Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Quezon City
National Capital Region

IROSE T. MALUNHAO, RAYMART A.

BONSATO, FE C. EIMAN, HELEN D.
DELA VEGA, ELVIE I. AGSAULIO,
RONALYN C. MANGUBAT, JEZA R.
PEPITO, PILIPINA E. BRIOL, and
OMEGA N. BOLAÑOS,

Complainants,

- versus - NLRC-NCR Case No. 05-

08766-18
HON. L.A. ROMMEL R.
VELUZ

SURGILINK ENTERPRISES AND

PHARMACY/JOYCE ANN MEDINA
LOPEZ,
Respond
ents.
x------------------------------------------------------
---x

CONSOLIDATED POSITION PAPER

Complainants, by counsel, to this Honorable Office,

most respectfully set forth the following:

PREFATORY STATEMENT

“It is no less than the Constitution which

guarantees protection to the workers’ security of
tenure as a policy of the State. This guarantee is an
act of social justice. (The Philippine American
Life and General Insurance Co. vs Gramaje,
G.R. No. 156963, 11 November 2004.). As a rule,
employment cannot be terminated by an employer
without any just or authorized cause. The 1987
 Constitution in Section 3, Article 13 guarantees
security of tenure for workers and because of this, an
employee may only be terminated for just or
authorized causes that must comply with the due
process requirements mandated by law. Hence,
employers are barred from arbitrarily removing their
workers whenever and however they want. The law
sets the valid grounds for termination as well as the
proper procedure to take when terminating the
services of an employee. (Alert Security and
Investigation Agency, Inc vs Pasawilan, et al.;
G.R. 182397; 14 September 2011).

Due process must be observed because the

dismissal affects not only the employee's position
but also his means of livelihood. Truly,
unemployment brings untold misery and hardship
not only to the workingmen but also to those who
are dependent on the voyage earners. When a
person has no property, his job may possibly be his
only possession or means of livelihood. Therefore, he
should be protected against arbitrary deprivation of
his job.” (Philippine-Singapore Transport
Services, Inc. vs NLRC; G.R. 95449; 18 August
1997).

THE CASE

This is a case for UNFAIR LABOR PRACTICE (ULP)

due to union busting and illegal closure; ILLEGAL
DISMISSAL; UNDERPAYMENT of salary/wages and
overtime pay; NON-PAYMENT of holiday pay, premiums on
holiday and rest days, service incentive leave pay (SILP),
night shift differential, 13th month pay and ECOLA; MORAL
AND EXEMPLARY DAMAGES; ATTORNEY’S FEES; and
PAYMENT OF LITIGATION AND THE LIKE EXPENSES,
including cost of the suit, filed by herein complainants
against herein respondents.

As reliefs, complainants seek for their immediate

reinstatement to their former positions without loss of
seniority rights and other privileges under the law and the
payment of their full back wages, inclusive of allowances,
and to other benefits or their monetary equivalent computed

2
from the time their compensations were withheld from them
up to their actual reinstatement.

Furthermore, complainants seek that they will be

compensated for other money claims, moral and exemplary
damages, ten percent (10%) attorney’s fees, computed from
the total monetary award, and other related litigation costs
and expenses.

THE PARTIES

Complainants IROSE T. MALUNHAO, RAYMART A.

BONSATO, FE C. EIMAN, HELEN D. DELA VEGA, ELVIE I.
AGSAULIO, RONALYN C. MANGUBAT, JEZA R. PEPITO,
PILIPINA E. BRIOL, and OMEGA N. BOLAÑOS are regular
employees of respondent SURGILINK ENTERPRISES AND
PHARMACY. They may be served with summonses and
other legal processes, through the undersigned counsel, at
Room 206, Jiao Bldg. No. 2 Timog Avenue, Quezon City.

Respondent SURGILINK ENTERPRISES AND

PHARMACY, upon the other hand, is a business enterprise
operating under and by virtue of Philippine laws while
respondent JOYCE ANN MEDINA LOPEZ is the
owner/manager of the respondent company and the person
primarily liable to the pitiless dismissal of herein
complainants. They may be served with summonses and
other legal processes at 1658 Rizal Avenue, Sta Cruz, Manila
NCR 1000 and/or 1748 Rizal Avenue, Brgy. 337, Zone 034,
Sta. Cruz, Manila 1000 (in front of Department of Health).

FACTS OF THE CASE

1. Complainants IROSE T. MALUNHAO, RAYMART

A. BONSATO, FE C. EIMAN, HELEN D. DELA VEGA,
ELVIE I. AGSAULIO, RONALYN C. MANGUBAT, JEZA R.
PEPITO, PILIPINA E. BRIOL, and OMEGA N. BOLAÑOS
are regular employees of respondent Surgilink Enterprises
and Pharmacy. They were engaged to perform works which
are usually necessary or desirable in the usual trade or
business of respondent Surgilink Enterprises and Pharmacy,
an enterprise engaged in the trade and sale of pharmacy
products.

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 2. The complete facts and circumstances of this case
are clearly and concisely narrated in complainants’
Pinagsama-samang Sinumpaang Salaysay which is hereto
attached, and made integral part hereof as, Annex “A” and
hereunder quoted for ready reference, to wit:

“KAMI, sina IROSE T. MALUNHAO,

RAYMART A. BONSATO, FE C. EIMAN, HELEN
D. DELA VEGA, ELVIE I. AGSAULIO, RONALYN
C. MANGUBAT, JEZA R. PEPITO, PILIPINA E.
BRIOL, at OMEGA N. BOLAÑOS, matapos
manumpa alinsunod sa ipinag-uutos ng batas, ay
kusang-loob at malayang nagpapahayag na:

(1) IROSE T. MALUNHAO

Ako po si IROSE T. MALUNHAO, Filipino,

nasa hustong gulang, at naninirahan sa #15 Int.
1 Nadurata St., 4th Avenue, Grace Park, Caloocan
City. Ako po ay nagsimulang mag-trabaho sa
Surgilink Pharmacy noong ika-23 ng Pebrero
2008 bilang isang Pharmacy Assistant. Ang aking
sweldo sa isang araw ay P230.00 kada araw
noon taong 2008; P300.00 noong 2010; P350.00
noong 2012; P385.00 taong 2014; P400.00 taong
2015 at naging P430.00 noong 2017-2018;

(2) RAYMART A. BONSATO

Ako po si RAYMART A. BONSATO, Filipino,

nasa hustong gulang, at naninirahan sa 1409
Kalimbas St., Sta. Cruz, Manila. Ako po ay
nagsimulang mag-trabaho sa Surgilink Pharmacy
noong ika-19 ng Hunyo 2014 bilang isang
Helper/Sales Staff. Ang aking sweldo sa isang
araw ay P180.00 noong 2014; taong 2015
naging P230.00; pagkaraan ng anim (6) na
buwan, P250.00; taong 2016 naging P300.00;
anim (6) na buwan ulit, P350.00; taong 2017
naging P400.00 at sa kasalukuyan ay P410.00;

(3) FE C. EIMAN

Ako po si FE C. EIMAN, Filipino, nasa

hustong gulang, nakatira sa 1422-A M.
Natividad, Sta. Cruz, Manila, at nag-tatrabaho sa
Surgilink Pharmacy bilang Purchaser/Supervisor.

4
Nagsimula akong magtrabaho dito noong August
22, 2003 na may sahod sa isang araw na
Apatnaraang Piso (P400.00) at, sa kasalukuyan,
ito ay naging P575.00;

(4) HELEN D. DELA VEGA

Ako po si HELEN D. DELA VEGA, Filipino,

nasa hustong gulang at nakatira sa 1726
Oroquita St., Sta. Cruz, Manila. Nagsimula po
akong pumasok sa Surgilink Pharmacy noong
May 2005 bilang isang Pharmacy Assistant at
ang aking sahod sa isang araw ay Isang Daan at
Limapung Piso (P150.00). Sa kasalukuyan, ang
aking sahod sa isang araw ay Apatnaraan at
Limampung Piso (P450.00);

(5) ELVIE I. AGSAULIO

Ako po si ELVIE I. AGSAULIO, Filipino, nasa

hustong gulang at nakatira sa No. 71 Marcela
Street, Maypajo, Caloocan City. Nagsimula po
akong pumasok sa Surgilink Pharmacy noong
ika-1 ng Agosto 2006 bilang isang Pharmacy
Assistant at ang aking sahod sa isang araw ay
Isang Daan at Walumpung Piso (P180.00). Sa
kasulukuyan ang aking sahod kada araw ay
P500.00;

(6) RONALYN C. MANGUBAT

Ako po si RONALYN C. MANGUBAT, Filipino,

nasa hustong gulang at nakatira sa 1602
Sebastian St. Bagbaguin, Valenzuela City.
Nagsimula po akong pumasok sa Surgilink
Pharmacy noong ika-14 ng Enero 2015 bilang
isang Pharmacy Assistant at ang aking sahod sa
isang araw ay P420.00;

(7) JEZA R. PEPITO

Ako po si JEZA R. PEPITO, Filipino, nasa

hustong gulang at naninirahan sa #3172 Pilar
Street, Manuguit, Tondo Manila. Nagsimula po
akong pumasok sa Surgilink Pharmacy noong
ika- 12 ng Septyembre 2011 bilang isang

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Pharmacy Assistant at ang aking sahod sa isang
araw ay Apatnaraan at Dalawampung Piso
(P420.00);

(8) PILIPINA E. BRIOL

Ako po si PILIPINA E. BRIOL, Filipino, nasa

hustong gulang at nakatira sa 156 Champaca
St., Paliwas, Obando, Bulacan. Nagsimula po
akong pumasok sa Surgilink Pharmacy noong
ika-5 ng Nobyembre 2000 bilang isang
Supervisor at ang aking sahod sa isang araw ay
Apatnaraan at Walumpung Piso (P480.00);

(9) OMEGA N. BOLAÑOS

Ako po si OMEGA N. BOLAÑOS, Filipino,

nasa hustong gulang at nakatira sa 933 R. Papa
St., Sampaloc, Manila. Pumasok ako sa Surgilink
Pharmacy noong Hunyo 2015 bilang isang
Pharmacy Assistant at ang aking sahod sa isang
araw ay Tatlongdaan at Animnapu’t Limang Piso
(P365.00);

(10) PARA SA LAHAT

(a) Sa aming pagtatrabaho, mayroong

mga panahon na paghihigpit ang ginawa ng
pamunuan ng Surgilink Pharmacy sa amin.
Halos araw-araw kaming pinag-iinitan dahil
sinisingil sa amin ang mga expired na
produkto na mismong pinadala ng
kumpanya, pati ang nawawalang injectable
ay isinisisi pa rin sa amin. Kapag kami
naman ay nale-late sa trabaho, sinisingil
kami ng kumpanya base sa oras ng aming
pagkakahuli sa pagpasok;

(b) May pangyayari pang naganap sa

kumpanya noong nakatanggap sila ng sulat
galing Department of Labor and Employment
(DOLE). Upang magmukhang rehistrado ang
nasabing pharmacy, nagpadala sila ng
agency (Job on Link) at hinikayat kaming

6
magsinungaling at pumirma sa nasabing
sulat. Dahil din dito, nag-iba ang shifting ng
pasok ng kumpanya na dating 3 shifts, ay
naging 2 shifts na lamang;

(c) Bukod po sa wala sa minimum wage

and sahod namin, ang malupit pa nito ay
wala kaming benepisyo natatangap sa
kumpanya tulad ng SSS, PhilHealth, PagIbig,
Double pay, Sick Leave, Maternity Leave,
13th month pay at Night Shift Differential.
Kinakaltasan din kami ng Isang Daang Piso
(P100.00) para daw sa Emergency Fund.
Kapag sumapit na ang Emergency ay hindi
ito makukuha agad at kung makukuha man,
ito ay mas mababa sa aming ibinigay;

(d) Kung kaya’t, nagpasya kaming

magkakasama na magtatag ng UNYON
upang igiit sa kumpanya ang pagtupad nila
sa labor standards at ipaglaban ang aming
mga karapatan. Kami ay sumapi sa labor
federation na Kilusan ng mga
Manggagawang Katipunan (KMM-Katipunan)
at binuo ang KMM-Surgilink Enterprises and
Pharmacy Chapter;

(e) At nang lumakas ang aming

organisasyon, naging banta ito laban sa mga
malupit na namamahala sa loob ng
pharmacy;

(f) Noong papasok na kami sa

trabaho noong ika-30 ng Abril, 2018, nagulat
na lamang kami na nakasarado na ang
Pharmacy at may karatulang nakalagay na
“Close for Renovation”. Ang masakit pa dito,
hindi man lamang kami binigyan ng
impormasyon tungkol sa pagsasara ng
botika. Kalaunan, pinadalhan kami ng sulat
ng kumpanya at sinasabing AWOL na kami at
nalugi na ang kumpanya;

(g) Isa lamang po ang nakikita naming

dahilan ng pagtanggal sa amin. Ito ay ang
pagsama namin sa Kilusan ng mga
Manggagawang Makabayan-Katipunan;

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(h) Malinaw po na ito ay isang Unfair
Labor Practice (ULP). Karapatan po ng
mga manggagawa ang bumuo, sumuporta at
maging kasapi ng isang unyon para
proteksyunan ang kanilang mga karapatan.
Ito po ay nakabatay sa ating Saligang Batas
at ganun din sa Batas Paggawa;

(i) Dahil dito, kami ay sama-samang

dumiretso sa tangapan ng DOLE para idulog
ang aming mga hinaing at mabigyang
katarungan ang aming sinapit.

(j) Dahil po sa iligal na

pagkakatanggal nila sa amin, kami ay
napilitang magsampa ng kaso sa National
Labor Relations Commission (NLRC) upang
panagutin ang pamunuan ng Surgilink
Enterprises and Pharmacy sa kanilang mga
iligal na gawain laban sa kanilang mga
manggagawa na katulad namin;

(k) Dahil din po sa biglaan at iligal na

pagkakatanggal (AWOL) sa amin sa trabaho,
kami at ang aming mga pamilya ay dumanas
ng hindi birong paghihirap dahil sa kami
lamang ang inaasahan nila. Dumanas kami
ng gutom, hindi mapagkatulog, palaging
balisa, takot, walang gana sa pagkain,
kahihiyan at iba pa;

(l) Dahil din po dito ay napilitan

kaming kumuha ng serbisyo ng isang
abogado upang maayos at mahinusay na
malitis ang kasong ito;

(m) Ang biglaang pagkakatanggal sa

amin sa aming mga trabaho ay malinaw na
isang pagmamani-obra upang makatakas sa
kanilang mga pananagutan;

(n) Hindi naging makatarungan ang

pagtrato sa amin ng pamunuan ng Surgilink
Enterprises and Pharmacy. Ang nangyaring
paglabag sa aming mga karapatan, na

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 kaakibat ang matinding paghihirap ng aming
mga pamilya, ay hindi dapat katigan kung
kaya’t lubusan ang aming pakikibaka upang
mabigyan ng tahasang kasagutan ang aming
pagdadalamhati sa kasalukuyan;

(o) Ginawa namin ang Pinagsama-

samang Sinumpaang Salaysay na ito upang
ilahad ang paglabag ng Surgilink Enterprises
and Pharmacy at pamunuan nito sa aming
mga karapatan;

BILANG PATOTOO, ay inilalagda namin sa

ibaba ang aming mga pangalan ngayong ika-
___________________, dito sa ______________,
Philippines.”

ISSUES

I.

WHETHER OR NOT COMPLAINANTS

WERE ILLEGALLY DISMISSED AND
WERE DENIED DUE PROCESS

II.

WHETHER OR NOT RESPONDENTS

ARE GUILTY OF UNFAIR LABOR
PRACTICE DUE TO UNION BUSTING

III.

WHETHER OR NOT RESPONDENTS

ARE SOLIDARILY LIABLE FOR ALL
THE MONEY CLAIMS HEREIN
CLAIMED INCLUDING MORAL AND
EXEMPLARY DAMAGES, ATTORNEY’S
FEES AND OTHER RELATED
LITIGATION EXPENSES INCLUDING
COSTS OF THE SUIT.

DISCUSSION/ARGUMENTS

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COMPLAINANTS WERE ILLEGALLY DISMISSED

Complainants were illegally dismissed.

Complainants were hired, engaged and assigned by

Surgilink Enterprises an Pharmacy to perform activities
which are clearly usually necessary or desirable in the usual
trade or business of the company. Being regular employees
as defined by Article 295 [280], paragraph 1 of the Labor
Code, they cannot be dismissed from their jobs except for
just or authorized causes as provided in Article 294 [279] of
the same Code.

The Court, in Alert Security and Investigation

Agency vs. Pasawilan et. Al. G.R. No. 182397,
September 14, 2011, categorically pronounced:

“As a rule, employment cannot be

terminated by an employer without any just or
authorized cause. No less than the 1987
Constitution in Section 3, Article 13 guarantees
security of tenure for workers and because of
this, an employee may only be terminated for
just or authorized causes that must comply with
the due process requirements mandated by law.
Hence, employers are barred from arbitrarily
removing their workers whenever and however
they want. The law sets the valid grounds for
termination as well as the proper procedure to
take when terminating the services of an
employee.

In De Guzman, Jr. v. Commission on

Elections, the Court, speaking of the
Constitutional guarantee of security of tenure to
all workers, ruled:

x x x It only means that an employee

cannot be dismissed (or transferred) from the
service for causes other than those provided by
law and after due process is accorded the
employee. What it seeks to prevent is

10
 capricious exercise of the power to dismiss.
xxx

Although we recognize the right of

employers to shape their own work force, this
management prerogative must not curtail the
basic right of employees to security of tenure.
There must be a valid and lawful reason for
terminating the employment of a
worker. Otherwise, it is illegal and would be
dealt with by the courts accordingly.

As stated in Bascon v. Court of Appeals:

x x x The employer’s power to dismiss

must be tempered with the employee’s right to
security of tenure. Time and again we have said
that the preservation of the lifeblood of the
toiling laborer comes before concern for business
profits. Employers must be reminded to exercise
the power to dismiss with great caution, for the
State will not hesitate to come to the succor of
workers wrongly dismissed by capricious
employers. (Emphasis Supplied).

COMPLAINANTS WERE DENIED DUE PROCESS

Complainants were denied due process. They were just

instantly and summarily dismissed right then and there on
the flimsy grounds that only respondents can imagine. They
were not even afforded their rights to be informed of the
alleged financial difficulties being faced by the respondents.
Hence, the basis of their dismissal was a mere ruse
employed by the respondents to preclude them from fully
organizing themselves into a union that would eventually
make them a force that would fight for their rights under our
labor laws. In fact, they were just plainly denied of their jobs
upon a sudden closure of the pharmacy. This is a classic
example of an exceedingly brutal denial of due process. The
facts are so plain and simple to be overlooked.

The case of REYNALDO Q. AGULLANO vs.

CHRISTIAN PUBLISHING and CATALINA LEONEN

11
PIZARRO, G.R. No. 164850, September 25, 2008, is
quite instructive on this point, to wit:

“However, on the second requisite, i.e.,

procedural due process, we find the
respondent’s compliance with the twin notice
requirement sadly wanting and inadequate.

In R.B. Michael Press v. Nicanor C. Galit,

this Court had occasion to reiterate that under
the twin notice requirement, the employees
must be given two (2) notices before their
employment could be terminated: (1) a first
notice to apprise the employees of their fault,
and (2) a second notice to communicate to the
employees that their employment is being
terminated. To this, we added:

Not to be taken lightly, of course, is the

hearing or opportunity for the employee to
defend himself personally or by counsel of his
choice.

The procedure for this twin notice and

hearing requirement was thoroughly explained in
King of Kings Transport v. Mamac, in this
wise:

(1) The first written notice to be served on

the employees should contain the specific
causes or grounds for termination against them,
and a directive that the employees are given the
opportunity to submit their written explanation
within a reasonable period. "Reasonable
opportunity" under the Omnibus Rules means
every kind of assistance that management must
accord to the employees to enable them to
prepare adequately for their defense. This should
be construed as a period of at least five (5)
calendar days from receipt of the notice to give
the employees an opportunity to study the
accusation against them, consult a union official
or lawyer, gather data and evidence, and decide
on the defenses they will raise against the
complaint. Moreover, in order to enable the

12
employees to intelligently prepare their
explanation and defenses, the notice should
contain a detailed narration of the facts and
circumstances that will serve as basis for the
charge against the employees. A general
description of the charge will not suffice. Lastly,
the notice should specifically mention which
company rules, if any, are violated and/or which
among the grounds under Art. 282 is being
charged against the employees.

(2) After serving the first notice, the

employers should schedule and conduct a
hearing or conference wherein the employees
will be given an opportunity to (1) explain and
clarify their defenses to the charge against
them; (2) present evidence in support of their
defenses; and (3) rebut the evidence presented
against them by the management. During the
hearing or conference, the employees are given
the chance to defend themselves personally,
with the assistance of a representative or
counsel of their choice. Moreover, the
conference or hearing could be used by the
parties as an opportunity to come to an amicable
settlement.

(3) After determining that termination of

employment is justified, the employers shall
serve the employees a written notice of
termination indicating that: (1) all circumstances
involving the charge against the employees have
been considered; and (2) grounds have been
established to justify the severance of their
employment.

A careful examination of the disciplinary

procedure adopted by the respondent which led
to the dismissal of petitioner shows that the
respondent merely paid lip service to the
foregoing procedural due process requirement.

First, the March 31, 2000 memorandum of

respondent issued to the petitioner, after the
latter failed to attend the DECS and the PIAP

13
meetings, obviously did not satisfy the first
written notice requirement. Albeit this
memorandum required the petitioner to explain
his absence in those two important meetings,
there was clearly no intimation that the
petitioner would be terminated from
employment for this singular offense. No such
intention to dismiss the petitioner can be
inferred from the memorandum because this one
infraction cannot be equated with "gross or
habitual neglect," nor can it be characterized as
"fraud or willful breach" by the petitioner of the
respondents’ trust reposed in him. This was even
borne out by subsequent events, as it was not
until four months later in the July 25, 2000
memorandum that respondents alluded to
petitioner’s termination from employment.

Second, even if we assume that the March

31, 2000 memorandum was already intended to
serve as the first written notice, there would still
be a breach of the procedural due process
requirement, because no hearing or conference
was called by the respondent at which petitioner
could have presented his defenses. The absence
of a hearing or conference likewise vitiates the
July 25, 2000 memorandum. As we said in R.B.
Michael Press:

(T)here is still a need to comply with the twin

notice requirement and the requisite hearing or
conference to ensure that the employees are
afforded due process even though they may
have been caught in flagrante or when the
evidence of the commission of the offense is
strong.

Third, if the July 25, 2000 memorandum is to

be considered the first notice, it would suffer
from patent infirmities, and not just from the lack
of a hearing or conference. It does not grant the
petitioner an opportunity to answer the charges
of absenteeism and tardiness; it does not give
him time to seek the assistance of counsel; and
most tellingly, it was to be followed the very next

14
 day with the notice of termination, effective
immediately.

The respondents lamely proffer the

hypothesis that there was substantial
compliance with the twin notice and hearing
requirement. Unfortunately, the records are
bereft of any proof of compliance, much less
substantial compliance, with the procedure
outlined in King of Kings Transport.

In sum, we hold that the dismissal of

petitioner from employment was attended by a
violation, by the respondents, of procedural due
process.” (Underscoring Ours).

Also instructive and enlightening on this point is the

case of CRC AGRICULTURAL TRADING and ROLANDO B.
CATINDIG vs. NATIONAL LABOR RELATIONS
COMMISSION and ROBERTO OBIAS, G.R. No. 177664,
December 23, 2009, to wit:

“Even assuming that a valid ground to

dismiss the respondent exists, the petitioners
failed to comply with the twin requirements of
notice and hearing under the Labor Code.

The long established jurisprudence holds

that to justify the dismissal of an employee for a
just cause, the employer must furnish the worker
with two written notices. The first is the notice to
apprise the employee of the particular acts or
omissions for which his dismissal is sought. This
may be loosely considered as the charge against
the employee. The second is the notice
informing the employee of the employer’s
decision to dismiss him. This decision, however,
must come only after the employee is given a
reasonable period from receipt of the first notice
within which to answer the charge, and ample
opportunity to be heard and defend himself with
the assistance of his representative, if he so
desires. The requirement of notice is not a mere
technicality, but a requirement of due process to
which every employee is entitled.

15
 The petitioners clearly failed to comply with
the two-notice requirement. Nothing in the
records shows that the petitioners ever sent the
respondent a written notice informing him of the
ground for which his dismissal was sought. It
does not also appear that the petitioners held a
hearing where the respondent was given the
opportunity to answer the charges of
abandonment. Neither did the petitioners send a
written notice to the respondent informing the
latter that his service had been terminated and
the reasons for the termination of employment.
Under these facts, the respondent’s dismissal
was illegal.” (Underscoring Ours).

As regards termination of employment due to

authorized cause, the case of Manila Polo Club Employees’
Union vs. Manila Polo Club, Inc, G.R. No. 172824, 24 July
2013, is instructive:

“It is apparent from the records that this

case involves a closure of business undertaking,
not retrenchment. The legal requirements and
consequences of these two authorized causes in
the termination of employment are discernible.
We distinguished, in Alabang Country Club Inc. v.
NLRC:
x x x While retrenchment and closure of a
business establishment or undertaking are often
used interchangeably and are interrelated, they
are actually two separate and independent
authorized causes for termination of
employment.

Retrenchment is the reduction of personnel

for the purpose of cutting down on costs of
operations in terms of salaries and wages
resorted to by an employer because of losses in
operation of a business occasioned by lack of
work and considerable reduction in the volume
of business.

16
 Closure of a business or undertaking due to
business losses is the reversal of fortune of the
employer whereby there is a complete cessation
of business operations to prevent further
financial drain upon an employer who cannot
pay anymore his employees since business has
already stopped.

One of the prerogatives of management is

the decision to close the entire establishment or
to close or abolish a department or section
thereof for economic reasons, such as to
minimize expenses and reduce capitalization.

While the Labor Code provides for the

payment of separation package in case of
retrenchment to prevent losses, it does not
obligate the employer for the payment thereof if
there is closure of business due to serious losses.

Likewise, the case of Eastridge Golf Club,

Inc. v. Eastridge Golf Club, Inc., Labor-Union,
stressed the differences:

Retrenchment or lay-off is the termination of

employment initiated by the employer, through
no fault of the employees and without prejudice
to the latter, during periods of business
recession, industrial depression, or seasonal
fluctuations, or during lulls occasioned by lack of
orders, shortage of materials, conversion of the
plant for a new production program or the
introduction of new methods or more efficient
machinery, or of automation. It is an exercise of
management prerogative which the Court
upholds if compliant with certain substantive and
procedural requirements, namely:

1. That retrenchment is necessary to

prevent losses and it is proven, by
sufficient and convincing evidence such as
the employer's financial statements
audited by an independent and credible
external auditor, that such losses are
substantial and not merely flimsy and

17
actual or reasonably imminent; and that
retrenchment is the only effective measure
to prevent such imminent losses;

2. That written notice is served on to

the employees and the DOLE at least one
(1) month prior to the intended date of
retrenchment; and

3. That the retrenched employees

receive separation pay equivalent to one
(1) month pay or at least one-half (1/2)
month pay for every year of service,
whichever is higher.

The employer must prove compliance with

all the foregoing requirements. Failure to prove
the first requirement will render the
retrenchment illegal and make the employer
liable for the reinstatement of its employees and
payment of full backwages. However, were the
retrenchment undertaken by the employer is
bona fide, the same will not be invalidated by
the latter's failure to serve prior notice on the
employees and the DOLE; the employer will only
be liable in nominal damages, the reasonable
rate of which the Court En Banc has set
at P50,000.00 for each employee.

Closure or cessation of business is the

complete or partial cessation of the operations
and/or shut-down of the establishment of the
employer. It is carried out to either stave off the
financial ruin or promote the business interest of
the employer.

Unlike retrenchment, closure or cessation of

business, as an authorized cause of termination
of employment, need not depend for validity on
evidence of actual or imminent reversal of the
employer's fortune. Article 283 authorizes
termination of employment due to business
closure, regardless of the underlying reasons and
motivations therefor, be it financial losses or not.

18
 To be precise, closure or cessation of an
employer’s business operations, whether in
whole or in part, is governed by Article 283 of
the Labor Code, as amended. It states:

Article 283.Closure of establishment and

reduction of personnel. - The employer may also
terminate the employment of any employee due
to the installation of labor-saving devices,
redundancy, retrenchment to prevent losses or
the closing or cessation of operation of the
establishment or undertaking unless the closing
is for the purpose of circumventing the
provisions of this Title, by serving a written
notice on the workers and the Ministry of Labor
and Employment at least one (1) month before
the intended date thereof. In case of termination
due to the installation of labor-saving devices or
redundancy, the worker affected thereby shall be
entitled to a separation pay equivalent to at
least his one (1) month pay or to at least one (1)
month pay for every year of service, whichever
is higher. In case of retrenchment to prevent
losses and in cases of closures or cessation of
operations of establishment or undertaking not
due to serious business losses or financial
reverses, the separation pay shall be equivalent
to one (1) month pay or at least one-half (1/2)
month pay for every year of service, whichever
is higher. A fraction of at least six (6) months
shall be considered one (1) whole year.

In Industrial Timber Corporation v. Ababon,

the Court explained the above-quoted provision
in this wise:

A reading of the foregoing law shows

that a partial or total closure or cessation
of operations of establishment or
undertaking may either be due to serious
business losses or financial reverses or
otherwise. Under the first kind, the
employer must sufficiently and
convincingly prove its allegation of
substantial losses, while under the second
kind, the employer can lawfully close shop

19
 anytime as long as cessation of or
withdrawal from business operations was
bona fide in character and not impelled by
a motive to defeat or circumvent the
tenurial rights of employees, and as long
as he pays his employees their termination
pay in the amount corresponding to their
length of service. Just as no law forces anyone
to go into business, no law can compel anybody
to continue the same. It would be stretching the
intent and spirit of the law if a court interferes
with management's prerogative to close or
cease its business operations just because the
business is not suffering from any loss or
because of the desire to provide the workers
continued employment.

In sum, under Article 283 of the Labor Code,

three requirements are necessary for a valid
cessation of business operations: (a) service of a
written notice to the employees and to the DOLE
at least one month before the intended date
thereof; (b) the cessation of business must be
bona fide in character; and (c) payment to the
employees of termination pay amounting to one
month pay or at least one-half month pay for
every year of service, whichever is higher.”
(Emphasis supplied).

From the foregoing, it can be easily gleaned that no due

process was afforded to the complainants when they were
dismissed from their jobs allegedly by reason of financial
reverses suffered by the respondents. In fact, they were
removed from their positions immediately without any
pronouncement as to the alleged company’s financial woes.
No prior written notices were issued to them. Verily, the
complainants herein were illegally dismissed even as the
respondents’ cessation of business is not bona fide in
character, but was effected merely to preclude
complainants’ security of tenure and right to self-
organization.

RESPONDENTS ARE GUILTY OF UNFAIR

LABOR PRACTICE BECAUSE OF THEIR
UNION-BUSTING ACTIVITIES

20
 Respondents are guilty of unfair labor practice because
of their union-busting activities.

Article 259 [248] (a) of the Labor Code states that it

shall be unlawful for an employer to interfere with, restrain
or coerce employees in the exercise of their right to self-
organization. Likewise, paragraph (e) of the same article
prohibits employer to discriminate in regard to wages, hours
of work and other terms and conditions of employment in
order to encourage or discourage membership in any labor
organization. These proscribed acts, among others,
undoubtedly, are unfair labor practices which are
detrimental to the workers’ welfare and rights.

It cannot be gainsaid that the complainants herein are

members of the Kilusan ng Manggagawang Makabayan
(KMM-Katipunan) – Surgilink Enterprises and Pharmacy
Chapter. This fact is clearly stated in complainants’
Pinagsama-samang Sinumpaang Salaysay. When they were
dismissed, complainants could not think of any justified
reason therefor. Thus, it only boils down to one conclusion:
their unceremonious removal from office was triggered by
their union affiliation and/or union activities and not for a just
cause.

To dismiss its employees especially the officers and

members of complainant union who are militant and
dynamic after the organization of the same is something that
smacks of unfair labor practice. In labor parlance that is
union-busting. If respondent company dismissed said
complainants before the organization of complainant union,
there would have been neither misgivings nor suspicion as to
its ulterior motives. But when its management dismissed
said complainants after the organization of their union and
after they had sent a letter of demands for the improvement
of the working conditions of the employees of the company,
that is the legendary last straw that broke the camel's back.
In fine, respondent company (RJ Valor Food Products, Inc., in
this case) is guilty of union-busting. (Oceanic Air Products,
Inc. vs. CIR, G.R. No. L-18704, January 31, 1963).
COMPLAINANTS ARE CLEARLY ENTITLED
TO ALL THE MONEY CLAIMS HEREIN
CLAIMED INCLUDING DAMAGES,
ATTORNEY’S FEES, LITIGATION AND THE
LIKE EXPENSES INCLUDING COST OF THE

21
SUIT FOR WHICH RESPONDENTS ARE
SOLIDARILY LIABLE

A simple perusal of the Complaint and the

Pinagsamang Sinumpaang Salaysay of herein complainants
reveals that respondents have violated different labor
standard laws. Considering that complainants are seeking
the satisfaction of simple money claims, respondents,
therefore, are obligated to submit proofs of payment of such
claims. Otherwise, as a consequence of respondents’ failure
to present or submit proofs of payment, complainants’ claim
of underpayment and non-payment of money due them will
become unquestionable.

Besides, in this jurisdiction, it is settled that in cases of

money claims asserted by its employees, the burden of proof
is shifted to the employer, bearing in mind that it possesses
all the necessary pieces of evidence to prove payment of
such claims. What is required of the complainant-employee
is merely the execution of a sworn affidavit attesting to the
non-payment of the same. With the submission of herein
complainants’ Pinagsamang Sinumpaang Salaysay, they
have more than complied of what is expected of them.

As a proximate result of respondents’ unlawful acts as

clearly adverted to above, complainants suffered untold
miseries brought about by the sudden deprivation of their
only means of livelihood. They, being the bread winners of
their respective families, were brusquely denied of their
source of income. They were thrown out of the jobs they
faithfully performed because respondents had cleverly
employed a subterfuge to undermine complainants’ security
of tenure.

All the illegal and improvident acts of the respondents

discussed above, which are part and parcel of their
malevolent and anti-worker’s inclination and attitudes, were
motivated by ill-will and illicit intentions and committed with
willful and evident bad faith.

Verily, the complainants are entitled to moral damages

as provided for under Articles 2217 and 2219 in relation to
Article 21 and paragraph 6 of Article 32 of the Civil Code of
the Philippines.

22
 The foregoing provisions read as follows:

“Article 2217. Moral damages include

physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation,
wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable
of pecuniary computation, moral damages may
be recovered if they are the proximate result of
the defendant’s wrongful act or omission.”
(Emphasis supplied)

Article 2219. Moral damages may be

recovered in the following and analogous cases:

xxx

“(10) Acts and actions referred to in Articles

21, 26, 27, 28, 29, 30, 32, 34 and 35.”
(Underscoring Supplied)

Article 21. Any person who willfully causes

loss or injury to another in a manner that is
contrary to morals, good customs or public
policy shall compensate the latter for the
damage.”

“Article 32. Any public officer or employee,

or any private individual, who directly or
indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following
rights and liberties of another person shall be
liable to the latter for damages:

xxx

“(6) The right against deprivation of property

without due process of law.”

Since it is clear that the complainants are entitled to

moral damages, perforce, they are likewise entitled to
exemplary damages pursuant to Article 2229 of the Civil
Code of the Philippines which provides:

23
 “Article 2229. Exemplary or corrective damages
are imposed, by way of example or correction for
the public good, in addition to the moral,
temperate, liquidated or compensatory
damages.”

It is settled that a dismissed employee is entitled to

moral damages when the dismissal is attended by bad faith
or fraud or constitutes an act oppressive to labor, or is done
in a manner contrary to good morals, good customs or public
policy. Exemplary damages may be awarded if the dismissal
is effected in a wanton, oppressive or malevolent manner.

Unquestionably, it appears from the facts that

complainants were deliberately dismissed from the service
by reason of their union activities. This is a clear indication of
bad faith and an act oppressive to labor.

It appears from the facts that complainants were

deliberately dismissed from the service by reason of their
active involvement in the activities of KMM Katipunan-
Surgilink Enterprises and Pharmacy Chapter. Complainants’
dismissal constituted unfair labor practice. It was done to
interfere with, restrain or coerce employees in the exercise
of their right to self-organization.

In Nueva Ecija I Electric Cooperative, Inc. (NEECO

I) Employees Association, et al. v. NLRC, et al., 323
SCRA 86, the Court found it proper to award moral and
exemplary damages to illegally dismissed employees as their
dismissal was tainted with unfair labor practice. The Court
said:

“Unfair labor practices violate the

constitutional rights of workers and employees
to self-organization, are inimical to the legitimate
interests of both labor and management,
including their right to bargain collectively and
otherwise deal with each other in an atmosphere
of freedom and mutual respect; and disrupt
industrial peace and hinder the promotion of
healthy and stable labor-management
relations. As the conscience of the government,

24
 it is the Court’s sworn duty to ensure that none
trifles with labor rights.

For this reason, we find it proper in this case

to impose moral and exemplary damages on
private respondent.”

The award of moral and exemplary damages is proper

when an illegally dismissed employee had been harassed
and arbitrarily terminated by the employer, as when the
latter committed an anti-social and oppressive abuse of its
right.” (Sagum vs. CA, G.R. No. 158759, May 26, 2005).

Complainants were dismissed from their jobs by means

of a ruse deliberately designed by the respondents to
circumvent our Constitution and labor laws. Such scheme is
clearly done in bad faith. Out of necessity, therefore,
respondents must pay herein complainants moral and
exemplary damages as rightful compensations for the
latters’ undeserved sufferings.

Finally, having been compelled to engage the services

of counsel to vindicate their rights, complainants must be
further entitled to attorney’s fees equivalent to ten (10)
percent of the total judgment amount that may be awarded
herein. As the Supreme Court held in Philippine National
Construction Corporation vs. NLRC, 277 SCRA 91:

“It is settled that in actions for recovery of

wages or where an employee was forced to
litigate and, thus, incur expenses to protect his
rights and interests, the award of attorney’s fees
is legally and morally justifiable.”

PRAYER

WHEREFORE, in view of all the foregoing, it is most

respectfully prayed for that, after due consideration, a
DECISION BE RENDERED in favor of the complainants as
follows:

1. DECLARING complainants to have been DENIED

DUE PROCESS and their DISMISSAL as ILLEGAL;

25
 2. DIRECTING respondents to immediately
REINSTATE the complainants to their former positions
without loss of seniority rights and other privileges under the
law and the payment of their FULL BACKWAGES, inclusive
of allowances and other benefits or their monetary
equivalent, computed from the time their compensations
were withheld from them up to the time of their actual
reinstatement;

3. HOLDING respondents guilty of Unfair Labor

Practice for their union-busting activities;

4. HOLDING respondents SOLIDARILY LIABLE for

other monetary claims herein demanded as well as
DAMAGES in the amount of ONE HUNDRED THOUSAND
(P100,000.00) PESOS, FOR EACH COMPLAINANT, as moral
damages and TWO HUNDRED THOUSAND (P200,000.00)
PESOS, FOR EACH COMPLAINANT, as exemplary damages;
and

5. DECLARING respondents SOLIDARILY LIABLE to

reimburse complainants all THEIR litigation and other related
expenses, including attorney’s fees equivalent to ten (10%)
percent of the total monetary award.

OTHER RELIEFS deemed just and equitable under the

premises are likewise prayed for.

Quezon City, 03 September 2018.

LAWIN
(Legal Advocates for Workers’ INterest)
Counsel for the Complainants
Room 206, Jiao Building
2 Timog Avenue, Quezon City
Email address: lawin2setusfree@yahoo.com
Telefax (02) 373-18-44

26
 ERNESTO R. ARELLANO
PTR No. 5521327; 01-04-18; Quezon City
IBP No. 020231; 01-04-18; CALMANA
ROLL No. 22660
MCLE No. V-0011875; Issued 11-11-15; Until 04-14-19

JASPER C. BALBOA
PTR No. 2723758; 01-18-18; Mandaluyong City
IBP No. 025213; 01-10-18; Manila I
ROLL No. 63288
MCLE Compliance No. V-0019823
valid from 04/20/2016 until 04/14/2019

Copy furnished: by hand and

during hearing

SURGILINK ENTERPRISES AND

PHARMACY/JOYCE ANN MEDINA LOPEZ
1658 Rizal Avenue, Sta Cruz, Manila NCR
1000 and/or
1748 Rizal Avenue, Brgy. 337, Zone 034,
Sta. Cruz, Manila 1000

VERIFICATION AND CERTIFICATION AGAINST FORUM

SHOPPING

WE, IROSE T. MALUNHAO, RAYMART A. BONSATO,

FE C. EIMAN, HELEN D. DELA VEGA, ELVIE I. AGSAULIO,
RONALYN C. MANGUBAT, JEZA R. PEPITO, PILIPINA E.
BRIOL, and OMEGA N. BOLAÑOS, all of legal age,
Filipinos, and residents of Metro Manila, Philippines, after
being duly sworn, depose and say:

27
 1. That we are the Complainants in the above-
entitled case; We have caused the preparation and filing of
the foregoing Consolidated Position Paper; We have read the
contents of the same; and that we affirm the allegations
contained therein as true and correct to the best of our own
personal knowledge or based on authentic records;

2. That we have not commenced any other action or

filed any claim involving the same issues in any court,
tribunal or quasi-judicial agency and that to the best of our
own knowledge, no such other action or claim is pending in
any court, tribunal or quasi-judicial agency;

3. That if we should thereafter learn that a same or

similar action or claim has been filed or pending before any
court, tribunal or quasi-judicial agency, we will undertake to
report such fact within five (5) days therefrom to the court,
tribunal or quasi-judicial agency wherein the aforesaid
complaint or initiatory pleading has been filed.

IN WITNESS WHEREOF, we hereunto affixed our own

signatures this 03 September 2018 in Quezon City,
Philippines.

IROSE I. MALUNHAO RAYMART A. BONSATO

Nagsalaysay Nagsalaysay
Valid ID No.______________ Valid ID No._____________

FE C. EIMAN HELEN D. DELA VEGA

Nagsalaysay Nagsalaysay
Valid ID No.______________ Valid ID No._____________

ELVIE I. AGSAULIO RONALYN C.

MANGUBAT
Nagsalaysay Nagsalaysay
Valid ID No.______________ Valid ID No._____________

JEZA R. PEPITO PILIPINA E. BRIOL

Nagsalaysay Nagsalaysay
Valid ID No.______________ Valid ID No._____________

28
 OMEGA BOLAÑOS
Nagsalaysay
Valid ID No._____________

SUBSCRIBED AND SWORN to before me this 3rd day

of Septmber 2018 here in Quezon City, Philippines. Affiants
exhibited to me their respective government-issued I.D.’s
with numbers indicated above to prove and establish their
personal identities.

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2018.

29