Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No.1
San Fernando City, La Union

OFFICE OF LABOR ARBITER

EMIL ROSARIO y MANGLICMOT,

Complainant,

NLRC Case No. RAB-1- ________

- versus - For: ILLEGAL DISMISSAL

NAPINTAS LOGISTICS AND DISTRIBUTION,

INC., and/or MAXIMILIAN A. GOCHECO,
Respondent.
x---------------------------------------------------------------x

POSITION PAPER
FOR THE COMPLAINANT

WITH

URGENT EX PARTE MOTION

FOR PRODUCTION, INSPECTION AND EXAMINATION OF THE “201 FILE” (PERSONNEL FILE) OF
THE COMPLAINANT IN THE POSSESSION OF THE RESPONDENT and THE COMPANY
MANAGEMENT-EMPLOYEE HANDBOOK

COMES NOW the complainant, through the undersigned counsel, and to the Honorable
Tribunal most respectfully alleges:

Position Paper for the Complainant,Emil M. Rosario vs. Napintas

Page 1 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 Prefatory Statement

“In order to validly dismiss an employee, he must be accorded both substantive

and procedural due process by the employer. Procedural due process requires that the
employee be given a notice of the charge against him, an ample opportunity to be
heard, and a notice of termination. Even if the aforesaid procedure is conducted after
the filing of the illegal dismissal case, the legality of the dismissal, as to its procedural
aspect, will be upheld provided that the employer is able to show that compliance with
these requirements was not a mere afterthought.” (New Puerto Commercial, et. al. Vs.
Lopez, et. al., GR No. 1699999, July 26, 2010).

“Article 282 of the Labor Code provides that, An employer may terminate an
employment for any of the following causes: (a) Serious misconduct or willful
disobedience by the employee of the lawful orders of his employer or representative in
connection with his work; (b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer
or duly authorized representative; and (d) Commission of a crime or offense by the
employee against the person of his employer or any immediate member of his family or
his duly authorized representatives.”

The dismissal of the complainant in this case was based on a malicious, fabricated and
baseless charge of a crime for Qualified Theft for which he did not commit and which the
court subsequently acquitted him for the same, thus he did not deserve the supreme
sanction of dismissal, more so without due process. Neither is he guilty of serious
misconduct, gross and habitual neglect, fraud or willful breach of trust, or commission of a
crime against the employer or his family or representatives.

I. STATEMENT OF FACTS

1. The complainant is EMIL ROSARIO y MANGLICMOT, 24 years old, Filipino,

single, resident of and with postal address at 260 A-B Diversion Road, Purok 5, Brgy.
Biday, San Fernando City, La Union;

2. The respondent/s in this case are the following:

(a). NAPINTAS LOGISTICS AND DISTRIBUTION, INC. (corporate

employer); and/or

(b). MAXIMILIAN A. GOCHECO (Managing Director);

Position Paper for the Complainant,Emil M. Rosario vs. Napintas

Page 2 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 and with office address at Brgy. Parian, San Fernando City, La Union.

3. Complainant’s last position in the company was Delivery Driver, but was originally
hired as Delivery Helper;

(A copy of herein complainant’s company ID N10040 is herein attached and marked

as Annex “A”);

4. He was hired by the company sometime in the last week of January 2014 as Delivery
Helper and sometime in the 2nd week of August 2016, he was designated Delivery
Driver of the company;

5. He started with a Php 285.00 rate per day and with a 24 days work-month. He was
paid 13th month pay, night differential, overtime and his salaries were paid bimonthly
(for 2 weeks, 1-15 and for 2 weeks, 16-30) and remitted through BPI bank every 5th
and 20th day of every month, respectively;

6. His latest daily wage rate was Php 320.00 per day (as of August 18, 2017);

7. He also enjoys 15 days per annum paid vacation leaves;

8. The complainant was a regular employee of the respondent company when he was
effectively terminated on August 18, 2017 when the company through its Warehouse
Supervisor, Dominador S. Arenas and Security Guard on duty, Johny T. Buentido had
him arrested by the police authorities on Qualified Theft charge (re: PP v. Alexander
C. Putac & Emil M. Rosario, Criminal Case No. 12345 for Qualified Theft, RTC
Branch 29, San Fernando City, La Union) for which he was subsequently acquitted by
the court; the dispositive portion of the same is herein reproduced to wit:

“xxx

WHEREFORE, premises duly considered, the accused Alexander Putac y Co

and Emil Rosario y Manglicmot are hereby acquitted of the crime charged on the
ground of reasonable doubt.

SO ORDERED.

xxx.”

Position Paper for the Complainant,Emil M. Rosario vs. Napintas

Page 3 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 (A copy of the Complaint against herein complainant by Napintas Logistics and
Distribution, Inc., and the Court’s decision acquitting the complainant is herein
attached and marked as Annexes “B” & “B-1” and “C” & series “C-1” to “”C-8”,
respectively and hereby made an integral part hereof).

9. At the time herein complainant was effectively terminated as a consequence of the

Qualified Theft charge, he has served the company for 3 years and 6 & 1/2 months;
moreover, complainant never received any communication from the company that he
was terminated as he did not receive his salaries for the days he has worked prior to his
arrest and incarceration and in fact as a result of the arrest, he was put behind bars
for 7 days ( August 18 - 24, 2017) until he was able to post bail for his temporary
liberty;

And even after herein complainant was acquitted by the court, he never received any
communication from the company regarding his status as employee of the company,
thus herein complainant believes he was illegally dismissed as a result of the malicious
charge of Qualified Theft lodged against him;

10. The illegal dismissal/termination of herein complainant based on the qualified theft
charge was without due process; herein complainant was never afforded the two (2)
notices required by law, nor was given a chance to explain and prove his innocence of
the charge in an internal, impartial administrative proceeding;

11. Prior to the time he was arrested, he was driving back the delivery van of the company
coming from a delivery trip Baguio City Customers and was in the company of one,
Marcos Gurtiza and one, Victorio Magno. Upon his arrival at the company’s
warehouse premises at around 7:00 o’clock in the evening to unload undelivered
merchandise, the warehouse supervisor, Dominador Arenas was already waiting for
him at the parking lot at the back of the warehouse, and he was immediately arrested
(to use the words of the company, “by virtue of a citizen’s arrest”) by the warehouse
supervisor together with the Security Officer, Johny Buentido, who was on duty that
fateful night of August 18, 2017 and was subsequently turned over to the police
authorities (together with his alleged accomplice, Alexander C. Putac) of San Fernando
City, La Union they called upon to arrest him without the benefit of any internal
investigation nor having been formally notified of his violation or crime committed, he
was just simply arrested;

12. Complainant was arraigned pursuant to a resolution/information finding probable cause

by the Prosecutor’s Office of San Fernando City, La Union and trial ensued that lasted
from November 9, 2017 until the final promulgation of decision by the Court dated
June 6, 2018 acquitting him of the crime for Qualified Theft;

13. On July 11, 2018 the complainant sought the legal assistance of the Single Entry
Approach (SEnA) of this Honorable Commission. It issued a notice of conference
dated July 11, 2018 to the respondents. It set the mediation on July 26, 2018 and

Position Paper for the Complainant,Emil M. Rosario vs. Napintas

Page 4 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 August 1, 2018 at 10:00 AM. No compromise was reached during those mediation
conferences. The respondents were then represented by a representative of Atty.
Emmanuel S. Ugay, the company’s legal counsel;

14. The complaint was thus referred filed with this Honorable Commission through
the office of the Honorable Labor Arbiter, NLRC RAB-1, San Fernando City,
La Union.

(A copy of the complaint is herein attached and marked as Annex “D” – Complaint
dated August 1, 2018).

15. The conference/meeting between the parties were set by the Honorable Labor
Arbiter on August 16, 2018 attended by herein complainant in the company of his
counsel, Atty. Jaime C. Gonzales, Jr., and respondent was represented by Atty. Joe
Magpili, a representative from the company’s legal counsel, Atty. Emmanuel S. Ugay;

16. No compromise was reached at the office of the labor arbiter. Thus the Arbiter
ordered the parties to simultaneously file their respective position papers on August
29, 2016, at 10:00 o’clock in the morning before the office of the labor arbiter;

17. The illegal dismissal of herein complainant caused him and his family to suffer
and continue to suffer financial difficulties as he is helping to support his parents
with their daily household financial requirements and in the schooling of his
younger sibling;

Their family life and psychological well-being as a family have been terribly
traumatized, tortured, disturbed, inconvenienced, and shamed to this very day;
and

The parents, the siblings of herein complainant, as well as himself continue to be

the subject of ridicule among neighbors and even caused him to be alienated from
his friends because of being imprisoned and dismissed from his job allegedly for
stealing something from the company;

18. The illegal acts of the respondents caused the complainant extreme psychological
trauma and anxieties, sleepless nights, besmirched reputation and social
humiliation. He deserves an award of MORAL DAMAGES of P500,000.00,
pursuant to the Civil Code. He likewise deserves an award of EXEMPLARY
DAMAGES of P500,000.00 to serve as a lesson to society, pursuant to the same
Code. Further, he deserves an award of attorney’s fees equivalent to Ten Percent
of the damages awarded, pursuant to the Labor Code.

19. BACKWAGES, SEPARATION PAY AND OTHE REMPLOYEE BENEFITS

Position Paper for the Complainant,Emil M. Rosario vs. Napintas
Page 5 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 The receivable salaries, separation pay and other employee benefits of the
complainant as of August 18, 2017 (date of illegal termination/dismissal) are as
follows:

a. Salaries from the time of illegal dismissal up the final resolution of this
case;

b. Separation pay in lieu of reinstatement;

c. Paid vacation leaves of 15 days per annum starting 2017 until final
resolution of this case;

d. Holiday pay;

e. 13th month pay starting year 2017 until final resolution of this case; and

f. Refundable income tax, if there are any.

II. ISSUE

20. The sole issue is whether or not the complainant is entitled to the reliefs prayed
for in his complaint on the ground of illegal dismissal, that is, payment of
backwages, separation pay, holiday pay, other money claims, moral and exemplary
damages, and attorney’s fees.

III. DISCUSSION

21. ILLEGAL DISMISSAL

On August 18, 2017, herein complainant was ILLEGALLY DISMISSED from

employment by the respondent as a result of a malicious, unfounded and baseless
Position Paper for the Complainant,Emil M. Rosario vs. Napintas
Page 6 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 charge for a crime of Qualified Theft, citing that as a result thereof, respondent lost
the trust and confidence reposed on him by the company;

He was then on duty that day from (official regular time) 8:00 AM to 5:00 PM and was
coming back from a delivery trip from Baguio City; arrived at the company’s
warehouse at around 7:00 o’clock in the evening; and upon arrival was met by the
warehouse supervisor, Dominador Arenas, who immediately effected his arrest (by
virtue of a citizen’s arrest) together with the company security officer, Johny Buentido,
who was on duty that night, on the basis of an alleged violation/crime committed by
him for Qualified Theft (see Annex “B” herein attached);

He was held/sequestered at the parking lot at the back of the warehouse until the police
authorities arrived and finally brought him to the police station in San Fernando City,
La Union for investigation and finally was booked and placed behind bars that same
night;

He was imprisoned for seven (7) days, from August 18 - 24, 2017 until he posted bail
for his temporary liberty;

From the time of his arrest until he was finally acquitted of the charge and until to
date, he never received his salary and was never issued any notice or communication
on the matter; and

Even prior to his arrest and incarceration, he was never issued any formal notice of
violation, no administrative hearings (due process and opportunity to be heard) were
held to discuss any problem, or resolve it amicably, and hear his side. His right to due
process of law as mandated by the 1987 Constitution and more specifically by the
Labor Code was violated;

22. Article 277 of the Labor Code provides for the DUE PROCESS OF LAW:

“x x x.

(b) Subject to the constitutional right of workers to security of tenure and their
right to be protected against dismissal except for a just and authorized cause
and without prejudice to the requirement of notice under Article 283 of this
Code, the employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a statement of the
causes for termination and shall afford the latter ample opportunity to be
heard and to defend himself with the assistance of his representative if
he so desires in accordance with company rules and regulations promulgated
pursuant to guidelines set by the Department of Labor and Employment.

Any decision taken by the employer shall be without prejudice to the right of
the worker to contest the validity or legality of his dismissal by filing a
complaint with the regional branch of the National Labor Relations
Commission. The burden of proving that the termination was for a valid
or authorized cause shall rest on the employer.
Position Paper for the Complainant,Emil M. Rosario vs. Napintas
Page 7 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 The Secretary of the Department of Labor and Employment may suspend the
effects of the termination pending resolution of the dispute in the event of a
prima facie finding by the appropriate official of the Department of Labor
and Employment before whom such dispute is pending that the termination
may cause a serious labor dispute or is in implementation of a mass lay-off.
(As amended by Section 33, Republic Act No. 6715, March 21, 1989).

x x x.”

23. Article 279 of the Code provides for the SECURITY OF TENURE of a worker:

“x x x.

ART. 279. Security of tenure. - In cases of regular employment, the

employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title.

An employee who is unjustly dismissed from work shall be entitled to

reinstatement without loss of seniority rights and other privileges and
his full backwages, inclusive of allowances, and to his other benefits or
their monetary equivalent computed from the time his compensation
was withheld from him up to the time of his actual reinstatement. (As
amended by Section 34, Republic Act No. 6715, March 21, 1989).

x x x.”

24. Article 282 of the Code speaks of the just GROUNDS to dismiss an employee.

“x x x.

ART. 282. Termination by employer. - An employer may terminate an

employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the employee of the

lawful orders of his employer or representative in connection with
his work;

(b) Gross and habitual neglect by the employee of his duties;

Position Paper for the Complainant,Emil M. Rosario vs. Napintas

Page 8 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 (c) Fraud or willful breach by the employee of the trust reposed in
him by his employer or duly authorized representative;

(d) Commission of a crime or offense by the employee against the

person of his employer or any immediate member of his family or his
duly authorized representatives; and

x x x.”

25. The complainant is NOT guilty of any of the foregoing grounds provided for by
law on just grounds to dismiss an employee;

He is NOT GUILY of SERIOUS MISCONDUCT, GROSS AND HABITUAL

NEGLECT, FRAUD OR WILLFUL BREACH OF TRUST, OR COMMISSION
OF A CRIME AGAINST THE EMPLOYER OR HIS FAMILY OR
REPRESENTATIVES.

He did not deserve the supreme sanction of DISMISSAL (more so WITHOUT

DUE PROCESS OF LAW).

26. In the case of CAPIN-CADIZ VS. BRENT HOSPITAL AND COLLEGE, GR

187417, February 24, 2016, it was held that a worker who was illegally dismissed
is entitled to “entitled to reinstatement without loss of seniority rights, and with
payment of backwages computed from the time compensation was withheld up
to the date of actual reinstatement.”

“x x x.
Given the foregoing, Cadiz, therefore, is entitled to reinstatement
without loss of seniority rights, and payment of backwages computed
from the time compensation was withheld up to the date of actual
reinstatement.

Where reinstatement is no longer viable as an option (AS IN THE

CASE AT BAR), separation pay should be awarded as an alternative
and as a form of financial assistance. 55
x x x.”

Generally, the computation of backwages is reckoned from the date

of illegal dismissal until actual reinstatement. 59

In case separation pay is ordered in lieu of reinstatement or

reinstatement is waived by the employee (AS IN THE CASE AT
BAR), backwages is computed from the time of dismissal until the
finality of the decision ordering separation pay. 60

Position Paper for the Complainant,Emil M. Rosario vs. Napintas

Page 9 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 Jurisprudence further clarified that the period for computing the
backwages during the period of appeal should end on the date that a
higher court reversed the labor arbitration ruling of illegal dismissal.
61
x x x.”

27. In the case of NEW PUERTO COMMERCIAL, ET. AL. VS. LOPEZ, ET. AL.,
GR NO. 1699999, JULY 26, 2010, discussed DUE PROCESS OF LAW in labor
cases.

“x x x.

In order to validly dismiss an employee, he must be accorded both

substantive and procedural due process by the employer. Procedural due
process requires that the employee be given a notice of the charge against
him, an ample opportunity to be heard, and a notice of termination. Even if
the aforesaid procedure is conducted after the filing of the illegal dismissal
case, the legality of the dismissal, as to its procedural aspect, will be upheld
provided that the employer is able to show that compliance with these
requirements was not a mere afterthought.

x x x.”

In termination proceedings of employees, procedural due process consists of the

twin requirements of notice and hearing. The employer must furnish the
employee with two written notices before the termination of employment can be
effected: (1) the first apprises the employee of the particular acts or
omissions for which his dismissal is sought; and (2) the second informs the
employee of the employer’s decision to dismiss him. The requirement of a
hearing is complied with as long as there was an opportunity to be heard, and not
necessarily that an actual hearing was conducted.[14] As explained in Perez v.
Philippine Telegraph and Telephone Company:[15]

An employee’s right to be heard in termination cases under Article 277 (b) as

implemented by Section 2 (d), Rule I of the Implementing Rules of Book VI of
the Labor Code should be interpreted in broad strokes. It is satisfied not only by
a formal face to face confrontation but by any meaningful opportunity to
controvert the charges against him and to submit evidence in support
thereof.

A hearing means that a party should be given a chance to adduce his

evidence to support his side of the case and that the evidence should be
taken into account in the adjudication of the controversy.

x x x.”

Position Paper for the Complainant,Emil M. Rosario vs. Napintas

Page 10 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 28. The complainant herein was NEVER AFFORDED THE DUE PROCESS OF LAW
as enshrined in our 1987 Constitution and specifically by the forgoing provisions of
the Labor Code; thus shall be entitled to all the reliefs as may be applicable, just and
equitable under the premises.

IV. URGENT EX PARTE MOTION FOR PRODUCTION,

INSPECTION AND EXAMINATION OF (A).THE “201 FILE”
(PERSONNELFILE) OF THE COMPLAINANT IN THE POSSESSION OF
THE RESPONDENTS AND (B). THE COMPANY
MANAGEMENT-EMPLOYEE HANDBOOK; AND TO PROVIDE
COMPLAINANT COPY OF THE SAME

29. In the interest of fair play, the complainant hereby moves for the production,
inspection and examination of his 201 File (Personnel File) and the Company
Management-Employee Handbook, and to provide copy of the same to herein
complainant, which are with the respondent company, so that he can improve his
defenses and arguments based on the contents thereof, if any. He intends to discuss
the same in his REPLY POSITION PAPER to be filed in future hearings and/or
pleadings.

V. PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this Honorable

Tribunal to render judgment declaring that the complainant has been ILLEGALLY
DISMISSED by the respondent/s.

FURTHER, it is respectfully prayed that the respondent/s be ordered to pay or

issue to the complainant, as the case may be:

(a) BACKWAGES, SEPARATION PAY, HOLIDAY PAY and other receivables

from the date of his illegal dismissal on August 18, 2018 up to the time of the
finality of the decision ordering separation pay, as discussed in Paragraph 19,
supra;
(b) MORAL DAMAGES of P500,000.00;
(c) EXEMPLARY DAMAGES of P500,000.00;
(d ATTORNEY’S FEES of Ten Percent of Damages AWARDED;
(d) His CERTIFICATE OF EMPLOYMENT; and

FINALLY, granting the complainant such other reliefs as may be deemed just and
equitable in the premises.
Position Paper for the Complainant,Emil M. Rosario vs. Napintas
Page 11 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 San Fernando City, La Union, August 29, 2018.

REYNALDO M. MOSUELA
JAIME C. GONZALES, JR.
Counsel for the Plaintiffs
NORTESURLU Bldg., Purok 3, Sevilla
San Fernando City, La Union

By:

JAIME C. GONZALES, JR.

IBP Roll No. 68552; O.R. NO. 2548591, 01/03/2018
PTR No. 1068453, December 18, 2017 (SFLU)
TIN No. 102052434; MCLE Compliance(New Lawyer)

VERIFICATION AND CERTIFICATION

I, EMIL M. ROSARIO, being duly sworn in accordance with law, depose and
state that:

I am the complainant in the above-entitled case; I have caused the filing and
preparation of this position paper; and I have read the contents thereof and declare
the same to be true tot he best of my knowledge.

I certify that I have not heretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency and, to the
best of my knowledge, no such other action or claim is pending therein; and if I
should thereafter learn that the same or similar action or claim has been filed or is
pending, I shall report that fact within five (5) days therefrom to the court wherein
the aforesaid complaint or initiatory pleading has been filed.

San Fernando City, La Union, August 29, 2018.

EMIL M. ROSARIO
Affiant

Position Paper for the Complainant,Emil M. Rosario vs. Napintas

Page 12 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
 SUBSCRIBED AND SWORN to before me in ___________________________ on
____________________, 2018, affiant showing his competent proof of identity as
follows:_________________.

___________________________
Administering Officer

Position Paper for the Complainant,Emil M. Rosario vs. Napintas

Page 13 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal
Copy Furnished: (To be personally given during the
hearing on August 29, 2018 at 10:000 AM)

Atty. Emmanuel S. Ugay

Ugay Law Office, 2nd Floor, Marcela Bldg.,

Poblacion East, Rosario, La Union

Position Paper for the Complainant,Emil M. Rosario vs. Napintas

Page 14 of 14
Logistics and Distribution, Inc.; Re: Illegal Dismissal