REPUBLIC OF THE PHILIPPINES

Department of Labor and Employment

NATIONAL LABOR AND RELATIONS COMMISSION
National Capital Region
Quezon City

ELPIDIO PESADO BODOLLO

Complainant,

-versus- NLRC CASE NO. NCR. 01-00180-19

FASTEL SERVICE INC./ANTHONY ISAIS

Respondent(s).
x--------------------------------------------------------x

POSITION PAPER
(For the Respondents)

The undersigned counsel respectfully enters his appearance as

counsel for respondent FASTEL SERVICE INC./ANTHONY ISAIS
Henceforth, all papers, documents, notices and/or orders shall be
addressed to the hereunder address of the undersigned from now on.

ATTY. JORICO FAVOR BAYAUA

3/F Gonzalez Building #1888
Orense St. Guadalupe Nuevo, Makati City
Tel No.(02) 750-4439 / (02) 881-7629

Respondent FASTEL SERVICE INC./ANTHONY ISAIS through the

undersigned counsel and unto this Honorable Office most respectfully
submits this Position Paper and further aver that:

PREFATORY STATEMENTS

“It is true that the Constitution has placed a high

regard for the welfare of the labor sector. However,
social and compassionate justice does not
contemplate a situation whereby the management
stands to suffer for certain misconceptions created
in the mind of an employee. ( Lemery Savings &
Loan Bank v. National Labor Relations
Commission G.R. No. 96439, January 27, 1992,
205 SCRA 492)

NATURE OF THE CASE

This is a case for alleged Illegal Dismissal – Actual, Non-Payment –

Separation Pay, Non-Payment – Others - PONDO, Moral and Exemplary
Damages, Attorney’s Fees.
 PARTIES

Complainant, ELPIDIO PESADO BODOLLO of legal age, Filipino and with

postal address at 104-A Bagong Lipunan Condo II, Rawiss, Tondo, Manila
NCR 1013 where he may be served with notices, resolution, decision, or
other processes of this Honorable Office.

Respondent, FASTEL SERVICE INC a business created and existing

under the Laws of the Philippines and respondent ANTHONY C. ISAIS is
being sued as officer and the President of FASTEL SERVICE INC with
business address at 1724-1736 A. Rivera St. Tondo Manila NCR 1000
where they may be served with summons, notices and other processes of
this Honorable Office.

STATEMENT OF THE FACTS AND OF THE CASE

1. Herein respondent company is a contractor of several communication

companies. As part of its contractual obligations it fields out Technicians to
facilitate and address to internet complaints by its subscribers.

2. The herein complainant was hired as FRM (Fixed Rate Maintenance) Technician
as project based employee. After every end of project employment the herein
employer would offer him another new project based contract.

3. That on December 4, 2017 herein complainant signed a Contract of Employment

as FRM (Fixed Rate Maintenance) Technician pertinent portion is herein quoted
as follows:

“xxx ikinagagalak kong sabihin na ikaw ay magiging bahagi

ng Fastel Services Inc. Simula sa Enero 1, 2018 hangang
Disyembre 31, 2018 bilang isang project based employee
na may designation na FRM technician. Ito ay alinsunod sa
kasunduan ng Fastel Services Inc. at ng mga
Telecommunication Company na kliyente nityo na
magtatagal simula Enero 1, 2018 hangang Disyembr 31,
2018. xxx”

Copy of the Contract of Employment as Fixed Rate Maintenance Technician is

herein attached as ANNEX “___.”

4. Sometime July 1, 2018 the herein complainant was absent without leave from his
employment, so the herein respondent was sent through courier a Return to
Work Order with Notice to Explain (Abiso ng Pagpapabalik sa Trabaho na may
kasamang pagpapaliwanag) dated July 5, 2018.

Copy of the Abiso ng Pagpapabalik sa Trabaho na may kasamang

pagpapaliwanag dated July 5, 2018 and attached Notice to Explain are herein
attached as ANNEX “_____” and “_____” respectively

5. The herein complainant received the Return to Work Order with Notice to Explain
through courier on July 8, 2018.

Copy of the LBC Transmittal Receipt is herein attached as ANNEX “____”

respectively.
6. Thereafter, the herein complainant submitted his written explanation which he
date July 5, 2018, the contents of which is quoted, to wit:

“xxx SA KINAUUKULAN,

PINABABATID KO PO ITO AY PAGKAKATAON NA DUMATING NA

DI MAARING PALAMPASIN, PARA SA MAGANDANG
KINABUKASAN NG AKING PAMILYA KAYA AKO NAPALIBAN NG
WALANG PAALAM SA PANGHAHANAP BUHAY.

SANA AY MAUNAWAAN NINYO ANG BAGAY NA PARA SA

PAMILYA AY GAGAWIN ANG MAKABUBUTI PARA SA
MAKAPAGBIGAY NG KAGINHAWAAN SA KANILA xxx”

Copy of the complainant’s written explanation dated July 5, 2018 is herein

attached as ANNEX “___”.

7. For the kind knowledge and information of this Honorable Labor Arbiter, it was
during this time the herein Complainant went on daily rallies concerning the
PLDT – DOLE issue on regularization. Correlatively, despite being ordered to
return to work the herein Complainant refused to do so and choose to devote his
time to go on rallies with the MKP rather than continue working.

8. Eventually, some of the rallying employees of the respondent reported back to

work after a couple of days or upon receiving the Return to Work Order issued by
respondent management. With this, the respondent choose to await the return of
any employee that would choose to come back from the rally and return to the
employment of the respondent

9. The complainant on the other hand, never or refused to returned back to the
employment of the respondent. In fact, from July 1, 2018 up to the time of the
expiration of his one (1) year contract on December 31, 2018 or period of six (6)
months, the herein complainant never went back and refused to work for the
respondent. Hence, the herein respondent considered the complainant to have
abandoned his employment.

10. Considering that the one (1) year contract for 2018 for ALL of the respondent
employees were nearing expiration, the herein respondent issued a thirty (30)
day Notice to Terminate Project Based Contract to ALL concerned employees,
including the herein complainant. As company practice, after the expiration of
the one (1) year contract for 2018, a new employment contract would be
executed by the respondent and ALL its employees for 2019. This practice
is done on a yearly basis..

Copy of the Notice to Terminate Project based Employment Contract of

Complainant Elpido Bodollo dated November 29, 2018 is herein attached as
ANNEX “5”.

11. The herein respondent offered to ALL employees a contract of employment

for 2019 and all were able to sign said contract. For the record, the
respondent welcomed any employee including the complainant to appear at the
office premises in order to sign a new contract for the year 2019. However,
disconcertingly, the complainant never showed.

12. Instead the herein complainant after six (6) months of abandoning his work,
perplexingly went straight to the NLRC to file a complaint for alleged illegal
dismissal and other claims.
 Copy of the Summons dated January 8, 2019 together with the Complaint
January 9, 2019 are herein attached as ANNEXES “5’ and “6” respectively.

13. During the mandatory conference, no settlement was reached. Hence the
parties were required to submit their respective position paper. Hence, this
position paper for the respondents.

ISSUES

WHETHER OR NOT THE COMPLAINANT WAS

DISMISSED.

WHETHER OR NOT COMPLAINANT IS

ENTITLED TO SEPRATION PAY

WHETHER OR NOT COMPLAINANT IS

ENTITLED TO MORAL AND EXEMPLARY
DAMAGES, ATTORNEY’S FEES

ARGUMENTS AND DISCUSSION

The Complainant was never

dismissed from employment.

14. To begin with, the herein respondent respectfully maintains that he did not
terminate the employment of the complainant, nor was there any intention to
terminate his services. The contract of the complainant expired on December 31,
2018. in fact he is aware of the practice of the respondent company of renewing
contracts of all employees on a yearly basis.

15. In addition thereto, the complainant is aware that the 30 day Notice to terminate
Project Based Employment Contract is a STANDARD FROM received by ALL
employees subject for renewal.

16. To prove this, copies the Notice to terminate Project Based Employment Contract
of some employees such as BENJAMIN DIWA, JAY DELOS REYES, DENNIS
JACINTO, ERWIN TALLADA, and RAYMOND PIADO all dated November 29
2018 are herein attached as ANNEXES “____”, and series.

17. Correspondingly, the very same above name employees have who have
received the Notice to terminate Project Based Employment Contract dated
November 29, 2018 all executed a project employment contract for 2019 and is
still currently employed by the respondent company.

Copies of the project employment contract of BENJAMIN DIWA, JAY DELOS

REYES, DENNIS JACINTO, ERWIN TALLADA, and RAYMOND PIADO are
herein attached as ANNEXES “____”, “___’ and “___’.

18. Verily, if the herein complainant would have just come to work he would have
known that a new project employment contract would be executed between
herein respondent and ALL employees for 2019. However he did not.
19. Worth noting is the deliberate act of the complainant of refusing to go back to
work despite being furnished a Report to Work Order and Notice to Explain which
he received.

20. Moreover, the complainant even submitted his explanation dated July 5, 2018
(Annex “___”) and never showed up for the succeeding Months of July, August,
September, October and November until the expiration of his yearly contract on
December 31, 2018. In other words, after the complainant submitted his written
explanation he never manifested his intention to return to the employment of the
company.

21. In fact, from the very wordings of the herein complainant as contained in his
explanation dated July 5, 2018 he informed the respondent that an “opportunity
came up which he could not let go off and he had something else (other than
working for the respondent) which would benefit his family”. Re-quoting the
words of the herein complainant:

“xxx SA KINAUUKULAN,

PINABABATID KO PO ITO AY PAGKAKATAON NA DUMATING

NA DI MAARING PALAMPASIN, PARA SA MAGANDANG
KINABUKASAN NG AKING PAMILYA KAYA AKO NAPALIBAN NG
WALANG PAALAM SA PANGHAHANAP BUHAY.

SANA AY MAUNAWAAN NINYO ANG BAGAY NA PARA SA

PAMILYA AY GAGAWIN ANG MAKABUBUTI PARA SA
MAKAPAGBIGAY NG KAGINHAWAAN SA KANILA xxx

22. From the very wordings of the herein complainant, he admitted the following:

i) That he had other opportunities that came up;

ii) That he needed to take this opportunity;
iii) That this opportunity would better the situation of his family;
iv) That he admitted leaving his employment without any notice;
v) And his overt act of refusing to come back to work.

23. Correspondingly, it is the complainant himself who severed his employment from
the respondent and abandoned his work. He had the all the time or the whole six
(6) months from July to December 2018 to come back to work and yet he refused
to do so.

Copy of the payroll attendance for the year 2018 and the months of July to
December 2018 of Complainant Elpidio Bodollo as verified by Human Resources
for Payroll Ms. Mary Rose E. Nate is herein attached as ANNEX “___”.

24. A fair perusal of the payroll attendance of the complaint would show that he was
no longer reporting to work for a period of six (6) months. The herein respondent
even assumed that the complainant must have found a new job and abandoned
his employment with the respondent as no family man would survive without any
work for six (6) months.

25. As the Supreme Court held in the case of Samarca v. Arc-Men Industries, Inc.,
459 Phil. 506, 515 (2003), citing MSMG-UWP v. Hon. Ramos, 383 Phil. 329,
371-372 (2000), to wit:

“xxx Jurisprudence is replete with rulings that for

abandonment of work to exist, it is essential that (1) the
employee must have failed to report for work or must have
 been absent without valid and justifiable reason; and (2)
there must have been an indisputable intention to sever the
employer-employee relationship manifested by some overt
acts, with the second element as the more determinative factor
xxx”

26. Verily, both elements are present in this case, the herein complainant (1) failed
to report for work and was absent without valid and justifiable reason and
(2) he had the indisputable intention to sever the employer-employee
relationship by his overt act of informing the respondent that he had other
opportunities that came up that would better serve his family which he
choose over his employment.

27. While, it may be true that the complainant abandoned his employment, the
respondent did not terminate his employment, they allowed his contract to lapse
hoping that he would return to his employment before his contract expired.
However, the complainant did not.

28. Hence, considering that his contract was nearing its end (December 31, 2018),
they gave notice to the complainant through a Notice to terminate Project based
employment Contract following company procedure and as required by law. It
should be noted that the Termination of an employee and Notice to Terminate
Project Based Contract are two different matters.

29. As the Supreme Court held in the case of MACHICA V. ROOSEVELT SERVICE
CENTER, INC. G.R. NO. 168664, 4 MAY 2006, 489 SCRA 534, 544-545 that:

“xxx The rule is that one who alleges a fact has the
burden of proving it; thus, petitioners were burdened to
prove their allegation that respondents dismissed them from
their employment. It must be stressed that the evidence
to prove this fact must be clear, positive and
convincing. The rule that the employer bears the burden
of proof in illegal dismissal cases finds no application
here because the respondents deny having dismissed
the petitioners.

30. Applying the above cited jurisprudence to the given fact at hand, the burden of
proof falls upon the complainant to show that he was illegally dismissed by the
respondent. Nowhere within the given facts does it show that the respondent
illegally terminated the complainant.

31. In illegal dismissal cases, it is incumbent upon the employees to first establish
the fact of their dismissal before the burden is shifted to the employer to prove
that the dismissal was legal.” (EXODUS INTERNATIONAL CONSTRUCTION ET
AL. VS. GUILLERMO BISCOCHO ET AL. G.R. NO. 166109, FEBRUARY 23,
2011.)

32. Assuming without admitting that the complainant was indeed terminated,
records show that he was afforded the twin elements of Notice and Hearing
in which a Notice to Explain dated June 1, 2018 was given to him and was
afford his chance to explain through his letter dated July 5, 2018. Facts
show that there was more than substantial compliance under the law.

The complainant was paid his

thirteenth (13th) month pay
33. Respondent maintains that the complaint has always paid the complainant
his13th month pay for his past employment.

Copy of Transmittal Records showing receipt of 13 th month pay is herein attached

as ANNEX “__”

34. As for his 13th month pay for the year 2018, a query is raised before the
Honorable Labor Arbiter as to how would the herein respondent pay his 13 th
month pay for the year 2018 if the complainant was not reporting for duty and
has abandoned his work?

35. Be that as it may, the herein respondent is willing to pay his 13 th month pay of the
complainant for the year 2018 pro-rated.

Complainant is not entitled to separation pay

36. In illegal dismissal cases, it is incumbent upon the employees to first establish
the fact of their dismissal before the burden is shifted to the employer to prove
that the dismissal was legal.” (EXODUS INTERNATIONAL CONSTRUCTION ET
AL. VS. GUILLERMO BISCOCHO ET AL. G.R. NO. 166109, FEBRUARY 23,
2011.)

37. From the very facts in themselves supported by the attached evidence on record,
the claim for separation pay of the herein complainant must be given scant
consideration by this Honorable Office.

38. Accordingly, Separation pay is only granted when the herein complainant was
prevented from working or instances when illegal dismissal was present.

39. Verily, the herein complainant was never prevented from working as the herein
respondent had no reason to prevent the complainant from working. In fact, it
was the complainant who chose to stop working for his own personal reasons.
Furthermore, it is an established fact that the complainant was never dismissed
by the respondent.

40. A query is raised unto this Honorable Office as to how can the separation pay be
awarded when the complainant was never illegally dismissed or prevented to
work by the respondent in the first place.

41. Under law, there are at least five instances in which an employee is entitled to
payment of separation pay upon severance of employment. One of which is
when the termination from service of the employee has been declared illegal, but
his reinstatement to his former position is no longer feasible for some valid
reason, e.g., when reinstatement is rendered impossible due to subsequent
closure of business, or when the relationship between employer and employee
has become strained (doctrine of strained relations). ( GABUAY V. OVERSEA
PAPER SUPPLY, G.R. NO. 148837, AUGUST 13, 2004.

42. Clearly, there has been no strained relations that was established by the
complainant prior to the fact that he abandoned his employment in the company,
furthermore there was no illegal dismissal as he was never dismissed in the first
place as his position in the company is still vacant and open for him to resume
employment if he chooses to do so. On these points alone, the claim for
separation pay has no legal leg to stand on.
 Respondent is willing to return the
Retention/ Cash Bond (Pondo) of the
Complainant after employment.

43. For the kind knowledge and information of the Honorable Labor Arbiter, the
posting of Cash Bond/ retention has been an on-going valid practice by the
respondent. Said Cash Bond / retention is to answer for any loss or damage of
property that the employer may incur. The making of deductions for cash bonds
or deposits is one of the allowable deductions from the employee’s wages
(Article 114, Labor Code of the Philippines).

44. Upon severance of the employee from the employment of the respondent, the
Cash Bond/ Retention shall be returned to the complainant provided he
undergoes clearance procedure in the company.

There Being No Illegal Dismissal to

Speak of, Complaint is not Entitled to
Moral and, Exemplary Damages;
Attorney’s Fees

45. Complainant is not entitled to moral damages prayed for. Moral damages are
recoverable only where the dismissal of the employee was tainted with bad faith
or fraud, or where it constituted an act oppressive to labor, and done in a manner
contrary to morals, good customs, or public policy, while exemplary damages
may be awarded only if the dismissal was done in a wanton, oppressive, or
malevolent manner. (Permex, Inc. vs. National Labor Relations Commission,
323 SCRA 121)

46. Contrary to the allegations of the complainant, it is to be considered that herein

respondents are in truth and in fact the true victims of this whole unprecedented
ordeal;

47. Accordingly, herein complainant anchors its entire claim on the allegation of
illegal dismissal when actually a fair perusal of the facts and evidence would
show that herein complainant was never dismissed;

48. If herein complainant was truly illegally dismissed, he would have gone to the
NLRC and filed his complaint for illegal dismissal the very next day after July 5,
2018 or anytime within last year. Instead it took him six (6) months to file his
complaint after the expiration of his contract. Such act is clearly just an
afterthought.

49. Truly, the complainant is with the underhanded intention of enriching himself at
the expense of the respondent. In connection thereto, it is also worth applying the
case of NORTHWEST AIRLINES V. LAYA 382 SCRA 730, were the Supreme
Court stated that:

“xxx “xxx Damages are not intended to enrich a

complainant at the expense of the defendant xxx”

50. Again, in the case of PLEYTO V. LOMBOY 432 SCRA 329 the Highest Court in
the land held that :
 xxx Moral damages, though incapable of pecuniary
estimation, are in the category of an award designed to
compensate the claimant for actual injury and are not meant
to enrich complainant at the expense of defendant xxx

51. Furthermore, in the case of PEOPLE V. SANCHEZ 367 SCRA 520 in which the
Supreme Court held, to wit:

“xxx Moral damages are emphatically not intended

to enrich a complainant at the expense of a
defendant they are awarded only to enable the injured
party to obtain means, diversion or amusements that
will serve to alleviate the moral suffering he has
undergone by reason of the defendant’s culpable
action. xxx

52. And again, in the case of JACULIN v. PEOPLE 378 SCRA 453 the Supreme
Court had the occasion to settle that:

“Moral Damages are not intended to enrich a

complainant but awarded only to enable an injured party
obtain some means that would help obviate the suffering
sustained on account of the culpapble action of an
offender. xxx”

53. It is crystal clear, that complainant aims to deviously enrich himself from this
whole unwarranted ordeal, which he caused and insinuated in the first place at
the expense of the respondent. In fact, taking into application the above-cited
plethora of jurisprudence; nowhere on records of this case does the complainant
allege acts of bad faith of the respondent to justify the claim for moral damages

54. As held by the Supreme Court in the case of PEOPLE v. BAGCA 350 SCRA
402 which held that:

xxx Moral Damages can be awarded only upon sufficient

proof that the aggrieved parties are entitled thereto. xxx”

55. In connection thereto, herein complainant wants to impress upon this Honorable
Office that he should be compensated for an imaginary claim of illegal dismissal
and malicious imputation of bad faith against the respondent. The truth is Such
mere contentions cannot be given scant consideration as the Supreme Court
held in the case of NATIONAL POWER CORPORATION V. PHILIPP
BROTHERS OCEANIC INC., 369 SCRA 629 that:

“xxx “xxx A person will be protected only when he acts in

the legitimate exercise of his right, that is, when he acts
with prudence and in good faith; but not when he acts
with negligence or abuse xxx”

56. Records would show that herein complainant was not in the exercise of his
legitimate right when he assumed and claimed to be illegally dismissed. Truly it
was a devious ploy to manipulate the circumstances and sue the respondents in
order to collect money in the guise of unfounded claim for separation pay and
damages.

57. Worthy of consideration is the principle in the award of moral damages that the
award should find semblance of malice or bad faith on the part of the respondent.
In a plethora of cases decided by the Supreme Court such as the case of
MIRASOL V. COURT OF APPEALS, 351 SCRA 629, it was held that:
 “xxx Absent showing of bad faith moral damages cannot be
awarded. xxx”

58. Again, in the case of SARMING v. DY, 285 SCRA 131 the Supreme Court again
held that:

xxx Moral damages improperly awarded, absent a specific

finding and pronouncement from the trial court that the
other party acted in bad faith or with malice. Xxx

59. Further, in the case of FRANCISCO V. FERRER JR, 353 SCRA 261:

xxx bad faith does not simply connote bad judgment or

negligence, it imports a dishonest purpose or some
moral obliquity and conscious doing of a wrong xxx

60. A review of the facts would show the specific lack of bad faith and malice on the
part of the respondent. Moral damages are not awarded if the defendant is not
shown to have acted fraudulently or with malice or bad faith. (GSIS v. LABUNG-
DEANG 365 SCRA 341).

61. Besides the mere sneaking suspicions and baseless imputations and conjecture
of the complainant, there is nothing else to support his claim and overcome the
presumption of good faith on the part of the respondent. As held by the Supreme
Court in the case of ESTANISLAO JR V. COURT OF APPEALS 362 SCRA 229
that:

The law presumes good faith, and any person who seeks
an award of damages due to acts of another has the
burden of proving the latter acted in bad faith or with ill-
motive. xxx”

62. In summary, worth internalizing is the case of LEDESMA, JR. VS. NATIONAL
LABOR RELATIONS COMMISSION, 537 SCRA 358, the Supreme Court made
this pronouncement in the wise:

xxx The law in protecting the rights of the employee,

authorizes neither oppression nor self-destruction of the
employer – there may be cases where the circumstances
warrant favouring labor over the interests of management but
never should the scale be so tilted if the result is an injustice
to the employer. xxx”

63. In summary, worthy worth internalizing is the case of [Leyte IV Electric

Cooperative, Inc. vs. Leyeco IV Employees Union-ALU, 537 SCRA 154] when
the Supreme Court made this pronouncement in the wise:

“While the Constitution is committed to the policy of social

justice and the protection of the working class, it should not
be supposed that every labor dispute will be automatically
decided in favor of labor – justice is in every case for the
deserving, to be dispensed in the light of the established facts
and applicable law and doctrine.
 PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

unto this Honorable Office that the Complaint dated January 7, 2019
be DISMISSED for utter lack of merit.

Such other reliefs just and equitable under the circumstances are
likewise prayed for.

Makati City for Quezon City. March ___, 2019.

BAYAUA AND ASSOCIATES LAW OFFICES

Counsel for the Respondents
3rd F. Gonzalez Bldg., 1888 Orense St.,
Guadalupe Nuevo, Makati City
Tel Nos: (02) 750-4439 / (02) 881-7629

By:

ATTY. JORICO FAVOR BAYAUA

IBP Life Member O.R. No. 09572 / 01-13-11
PTR No. 6617744/ 01-05-18 / Makati City
Roll No. 47842
MCLE Compliance No. V-0022582
July 4, 2016

COPY FURNISHED:

ELPIDIO PESADO BODOLLO

104-A Bagong Lipunan Condo II,
Rawiss, Tondo, Manila NCR 1013