT OF GENERAL FACTS

4. The following summary of facts is offered to guide the Honourable

Labor Arbiter in the resolution of the present case.

5. Complainant Maria Lourdes P. Barriga was an employee with

Callbox, Inc./ Contact DB, Inc. since September 2008. She started as
an Inside Sales Representative and eventually became a Marketing
Associate 3.

6. The complainants job was to do appointment setting and

telemarketing. Every month she needs to reach at least 30 LEADS.

7. It is the respondent companys policy that in case their agent would

not be able to reach at least 30 LEADS as a quota, they would send
Class C memorandum informing the agent his or her failure to
comply the required quota. This memorandum is usually sent during
 the first week of the succeeding month. However, this policy has
never been followed by the Team Leaders because they have
understood the difficulty of finding a new set of clientele.

8. Then in September 20, 2016, complainant received a document

ANNEX A which was a Notice to Explain as well as it contained the
leads she was able to reach from January 2016 to August 2016 she
was asked to submit a written explanation why she had failed to
reach the quota. The complainant asked her Team Leader Wella
Marie P. Wong if she can just submit such explanation via electronic
mail, then the latter said she can since it is more convenient. In good
faith, the complainant filed her explanation via electronic mail.

9. The following day, September 21, 2016, complainant received an

electronic mail ANNEX B which is a Class C memorandum for non-
compliance of requirements and she was requested again to file her
response for Notice to Explain. Complainant got confused why she
received such memorandum. On the same day, she was invited again
by her superiors in a meeting to discuss her non- compliance with the
Notice to Explain. However, complainant did not attend the said
meeting because she felt bad about the treatment her company has
given her. Though, she was not able to attend the said meeting,
complainant and her Team Leader talked via SPARK Messenger-
ANNEX C. Complainant expressed her thoughts of being transferred
to another department since it is their company policy that if an agent
would fail to reach his or her quota and he or she has no bad records
then he or she will only be transferred to another department. But her
Team Leader told her that no Team Leader would accept her.

10. On the same day, complainant received a Class D Memorandum

ANNEX D which is for Insubordination or willful disobedience in
carrying out lawful and reasonable request or instructions of
immediate superior. According to this memorandum, the complainant
failed to attend an important meeting with the marketing coordinator.
11. On September 22, 2016, complainant received a Notice of
Compliance-ANNEX E stating that her supervisors decided to give the
complainant until September 30, 2016 to produce 31 valid leads to
further evaluate performance and if she would be able to hit the
number, she will be extended and will be required to reach additional
valid leads for October 2016s first half and failure to comply would
result to valid termination of employment. This is the first time that the
complainant received such demand in her eight (8) years working in
the said company.

12. After receiving such notice, the complainant lost her eagerness in
producing the newly required leads by her supervisors due to the
fact that during that period, it is impossible to reach even the regular
minimum quota of leads.

13. On October 17, 2016, the complainant reported to work. But she was
surprised to know that she was already blocked from the ACCESS-
this is the computer system given by the respondent corporation to be
used by their employees. Complainant sought the help of their in-
house Information Technology technician but the latter was not able to
do anything because he said the blocking of the complainants
account was made in the main system which is located in Iloilo City.

14. Then to save her face from such embarrassing situation,

complainant waited and later talked to her HR Coordinator-Davao,
Miss Kathleen C. Liberan. Complainant asked the HR Coordinator to
give her the necessary termination paper she needs so she can have
the necessary clearance need to be freed from any obligations with
her employer. But the HR Coordinator said to her that as an order
from Iloilo, she was forbidden to give the complainant any termination
paper. The HR Coordinator instead told the complainant that she
could be retained in her current position or she can be transferred to
another department however, the complainant refused to accept any
 of the offer but she expressed her unwillingness to work in the said
company.

15. To pacify the complainant, the HR Coordinator told the former that
she could report at work, do nothing but still she could receive her
salary. This set up was being adopted from October 17-November 25,
2016.

16. Feeling aggrieved, the complainant filed a case before the

Department of Labor for Constructive Dismissal with Money Claims on
October 20, 2016. The first hearing was conducted on October 28,
2016.

17. On November 9, 2016, the respondent corporation, sent the

complainant a Transfer Notification-ANNEX F. Then on November 14,
201, the complainant received Notice to Explain- ANNEX G. On
November 22, 2016, the complainant received Notice of
Administrative Hearing- ANNEX H and finally on November 25, 2016,
the respondent corporation sent their Notice of Decision- ANNEX I to
the complainant informing her that she has been terminated from
employment.

18. During the hearing before the Labor Arbiter on December 16, 2016,
the respondent corporation and complainant agreed to settle the
money claims aspect as provided for by the document- ANNEX J.
However, the respondent refused to give the complainant her
separation pay as well as her basic pay from November 16-25, 2016.

THE ISSUES
1. The following issues are advanced for the consideration of the
Honorable Labor Arbiter:

a. Whether or not complainant was constructively dismissed.

b. Whether or not the termination of complainant was done in
accordance with Art. 277 (b) of the Labor Code and Book
Six, Rule I, Sec. 2 of the Rules to Implement the Labor Code
on the Procedure to Terminate Employee based on Just
Cause; and
c. Whether or not complainant is entitled to reinstatement and
her money claims.

ARGUMENTS AND DISCUSSIONS

THE COMPLAINANT WAS

CONSTRUCTIVELY DISMISSED

1. Constructive dismissal exists where there is cessation of work

because continued employment is rendered impossible,
unreasonable or unlikely, as an offer involving a demotion in
rank and a diminution in pay. It is a dismissal in disguise or an
act amounting to dismissal but made to appear as if it were
not. Constructive dismissal may likewise exist if an act of clear
discrimination, insensibility, or disdain by an employer
becomes so unbearable on the part of the employee that it
could foreclose any choice by him except to forego his
 continued employment. Constructive dismissal exists when the
employee involuntarily resigns due to the harsh, hostile, and
unfavorable conditions set by the employer. 1

2. The test of constructive dismissal is whether a reasonable

person in the employees position would have felt compelled
to give up his position under the circumstances. It is an act
amounting to dismissal but is made to appear as if it were not.
In fact, the employee who is constructively dismissed might
have been allowed to keep coming to work. Constructive
dismissal is therefore a dismissal in disguise. The law
recognizes and resolves this situation in favor of employees in
order to protect their rights and interests from the coercive
acts of the employer.2

3. The Depot Manager told the complainant that the company

does not like them anymore, and that the company also
wanted them to voluntarily resign from their job. The Depot
Manager told the complainant that the latter should not intervene with
her work anymore.

4. It appears that respondent ceased to give complainant work

assignment, and they replaced another in her position without prior
notice to her. She continued to work, but she was ignored as if she was
not there. These discriminatory acts were calculated to make the
complainant feel that she was no longer welcome and needed in
respondent company. Under this situation, the complainant was
forced to stop reporting for work. Thus, the complainant's act
1
Vicente Ang v. Ceferino. San Joaquin, Jr., and Diosdado Fernandez, G.R. No.
185549, August 7, 2013.

2
CRC Agricultural Trading and Rolando B. Catindig v. National Labor Relations
Commission and Roberto Obias, G.R. No. 177664, December 23, 2009.
 of stopping to report for work was in reality not her choice but
a situation the respondent created.

THERE WAS NO COMPLIANCE

WITH THE PROCEDURAL RULES
IN THE TERMINATION OF
COMPLAINANT

5. The validity of an employee's dismissal from service hinges on

the satisfaction of the two substantive requirements for a
lawful termination. These are, first, whether the employee was
accorded due process the basic components of which are the
opportunity to be heard and to defend himself. This is the
procedural aspect. And second, whether the dismissal is for
any of the causes provided for in the Labor Code of the
Philippines. This constitutes the substantive aspect. 3

6. The Labor Code and its Implementing Rules require that the
employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a statement
of the causes of termination and shall afford the latter ample opportunity
to be heard and to defend himself with the assistance of his
representatives if he so desires.4

3
New Ever Marketing, Inc. v. CA, G.R. No. 140555, July 14, 2005

4
Robinsons Galleria/Robinsons Supermarket Corporation v. Sanchez, G.R. No.
177937, January 19, 2011
7. For termination of employment defined in Article 282 (Just Causes) of
the Labor Code:

1. A written notice served on the employee stating the ground or

grounds for termination, and giving said employee reasonable
opportunity within which to explain his side.
2. A hearing or conference during which the employee concerned, with
the assistance of counsel if he so desires, is given an opportunity to
respond to the charge, present evidence, or rebut evidence
presented against him.
3. A written notice of termination served on the employee indicating
that upon consideration of all circumstances, grounds have been
establish to justify his termination.

8. In this case, there was no iota of compliance of these procedures.

No written notice was ever given prior to complainant's illegal
dismissal. She was not given the opportunity to be heard of the
allegations against her which supposedly merit her dismissal.

9. The belated sending of the Notice to Explain (NTE) regarding the

variance which occurred in January 2014 and her failure to report on
work without notification to immediate superior, merely constitutes an
afterthought. The NTE, which was received by complainant on May 21,
2014, was sent only on May 20, 2014, two (2) months after the
complainant and respondent JENTEC entered into a Single-Entry
Approach (SENA) under the Department of Labor and Employment,
where the parties failed to reach an agreement.

10. The amount of disregard of our labor laws is totally unacceptable. It is

obvious that complainant was denied of her statutory due process
provided under the Labor Code.
11. The essence of due process is simply an opportunity to be heard, or
as applied to administrative proceedings, a fair and reasonable
opportunity to explain one's side. It is also an opportunity to seek
reconsideration of the action or ruling complained of. It is not the denial
of the right to be heard but denial of the opportunity to be heard that
constitutes violation of due process of law.5

12. The requirement of notice, it has been stressed, is not a mere

technicality but a requirement of due process to which every employee
is entitled.6

COMPLAINANT IS ENTITLED
TO MORAL AND EXEMPLARY
DAMAGES, SEPARATION PAY,
AND OTHER BENEFITS

13. An employee who has been illegally dismissed after the effectivity of
R.A. 6715 shall be entitled to reinstatement, full backwages and
other benefits for the entire period that he was out of work until
actual reinstatement. However, in lieu of reinstatement, complainant
may instead be awarded separation pay. Separation pay is the amount
that an employee receives at that time of his severance from the
service and is designed to provide the employee with the wherewithal
during the period that he is looking for another employment. The grant
of separation pay does not preclude an award for backwages for
5
Eastern Overseas Employment Center, Inc. v. Cecilia Bea, G.R. No. 143023,
November 29, 2005

6
Erector Advertising Sign Group, Inc. and Arch. Jimmy C. Amoroto v. NLRC, G.R. No.
167218, July 2, 2010.
 the latter represents the amount of earnings lost by reason of the
unjustified dismissal. Additionally, a dismissed employee is entitled to
13th month pay.7

14. In this case, complainant was not given her salary and E-COLA for
the duration of her work from January 16-31, 2014.

15. The general rule is that the burden rests on the employer to prove
payment, rather than on the employee to prove non-payment. 8 Hence
the allegation of non-payment itself merits the satisfaction of the
complainant's claim when undisputed by respondent company, and in
case of dispute, respondent must prove clearly and convincingly the
payment of the same.

16. Moral damages are recoverable where the employee's dismissal was
attended by bad faith, or constituted an act oppressive to labor, or was
done in a manner contrary to morals, good customs, or public policy.9

17. In this case, the manner of dismissal was in bad faith. Considering
the fact that respondent company had all the legal means to terminate
their employee as prescribed by law, they did not consult and see to it
that the rights of employees are protected.

18. Exemplary damages may be awarded if the dismissal was effected in

a wanton, oppressive, or malevolent manner. 10
7
Danny T. Rasonable v. NLRC, G.R. No. 117195, February 20, 1996.

8
E.G & I. Construction Corporation and Edsel Galeos v. Ananias P. Sato, et al., G.R.
No. 182070, February 16, 2011.

9
E.G & I. Construction Corporation and Edsel Galeos v. Ananias P. Sato, et al., G.R.
No. 182070, February 16, 2011.

10
Geronimo Q. Quadra v. CA and PCSO, G.R. No. 147593, July 31, 2006.
19. In this case, it has been averred that the acts of herein respondent
were oppressive when it did not afford complainant of any opportunity
to be heard of the causes of termination imputed to her.

PRAYER

Wherefore, premises considered, it is respectfully prayed that

judgment be rendered in favor of complainant by:

1. Declaring that the complainant was illegally constructively

dismissed;
2. Ordering respondent JENTEC to reinstate complainant with full
backwages, and if reinstatement is not anymore possible, pay
complainant separation pay with the corresponding backwages,
and payment of 13th month pay; and
3. Ordering respondent JENTEC to pay complainant moral and
exemplary damages.

Other reliefs as are just and equitable under the circumstances are
also prayed for.
Respectfully submitted this 30th January 2017, Davao City, Philippines.

ATENEO LEGAL AID OFFICE

Counsel for the Complainant
2/F Dotterweich Hall, ADDU
Jacinto St., Davao City
Tel. No. (082) 227-7460
Fax No. (082) 225-0770
 By:

ATTY. MANUEL P. QUIBOD

Roll No. 33499
PTR NO. 6826101 B;1-04-16, DAVAO CITY
IBP LIFETIME MEMBER ROLL NO.00996
MCLE EXEMPTION NO. V-001179;02-22-16, M.M.
For the 5th Compliance
(Valid from 02-11-16 until 04-04-19

Copy furnished:

Callbox, Inc./ Contact DB Inc.

DAVAO BRANCH- LANDCO Corporate Center, LANDCO Bldg., Bajada,

Davao City

MAIN OFFICE-2nd and 3rd Floors, AVESCOR Bldg., MLH Del Pillar St.,
Molo, Iloilo City.