Beruflich Dokumente
Kultur Dokumente
ARNEL L. ENRILE,
Complainant,
REPLY
c. That he is ought to be paid SILP, 13th month pay and other money
claims;
1
In his Position Paper, complainant alleged that he was illegally retrenched;
2
the submission of financial statements duly audited by
independent external auditors."8 In the case of impending
losses, financial statements duly audited by independent
external auditors are not necessarily the best proof.
But it is not correct to say that in all cases of retrenchment, the
company concerned must already be losing or in the state of bankruptcy;
Retrenchment can also be had to prevent losses and still it is deemed
legal;
Under this condition of retrenchment to prevent losses, proof of
bankruptcy need not be submitted by the company;
To reiterate, there two kinds of losses which can justify retrenchment,
namely, incurred losses and impending losses;
Incurred losses refer to losses that have already occurred. Since they
have already occurred, they should be reflected in the financial statements;
On the other hand, impending losses refer to losses that have not yet
occurred. They are also termed as future or expected losses.
Since they have not yet occurred, they are not reflected in the
financial statements;
Thus, the argument of the complainant that respondent will not be
able to substantiate its retrenchment claim is misplaced;
It is only incurred losses which must be substantiated by financial
statements;
Obviously, impending, expected or future losses which employers
seek to prevent through retrenchment could not yet be reflected in the
financial statements;
In fact, if the retrenchment adequately serves its purpose, then the
impending losses would never be reflected in the financial statements;
` Noteworthy to mention that complainant was hired by the respondent
to become its Sales and Business Development Manager on January 6, 2014;
As such, he was charged to bring in clients that will bring forth
earnings for the company;
This is the obligation of the complainant on the day that he was hired;
But complainant run short on his commitment as he was not able to
garner any client pursuant to his function as a Sales Development Manager;
No client means no profit for the respondent giving it shivers on the
possibility of being bankrupt;
The logical conclusion to retrench the complainant was ultimately
decided by the respondents;
3
If complainant cannot deliver his obligation to bring in clients then it
is only logical to weed him out and replace him with another employee who
can do his job;
This is a matter of self-preservation on the part of the respondents;
Thus respondents was constrained to talk to the complainant for his
eventual retrenchment with a separation package of Php 214,766.57;
This package was unreasonably refused by the complainant prompting
the respondents to write him a Memorandum that in essence declare that he
was retrenched to prevent losses;
(Photocopy of the said Memorandum is attached herein as ANNEX “1” to
form an integral part hereof);
In the said Memo, complainant was assured of his separation pay and
a notice that he will not be required to work but still will be paid in lieu of
notice. To quote the same:
“… We confirm that your employment with the company
will terminate on October 6, 2014 – Monday due to
retrenchment to prevent loss. This letter serves as notice of
termination due to retrenchment.
You will not be required to work your notice period and
you will be paid in lieu of notice.
Final salary
Separation Pay
13th Month Pay
Income Tax Return…”
This completes the retrenchment of the complainant which was made
in full fealty with the law;
His claim therefore of being illegally retrenched should not be given
any consideration;
4
Respondents thus supplement the said argument by saying that said
backwages should be counted only from the time that complainant was
retrenched, which was on October 6, 2014, until February 13, 2015, or the
day that he was given an Unconditional Offer to Return to Work by the
respondents;
Noteworthy to mention that the respondents made a reservation in the
Memorandum that it issued the complainant which pertain to the possibility
of taking him back in;
The said Memo, states:
5
dismissal up to the time of his reinstatement (Capital Garment Corporation
v. Ople, 117 SCRA 473; New Manila Candy Workers' Union (NACONWA-
PAFLU) v. CIR, supra).
In the case, of the complainant, he was offered reinstatement by the
respondents which he refused;
Must his backwages then should be computed from the time he was
terminated up to the time he was offered reinstatement or up to the time his
complaint for illegal dismissal was finally decided?
This issue was somewhat settled in the case of Five J Taxi and Juan
S. Armamento vs. National Labor Relations Commissin (G.R. No. 100138,
August 5, 1992) where the Supreme Court sustained the ruling of the trial
arbiter who declared that the reason why the complainant is ought to be paid
backwages from the time of his dismissal up to the time that his case was
finally decided is because there was no bona fide offer on the part of the
employer to reinstate the complainant;
In the said case, the employer only announced that he is amenable to
accept back the employee but he did not actually tell the employee that he
can already return to his work;
There the Supreme Court ruled:
“.. The petitioners' position on the cut-off period
for the reckoning of private respondents' backwages had
thoroughly been passed upon and consistently been
rejected by the NLRC and the Labor Arbiter below.
In this regard, what the NLRC found in its assailed
resolution need not be further elaborated upon —
We have painstakingly gone over the entire records
of the case and, sad to say, We could not find any hard
and solid proof that respondents had, indeed, made an
unconditional offer of reinstatement to complainants,
except the bare manifestation it filed on December 13,
1989. In fact, there was no subsequent attempt made by
respondents to complainants of their alleged offer of
reinstatement. Conferences were scheduled wherein
respondents could have made it of record that
complainants have simply refused to go back to work.
But despite opportunities to do so, respondents have
done nothing to fully express a clear intent to reinstate
complainants as the records is bare of any evidence to
this effect. Therefore, its allegation that computation of
the award should stop when it filed a manifestation on
December 13, 1988 cannot prosper. Besides, it's too late
in the day to argue the issue as such has been long
disposed of in the resolutions dated October 31, 1989
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and March 7, 1990. (Resolution dated January 18, 1991,
pp. 80(b)-81, Rollo)
We find no supervening event nor any meritorious
reason to disturb the amount of backwages awarded to
the private respondents which have repeatedly been
computed by the Research and Information Unit of the
Labor Arbiter…”
It is clear from the said pronouncement that had the employer actually
offered reinstatement to the employee then the computation of his
backwages should have stop there;
Going back to the case of the complainant, assuming just for the sake
of argument that he was illegal retrenched by the respondents, his
backwages should be computed only from the time he was actually offered
reinstatement which he refused;
Said the Supreme Court in this regard” The age-old rule governing the
relation between labor and capital, or management and employee of a "fair
day's wage for a fair day's labor" remains as the basic factor in determining
employees' wages, and for that matter backwages. If there is no work
performed by the employee there can be no wage or pay unless, of course,
the laborer was able, willing and ready to work but was illegally locked out,
or suspended (SSS v. SSS Supervisors Union-CUGCO, 117 SCRA 746);
His refusal to be reinstated gives him no right to be given additional
backwages:
WHEREFORE, premises considered, respondents reiterate their
prayer as found in their Position Paper.
Quezon City March 3, 2015
ATTY.PEARLITO B. CAMPANILLA
Suite B. 2nd Floor Overland Park Bldg.,
No. 245 Banawe St. cor Quezon Ave., Quezon City
PTR 0560706 1-5-15 QC
IBP 888280 2-03-12 Pasig City
Roll No. 37522
MCLE Compliance No. IV-0018064 4-25-13 Pasig City.
cc.
ARNEL L. ENRILE
Republic of the Philippines)
7
Quezon City ) s.s.
VERIFICATION
Romulo A. Reyes