1REPLY POSITION PAPER

FOR THE COMPLAINANT

THE COMPLAINANT x x x, by counsel, respectfully states:

1. The two (2) basic issues in this case are whether X X X was illegally dismissed and whether the respondents should
be held jointly and severally liable for tort and damages.

X x x.

2. Please note that Article 281 of the Labor Code on probationary employment (applicable to X x x) provides that “the
services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he
fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the
employee at the time of his engagement”. It further provides that “an employee who is allowed to work after a
probationary period shall be considered a regular employee”. In the employment contract of X X X, his probation
actually was 3 months. He had completed his first 3 months it without any negative action on the part of respondents.
He was allowed to proceed to another renewable (2nd phase) 3 months of probation. At this time, no formal
performance evaluation was conducted. The respondents simply dismissed him by reason of the above-mentioned two
incidents.

3. Further, it must be noted Article 282 of the Labor Code (termination by employer) provides that an “employer may
terminate an employment for:

(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;

(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 representative; and

(e) Other causes analogous to the foregoing.”

To repeat: None of the foregoing grounds applies to X X X. His subject actuations were not harmful, were without
malicious intent to injure, harm, intimidate, or threaten, or to commit sexual harassment or acts of lasciviousness or, in
any manner, to commit acts of disrespect towards his women colleagues.

4. At this point, it must be repeated, for emphasis, that X X X was not afforded the opportunity: to hire a private
lawyer (a basic human right to counsel) during the rush administrative hearing; to confront the complainants and
witnesses against him by way of cross examination; to study the documents, records, and evidence against him in the
possession of the respondents; to secure formal minutes and transcripts of the said hearing (there being none, it now
appears); and at the least, the fair time to prepare for his own defense. His human right to DUE PROCESS OF LAW was
violated. End result: A family man, with good moral character, good education and work experience, and good name and
honor has been rendered jobless, exposing his helpless wife and young children to hunger, suffering, anxieties, mental
pain, anguish, and public ridicule, all of which deserve the imposition of MORAL and EXEMPLARY DAMAGES of P500,
000.o0 each and ATTORNEY’S FEES of 10% of recoverable amounts, plus COSTS OF SUIT and LITIGATION EXPENSES.

5. X X X reiterates the jurisprudence he had earlier cited in his Position Paper in support of his arguments, to wit:

5.1. Marcial Gu-Miro v. Rolando C. Adorable, et. al., GR No. 160952, 20 August 2004, citing Asuncion v. NLRC, GR
No. 129329, 31 July 2001, 362 SCRA 56, and Dizon v. NLRC, GR No. 79554, 14 December 1989, 180 SCRA 52).
5.2. Solidbank Corporation v. CA, et. al., GR No. 151026, August 25, 2003).
5.3. Felix v. NLRC, GR No. 148256, November 17, 2004 citing Pilipinas Bank v. NLRC, 215 SCRA 750, 756 (1992), and
Quezon Electric Cooperative v. NLRC, 172 SCRA 88, 97 (1989)).
5.4. Philippine Commercial Industrial Bank v. Cabrera, GR No. 160386, March 31, 2005.
5.5. Hacienda Bino et al v. Cuenca et al, GR No. 150478, April 15, 2005
5.6. PLDT vs. NLRC and Enrique Gabriel; G.R. No. 106947; February 11, 1999.
5.7. SOLVIC INDUSTRIAL CORP. and ANTONIO C. TAM, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION
and DIOSDADO LAUZ, respondents. [G.R. No. 125548. September 25, 1998].
5.8. Melody Paulino Lopez V. NLRC, G.R. No. 125548, October 8,1999; Martinez, J.; and
5.9. CAINGAT vs. NLRC, et al, GR 154308, March 10, 2005

6. The Civil Code provides when a person may be held liable for DAMAGES arising from TORT, QUASI DELICT, ABUSE
OF RIGHT, MALICIOUS PROSECUTION, and other unjust, unfair and abusive acts that injure one’s constitutional and
statutory rights as a person, citizen, and worker, to wit:

Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended
right and justice to prevail.

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter
for the same.

Art. 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.

Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into
possession of something at the expense of the latter without just or legal ground, shall return the same to him.

Art. 23. Even when an act or event causing damage to another's property was not due to the fault or negligence of the
defendant, the latter shall be liable for indemnity if through the act or event he was benefited.

Art. 24. In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his
moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant
for his protection.

Art. 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:

X x x.

(6) The right against deprivation of property without due process of law;

X x x.

(8) The right to the equal protection of the laws;

X x x.

(16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from
being induced by a promise of immunity or reward to make such confession, except when the person confessing
becomes a State witness;

X x x.

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal
offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for
other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and
mat be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

X x x.

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter. (1902a)

Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or
omission of the defendant.

Art. 2178. The provisions of Articles 1172 to 1174 are also applicable to a quasi-delict. (n)

Art. 2179. When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the
defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be
awarded. (n)

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for
those of persons for whom one is responsible.

X x x.

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in any business or industry.

X x x.

The responsibility treated in this article shall cease when the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.

Art. 2194. The responsibility of two or more persons who are liable for quasi-delict is solidary.

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable
consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could
have reasonably been foreseen by the defendant.

Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be
recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses
to protect his interest;

X x x.

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just and
demandable claim;

X x x.

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation and employer's liability laws;

X x x.

(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should
be recovered.
In all cases, the attorney's fees and expenses of litigation must be reasonable.

Art. 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 for omission.

Art. 2219. Moral damages may be recovered in the following and analogous cases:

X x x.

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

X x x.

Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that,
under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the
defendant acted fraudulently or in bad faith.

Art. 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.

Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence.

Art. 2232. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner.

Art. 2233. Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they
should be adjudicated.

Art. 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled
to moral, temperate or compensatory damages before the court may consider the question of whether or not
exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is
necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the
question of granting exemplary in addition to the liquidated damages, the plaintiff must show that he would be entitled
to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages.
7. ABUSE OF RIGHT as a legal doctrine was dissected in the case of NIKKO HOTEL MANILA GARDEN, et al, vs. REYES,
GR 154259, February 28, 2005, where, inter alia, Articles 19 and 21 of the Civil Code were invoked. Although the hotel
was not held liable for damages, the Court took the case as an opportunity to make an extensive discussion of the
concept of ABUSE OF RIGHT, which X X X hereby adopts in this case in support of his legal theory, thus:

X x x.

Article 19, known to contain what is commonly referred to as the principle of abuse of rights,[59] is not a panacea for all
human hurts and social grievances. Article 19 states:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.

Elsewhere, we explained that when “a right is exercised in a manner which does not conform with the norms enshrined
in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be
responsible.”[60] The object of this article, therefore, is to set certain standards which must be observed not only in the
exercise of one’s rights but also in the performance of one’s duties.[61] These standards are the following: act with
justice, give everyone his due and observe honesty and good faith.[62] Its antithesis, necessarily, is any act evincing bad
faith or intent to injure. Its elements are the following: (1) There is a legal right or duty; (2) which is exercised in bad
faith; (3) for the sole intent of prejudicing or injuring another.[63] When Article 19 is violated, an action for damages is
proper under Articles 20 or 21 of the Civil Code. Article 20 pertains to damages arising from a violation of law [64] which
does not obtain herein as Ms. Lim was perfectly within her right to ask Mr. Reyes to leave. Article 21, on the other hand,
states:

Art. 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 21[65] refers to acts contra bonus mores and has the following elements: (1) There is an act which is legal; (2)
but which is contrary to morals, good custom, public order, or public policy; and (3) it is done with intent to injure.[66]

A common theme runs through Articles 19 and 21,[67] and that is, the act complained of must be intentional.[68]

X x x.

Notes (laws and cases cited above):

[47] E.L. Pineda, Torts and Damages Annotated, p. 52 (2004 ed).

[48] Garciano v. Court of Appeals, G.R. No. 96126, 10 August 1992, 212 SCRA 436, 440.
[49] cf. Servicewide Specialists, Inc. v. Intermediate Appellate Court, G.R. No. 74553, 08 June 1989, 174 SCRA 80,
88.
[50] Sangco, Torts and Damages Vol.1 , pp. 83-84.
[51] Floro v. Llenado, G.R. No. 75723, 02 June 1995, 244 SCRA 713, 720.
[58] Article 2180, Civil Code.
[59] Globe-Mackay Cable and Radio Corp. v. Court of Appeals, G.R. No. 81262, 25 August 1989, 176 SCRA 779,
783.
[60] Albenson Enterprises Corp. v. Court of Appeals, G.R. No. 88694, 11 January 1993, 217 SCRA 16, 25.
[64] Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify
the latter for the same. See Globe Mackay, supra, note 61 at 784.
[72] Art. 2234, Civil Code.

8. Respondents cited the case of MERCURY DRUG CORPORATION vs. NATIONAL LABOR RELATIONS COMMISSION,
NLRC SHERIFF and CESAR E. LADISLA, G.R. No. 75662 September 15, 1989, but it is not applicable in this case. In the said
case, the private respondent Cesar E. Ladisla was employed by petitioner Mercury Drug Corporation as a Stock Analyst at
its Claro M. Recto Branch. He had been with the company for two years and nine months. On August 15, 1977 he was
“apprehended by representatives of Mercury Drug while in the act of pilfering company property consisting of three (3)
bottles of Persantin and one (1) bottle of Valoron at 100 tablets per bottle with a total value of P272.00”. He “admitted
his guilt” to the investigating representatives of petitioner company and “executed a handwritten admission”. Said
“admission was repeated verbally at the police station” before the arresting officer as shown in the Booking Sheet and
Arrest Report which was signed and authenticated by Ladisla. On August 19, 1977, petitioner, while simultaneously
placing private respondent on “preventive suspension”, filed before the Department of Labor an application for the
termination of private respondent's employment on grounds of “dishonesty and breach of trust”. All of the foregoing
facts do not apply in the present case. X X X was and is not being charged for DISHONESTY, THEFT, BREACH OF TRUST
AND CONFIDENCE and the like. He did not make any CONFESSION of criminal guilt.

9. Respondent cited the case of MERALCO VS. NLRC, GR 78763, JULY 12, 1989, 175 SCRA 277. Again this case is not
applicable to X X X. In the said case the facts were as follows: Private respondent Signo was employed in petitioner
company as supervisor-leadman since January 1963 up to the time when his services were terminated on May 18, 1983.
In 1981, a certain Fernando de Lara filed an application with the petitioner company for electrical services at his
residence at Peñafrancia Subdivision, Marcos Highway, Antipolo, Rizal. Private respondent Signo facilitated the
processing of the said application as well as the required documentation for said application at the Municipality of
Antipolo, Rizal. In consideration thereof, private respondent received from Fernando de Lara the amount of P7,000.00.
Signo thereafter filed the application for electric services with the Power Sales Division of the company. It was
established that the area where the residence of de Lara was located is not yet within the serviceable point of Meralco,
because the place was beyond the 30-meter distance from the nearest existing Meralco facilities. In order to expedite
the electrical connections at de Lara's residence, certain employees of the company, including respondent Signo, made it
appear in the application that the sari-sari store at the corner of Marcos Highway, an entrance to the subdivision, is
applicant de Lara's establishment, which, in reality is not owned by the latter. As a result of this scheme, the electrical
connections to de Lara's residence were installed and made possible. However, due to the fault of the Power Sales
Division of petitioner company, Fernando de Lara was not billed for more than a year. Petitioner company conducted an
investigation of the matter and found respondent Signo responsible for the said irregularities in the installation. Thus,
the services of the latter were terminated on May 18, 1983. On August 10 1983, respondent Signo filed a complaint for
illegal dismissal, unpaid wages, and separation pay.

In fact, MERALCO lost in the abovecited case. Applying the doctrine of COMPASSIONATE JUSTICE IN LABOR AND SOCIAL
LEGISLATION, the Court ruled in favor of the worker who was unjustly dismissed. Thus:

X x x.

This Court has held time and again, in a number of decisions, that notwithstanding the existence of a valid cause for
dismissal, such as breach of trust by an employee, nevertheless, dismissal should not be imposed, as it is too severe a
penalty if the latter has been employed for a considerable length of time in the service of his employer. (Itogon-Suyoc
Mines, Inc. v. NLRC, et al., G.R. No. L- 54280, September 30,1982,117 SCRA 523; Meracap v. International Ceramics
Manufacturing Co., Inc., et al., G.R. Nos. L-48235-36, July 30,1979, 92 SCRA 412; Sampang v. Inciong, G.R. No. 50992,
June 19,1985,137 SCRA 56; De Leon v. NLRC, G.R. No. L-52056, October 30,1980, 100 SCRA 691; Philippine Airlines, Inc.
v. PALEA, G.R. No. L-24626, June 28, 1974, 57 SCRA 489).

In a similar case, this Court ruled:

As repeatedly been held by this Court, an employer cannot legally be compelled to continue with the employment of a
person who admittedly was guilty of breach of trust towards his employer and whose continuance in the service of the
latter is patently inimical to its interest. The law in protecting the rights of the laborers, authorized neither oppression
nor self- destruction of the employer.

However, taking into account private respondent's 'twenty-three (23) years of service which undisputedly is
unblemished by any previous derogatory record' as found by the respondent Commission itself, and since he has been
under preventive suspension during the pendency of this case, in the absence of a showing that the continued
employment of private respondent would result in petitioner's oppression or self-destruction, We are of the considered
view that his dismissal is a drastic punishment. ... .

xxx xxx xxx

The ends of social and compassionate justice would therefore be served if private respondent is reinstated but without
backwages in view of petitioner's obvious good faith. (Itogon- Suyoc Mines, Inc. v. NLRC, et al., 11 7 SCRA 528)
Further, in carrying out and interpreting the Labor Code's provisions and its implementing regulations, the workingman's
welfare should be the primordial and paramount consideration. This kind of interpretation gives meaning and substance
to the liberal and compassionate spirit of the law as provided for in Article 4 of the New Labor Code which states that
"all doubts in the implementation and interpretation of the provisions of the Labor Code including its implementing
rules and regulations shall be resolved in favor of labor" (Abella v. NLRC, G.R. No. 71812, July 30,1987,152 SCRA 140).

In view of the foregoing, reinstatement of respondent Signo is proper in the instant case, but without the award of
backwages, considering the good faith of the employer in dismissing the respondent.

X x x.

10. Respondents cited the case of ABBOTT LABORATORIES (PHILIPPINES), INC., and JAIME C. VICTA vs. NATIONAL
LABOR RELATIONS COMMISISON and ALBERT BOBADILLA, G.R. No. 76959 October 12, 1987. Again the facts of the said
case are not applicable to X X X. It involved the legal issue of UNJUST TRANSFER of a worker which the latter contested
as being tantamount to a DEMOTION. In that case, complainant Bobadilla started his employment with respondent
company sometime in May 1982. After undergoing training, in September, 1982, competent was designated
professional medical representative (PMR) and was assigned to cover the sales territory comprising of Sta. Cruz, Binondo
and a part of Quiapo and Divisoria, of the Metro Manila district. In connection with the respondent company's
marketing and sales operations, it had been its policy and established practice of undertaking employment movements
and/or reassignments from one territorial area to another as the exigencies of its operations require and to hire only
applicant salesmen, including professional medical representatives (PMRs) who were willing to take provincial
assignments, at least insofar as male applicants were concerned. Likewise, respondent company had made
reassignments or transfers of sales personnel which included PMRs from one territorial area of responsibility to another
on a more or less regular basis. In complainant's application for employment with respondent company, he agreed to
the following: 1) that if employed he win accept assignment in the provinces and/or cities anywhere in the Philippines;
2) he is willing and can move into and live in the territory assigned to him; and (3) that should any answer or statement
in his application for employment be found false or incorrect, he will be subject to immediate dismissal, if then
employed. On 22 July 1983, respondent Victa called complainant to his office and informed the latter that he was being
transferred effective 1 August 1983 to the newly opened Cagayan territory comprising the provinces of Cagayan, Nueva
Vizcaya and Isabela. The transfer order was made formal in a memorandum dated 29 July 1983. Among the reasons
given for complainant's selection as PMR for the Cagayan territory were: The territory required a veteran and seasoned
PMR who could operate immediately with minimum training and supervision. Likewise, a PMR who can immediately
exploit the vast business potential of the area. In a letter dated 1 August 1983, which was received by Abbott on 4
August 1983, competent, thru his lawyer, objected to the transfer on the grounds that it was not only a demotion but
also personal and punitive in nature without basis legally and factually. On 8 August 1983, Victa issued another inter-
office correspondence to competent, giving the latter up to 15 August 1983 within which to comply with the transfer
order, otherwise his would be dropped from the payroll for having abandoned his job. When competent failed to report
to his new assignment, Abbott assigned thereat Fausto Antonio T. Tibi another PED PMR who was priorly covering the
provinces of Nueva Ecija and Tarlac. Meanwhile, complainant filed applications for vacation leave from 2 to 9 August
1983, and then from 10 to 13 August 1983. And on 18 August 1983, he filed the present complaint. After due
consideration of the evidence adduced by the parties, the Arbiter below ruled for the respondent on the ground that the
complainant is guilty of gross insubordination.

11. Respondents cited the case of FEDERICO NUEZ vs. NATIONAL LABOR RELATIONS COMMISSION, LABOR ARBITER
MANUEL ASUNCION, PHILIPPINE OVERSEAS TELECOMMUNICATIONS CORPORATION (PHILCOMSAT), HONORIO
POBLADOR, RAMON NIETO, FRED AUJERO and ROMEO VALENCIA, G.R. No. 107574 December 28, 1994. Again this case
is not applicable to X X X. In the said case, petitioner Nuez was a driver of private respondent PHILCOMSAT since 1 May
1970. On 25 November 1988 he was assigned to its station in Baras, Antipolo, Rizal, from seven-thirty in the morning to
three-thirty in the afternoon. At one-thirty that afternoon, Engr. Jeremias Sevilla, the officer in charge and the highest
ranking official of the station, asked Nuez to drive the employees to the Makati head office to collect their profit shares.
Nuez declined saying that he had an important personal appointment right after office hours. At two-thirty that same
afternoon, he also declined a similar order given on the phone by his vehicle supervisor, Pedro Sibal, reasoning that
"Ayaw kong magmaneho dahil may bibilhin ako sa Lagundi. Kung gusto mo yong 'loyalist' ang magmaneho." In his
memorandum of 28 November 1988, Station Manager Ramon Bisuna required Nuez to explain within seventy-two hours
why he should not be administratively dealt with for disobeying an order of their most senior officer on 25 November
1988. In his written reply dated 1 December 1988, Nuez mentioned a personal appointment in justification for his refusal
to render "overtime" service and that "ferrying employees . . . was not a kind of emergency that . . . warrants (the)
charge of disobedience." Taking into consideration the reports of Engr. Sevilla and Supervisor Sibal as well as the letter
of petitioner Nuez, AVP for Transport and Maintenance Fredelino Aujero referred the matter to Vice President for
Administration Ramon V. Nieto for appropriate action and invited his attention to the Code of Disciplinary Action of the
company providing that "refusal to obey any lawful order or instruction of a superior is classified as insubordination, an
extremely serious offense and its first infraction calls for dismissal of the erring employee." The report of Aujero pointed
out that Nuez could have obeyed the directive and still have enough time to attend to his appointment because the
order was given him two hours before his tour of duty ended and, moreover, he was seen playing billiards after office
hours. Vice President Nieto then issued a memorandum to Nuez terminating his employment effective 26 December
1988 for insubordination. In his letter for reconsideration dated 1 January 1989, Nuez explained to Vice President Nieto
that after failing to get a ride to Lagundi, he went with the company coaster at four-thirty in the afternoon and then
proceeded to TMC to play billiards when the person he wanted to see at Lagundi had already left. On 6 March 1989,
Nuez filed this suit for illegal dismissal, indemnity pay, moral and exemplary damages and attorney's fees. On 29 January
1990, Labor Arbiter Manuel P. Asuncion dismissed the complaint for lack of merit but awarded Nuez a "monetary
consideration" in an amount equivalent to his one-half month salary for every year of service. On appeal, the National
Labor Relations Commission affirmed on 15 June 1992 the decision of the Labor Arbiter but limited the financial
assistance to Nuez in an amount equivalent to three months basic pay only.

12. As to the issue of PERSONAL LIABILITY for damages of CORPORATE OFFICERS in illegal dismissal cases, although the
case of M+W ZANDER PHILIPPINES, INC. and ROLF WILTSCHEK vs. TRINIDAD M. ENRIQUEZ, G.R. No. 169173, June 5,
2009, which cited the case of EPG Construction Company, Inc., et al. v. Court of Appeals, et al., G.R. No. 103372, June 22,
1992 (also cited by respondents in their position paper, pp. 26, et, seq.), held that the general manager of a corporation
should not be made personally answerable for the payment of an illegally dismissed employee's monetary claims arising
from the dismissal because the employer corporation has a separate and distinct personality from its officers who
merely act as its agents, it cited a clear EXCEPTION, that is, where the official "had acted maliciously or in bad faith," in
which event he may be made personally liable for his own act. X X X submits that, in this case, respondents acted on bad
faith and with malice when they ABUSED their right to discipline X X X; when they relied on flimsy grounds (NOT GROSS
OR HABITUAL OR SERIOUS OR GRAVE violations as provided by the Art. 282 of the Labor Code) to dismiss him; when
they RUSHED, RAILROADED and MANIPULATED the sole administrative hearing without informing X x x of his human
right to counsel (while two lawyers represented the respondent Company and its prosecuting corporate officers); when
they and their agents did not grant X x x the fair opportunity to confront the complainants and witnesses against him;
when they did not give him advance copies of the alleged complaints and other documentary evidence against him
before the administrative hearing (Note: The respondents, thru their lawyer, gave copies of the 201 File and the
Administrative Case Record of X x x only when this case had been filed with the NLRC and only upon motion in open
court and reiterated in writing made by counsel for X x x); when X x x’ termination date was made effective on the very
day of receipt by him of the notice of dismissal (February 2, 2012); when the president X X Xdid not sign the notice of
dismissal, contrary to the company’s code of discipline/conduct; when X X Xand X X X did not attend the sole
administrative hearing and thus had no personal knowledge of the facts and exhibits adduced in evidence during such
hearing and yet they signed and/or affirmed the notice of dismissal and rejected X X X’ appeal to X x xas if they
personally knew the entire case record and proceedings.

RESPONDENTS must be made to pay for the MENTAL ANGUISH, EXTREME ANXIETIES, SLEEPLESS NIGHTS, BESMIRCHED
REPUTATION, AND PUBLIC RIDICULE that X x x has suffered and continues to suffer by reason of the abusive act of
respondents in unjustly dismissing him from the service, which act has jeopardized his ability to financially support his
two young children and his wife and to pay for his financial obligations to his creditors. Yes, they may be prominent
stockholders and well-paid officers of a huge corporation as X x x Global City, Inc., occupying top positions in their own
little kingdoms. But that does not give them the dictatorial right to patently and tortuously trample upon the rights of X x
x, a worker and a Filipino citizen whose rights are protected by the law or to endanger the very physical subsistence and
existence of his helpless family by unjustly dismissing him from his source of livelihood and income.

13. The case of LLORENTE vs. SANDIGANBAYAN, ET AL., EN BANC, [G.R. No. 85464. October 3, 1991] is applicable by
analogy as to the issue of the personal liability of private and public officers for acts done in bad faith, with abuse of
right, with graver abuse of discretion, and the like.
Syllabus.
X x x.

CIVIL LAW; INDEPENDENT CIVIL ACTIONS; DAMAGES FOR ACTS DONE IN BAD FAITH; CASE AT BAR. — The acts of the
petitioner were legal (that is, pursuant to procedures), as he insists in this petition, yet it does not follow, as we said,
that his acts were done in good faith. For emphasis, he had no valid reason to "go legal" all of a sudden with respect to
Mr. Curio, since he had cleared three employees who, as the Sandiganbayan found, "were all similarly circumstanced in
that they all had pending obligations when, their clearances were filed for consideration, warranting similar official
action. The Court is convinced that the petitioner had unjustly discriminated against Mr. Curio. It is no defense that the
petitioner was motivated by no ill-will (a grudge, according to the Sandiganbayan), since the facts speak for themselves.
It is no defense either that he was, after all, complying merely with legal procedures since, as we indicated, he was not
as strict with respect to the three retiring other employees. There can be no other logical conclusion that he was acting
unfairly, no more, no less, to Mr. Curio. It is the essence of Article 19 of the Civil Code, under which the petitioner was
made to pay damages, together with Article 27, that the performance of duty be done with justice and good faith. We
believe that the petitioner is liable under Article 19. The Court finds the award of P90,000.00 to be justified by Article
2202 of the Civil Code, which holds the defendant liable for all "natural and probable" damages. Hermenegildo Curio
presented evidence that as a consequence of the petitioner's refusal to clear him, he failed to land a job at the Philippine
Cotton Authority and Philippine First Marketing Authority. He also testified that a job in either office would have earned
him a salary of P2,500.00 a month, or P150,000.00 in five years. Deducting his probable expenses of reasonably about
P1,000.00 a month, or P60,000.00 in five years, the petitioner owes him a total of actual damages of P90,000.00.

X x x.

14. Further on the issue of personal liability of officers, by analogy, the case of The City of Angeles, Hon. Antonio Abad
Santos vs. CA, et al., G.R. No. 97882, Aug. 26, l996, citing Rama vs. CA, 148 SCRA 498; San Luis vs. CA, 174 SCRA 258, is
applicable. In that case, a donation of a parcel of land to the City of Angeles, Pampanga was made for the sole purpose
of using it as the site of the Angeles City Sports Center except cockfighting. Instead, a Drug Rehabilitation Center was
constructed upon approval and orders of the mayor and the members of the sangguniang panglunsod. In ordering the
demolition of the Center and the reimbursement of the public funds spent for the construction of the Center, the
Court held that it must be borne by the officials of Angeles City who ordered and directed the construction. It held
that public officials are not immune from damages in their personal capacities arising from acts done in bad faith. They
are liable in their personal capacities for whatever damages they may cause by their acts done with malice and in bad
faith or beyond the scope of their authority or jurisdiction.[citing Vidad vs. RTC Negros Oriental, Branch 42, 227 SCRA
271, M.H. Wylie vs. Rarang, 209 SCEA 357; Orocio vs. COA, 213 SCRA 109]. But such officials must be sued in their
personal capacity. In this case the public officials deliberately violated the law, and persisted in their violation,
attempted to deceive the courts by their pretended change in the use of the Center and making it a mockery of
justice. The Court held that public officials were held liable personally for damages arising from their illegal acts done
in bad faith if said officials were sued both in their official and personal capacities.

Thus held the Court, inter alia:

X x x.

This Court has time and again ruled that public officials are not immune from damages in their personal capacities
arising from acts done in bad faith. Otherwise stated, a public official may be liable for whatever damage he may have
caused by his act done with malice and in bad faith or beyond the scope of his authority or jurisdiction. (See Vidal vs.
RTC, Negros Oriental, 227 SCRA 271); Wylie vs. Rarang, 209 SCRA 357; Orocio vs. COA, 213 SCRA 109). In the instant
case, the public officials concerned deliberately violated the law and persisted in their violations, going so far as
attempting to deceive the courts by their pretended change of purpose and usage for the center, and making a
mockery of the judicial system." Indisputably, said public officials acted beyond the scope of their authority and
jurisdiction and with evident bad faith. However, as noted by the trial court, the petitioners mayor and members of the
Sangguniang Panlungsod of Angeles City were sued only in their official capacities, hence, they could not be held
personally liable without first giving them their day in court. Prevailing jurisprudence Roma vs. CA, 148 SCRA 496; San
Luis cs. CA, 174 SCRA 258) holding that public officials are personally liable for damages arising from illegal acts done
in bad faith are premised on said officials having been sued both in their official and personal capacities.
After due consideration of the circumstances, we believe that the fairest and most equitable solution is to have the
City of Angeles, donee of the subject open space and, ostensibly, the main beneficiary of the construction and
operation of the proposed drug rehabilitation center, undertake the demolition and removal of said center, and if
feasible, recover the cost thereof from the city officials concerned. (The City of Angeles vs. CA, et. al., G. R. No. 97882,
Aug. 28, 1996).

RELIEF

WHEREFORE, premises considered, it is respectfully prayed that the respondents, jointly and severally, be found guilty
and liable for the ILLEGAL DISMISSAL of the complainant, with the concomitant imposition of civil awards, penalties and
damages against the said respondents, more specifically: BACKWAGES computed according to existing jurisprudence;
SEPARATION PAY as provided by existing jurisprudence, in lieu of restoration of the complainant to his former position,
considering the strained relations between the parties at present by reason of this pending case; MORAL DAMAGES in
the amount of P500,000.00; EXEMPLARY DAMAGES in the amount of P500,000.00; and ATTORNEY’S FEES equivalent to
10% of recoverable damages, and COSTS OF SUIT and LITIGATION EXPENSES.
Further, it is respectfully prayed that, pendent lite, the unquestioned/admitted receivable of the complainant from the
respondent company, in the amount of P19, 846.96, be released to him soonest for humanitarian reasons, considering
the financial difficulties that he and his family are now severely facing by reason of his abrupt termination from the
service.
Finally, the complainant respectfully prays for such and other reliefs as may be deemed just and equitable in the
premises.
Las Pinas City, April 30, 2012.

LASERNA CUEVA-MERCADER

LAW OFFICES

Counsel for Complainant

Unit 15, Star Arcade, C.V. Star Ave.
Philamlife Village, Las Pinas City 1743
Tel/Fax 8462539, 8725443

MANUEL J. LASERNA JR.

Roll No. 33640, 4/27/85
IBP Lifetime Member No. 1907
IBP Leyte Chapter
MCLE Exemption No. IV-1326, 2/3/11
PTR No. 10288207, 1/18/12, Las Pinas

VERIFICATION

I, x x x., of legal age, married, Filipino, and with postal address at x x x , under oath, depose: that I am the
complainant in the foregoing Reply Position Paper; that I caused the preparation thereof; that I have read its contents;
and that the same are true and correct of my own direct, personal knowledge.

Quezon City, April 30, 2012.

 X x x.
Affiant

SUBSCRIBED and sworn to before me in Quezon City this 30th day of April 2012, affiant showing his Driver’s
License No. x x x expiring on x x x .

Administering Labor Arbiter

CC:

Xxx
LAW OFFICES
(Atty. X x x)
Counsel for Respondents
---------------
(Personal Delivery
During the Hearing Set
On x x x at x x x)
Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration No.08
Tacloban City
MARIA TERECEL P. ARCALLANA,
Complainant,
-versus-
NLRC Case No.0409
SAN ROQUE MARKETING/MARTHA LIM
Respondents.
x----------------------------------------------------x
POSITION PAPER
FOR THE COMPLAINANT
COMPLAINANT, through counsel, to this Honorable Office, most respectfully states:
STATEMENT OF CASE
This is complaint for illegal dismissal and non-payment of one month salary, overtime
pay and holiday pay, failure to pay by the Employer of the SSS monthly contribution which
automatically deducted in their payroll, and damages filed by the complainant Maria Terecel P.
Arcallana.
STATEMENT OF FACTS
1. Respondent SAN ROQUE
Respondent SAN ROQUE MARKETING is a business establishment engagedwholesaler/retailer and distributor of rice and grocery items
province wide and principaloffice located at San Roque St., Brgy.04, Catbalogan City.

Respondent MARTHA LIM is of legal age and the owner-manager the respondentbusiness establishment

Re: COMPLAINANT Maria Terecel P. Arcallana

Complainant Maria Terecel P. Arcallana is of legal age, single, Bachelor of ElementaryEducation Graduate and of good standing in the community.
She was hired by therespondent as CHECKER in January 2011 and because of her dedication, diligence andcompetence was promoted as
CASHIER after three months of service.

On April 2011, complainant started to have a regular transaction with several banks suchas Philippine National Bank, Chinabank, BDO and
Metrobank as part and parcel of herfunction wherein the respondent employer is a depositor. Attached hereto as Annex “A”is a certified photocopy of
deposit and withdrawal slip of the banks regarding the saidtransaction.

Complainant likewise serves as disbursement officer and payroll maker since April 2011.An additional responsibilities which the respondent did not
bother to add overtime pay orwhatever incentives

Sometimes in June 2011, the hired CHECKER resigned due to personal reason.Respondent immediately assigned the tiresome load
to the complainant without anypromise of additional compensation. She thinks that it is for temporary only but until shewas illegally dismissed she
perform the functions of CHECKER

November 2011, Splash Company with its Region 8 Supervisor JOSE BAYARONGoffered her a job as Samar Product Coordinator. The new
opportunities promised a bettersalary and position that she confided to her employer MARTHA LIM her willingness toaccept the offer but willing to
serve a month to train a new comer to handle her positionin San Roque Marketing. Unknown to her, respondent called the Manila Office of
SplashCompany next day to ruin her reputation alleging that she malversed a One HundredThousand Pesos (P100,000.00) and having an extra-
marital affair with her husband,NICHOLAS LIM. The incidents result for the complainant being turned down when sheapplied for the job in the said
company in early part of December, 2011. A week aftershe was not allowed to report to work and deprived to received her one-month salary.

Jobless and devastated the complainant filed the instant complaint based on his allegedillegal termination by respondent in November 28, 2011.
ISSUEWhether or not complainant is entitled for payment of salary, holiday and overtime payand claim for damages?

ARGUMENTS AND DISCUSSIONIt is clear from the foregoing statement of facts that Complainant Arcallana was anemployee of San Roque
Marketing who with her character and capacity served theestablishment well. But even assuming arguendo, she ask the permission of
respondent to resignfrom her job nevertheless she was deprived of her right to receive her salary and to work withanother company with a reputable
name. She was denied of due process and actually being avictim of unjust treatment of workers. The baseless and malicious allegation of the
respondent tothe honor and dignity of the Complainant as a lover of her husband add to the pain andhumiliation of my client who only wish to work
and earn a decent living

In general, an illegally dismissed employee is entitled to one or more of the followingreliefs: 1. Reinstatement; 2. Payment of Backwages; 3.
Separation Pay; 4. Payment of Damages; and 5. Award of Attorney’s Fees

Under the doctrine of strained relations, the payment of separation pay has beenconsidered an acceptable alternative to
reinstatement when the latter option is no longer desirableor viable. On the one hand, such payment liberates the employee from what could be a
highlyoppressive work environment. On the other, the payment releases the employer from the grosslyunpalatable obligation of maintaining in its
employ a worker it could no longer trust. (Coca-ColaBottlers Phils. vs. De Leon, G.R. No. 156893, June 21, 2005.)A dismissed employee is entitled
to moral damages when the dismissal is attended by badfaith 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 iseffected in a wanton, oppressive or malevolent
manner (Kay Products, Inc., et al. v. Court ofAppeals, G.R. No. 162472, July 28, 2005, 464 SCRA 544)As a general rule, attorney's fees (other than
judicial costs) are not recoverable, except:a) stipulation between partiesb) when exemplary damages are awardedc) when defendant's act/omission
compelled plaintiff to litigate with 3rd persons or incur expenses to protect his interestd) malicious prosecutione) clearly unfounded civil action or
proceeding against plaintifff) defendant acted in gross & evident bad faith in refusing to satisfy plaintiff's just & demandable claimg) legal support
actionsh) recovery of wages of household helpers, laborers & skilled workersi) actions for indemnity under workmen's compensation and employer
liability lawsj) separate civil action to recover civil liability arising from crimek) when double judicial costs are awarded

WHEREFORE, It is respectfully prayed:a) That respondent be ordered to pay the complainant the sum of P6,000.00 for her onemonth salary, and
P3,000.00 for overtime pay and holiday pay.b) That respondent be ordered to pay the SSS monthly contribution from January 2011 –November
2011 as it was deducted in the salary as indicated in payroll.c) That respondent be ordered to pay the complainant the sum of P10,000.00 for
moraldamages.d) That complainant recovers of the respondent the sum of P20,000.00 for Attorney’sfees, and the cost of this suit.Catbalogan Ciy,
February 10, 2012

By:ATTY. SHERYL B. ARCALES

NOTARY PUBLICCommission Serial NO. 0829Until December 31, 2012PTR. No. 991983; Catbalogan CityRoll of Attorney No.1102IBP Lifetime
No.28

CERTIFICATION AND V E R I F I C A T I O N

I, the undersigned complainant after having been sworn to law, under oathdepose and state: THAT---I am the complainant in the above-
entitled case; I have caused thepreparation of the foregoing Position Paper; I have read and understood thecontents thereof and
the same are true based on my personal knowledge orauthentic records. I further certifies under the same oath that she had not filed a case
involvingthe same issue in any court, Tribunal or Agency; that there is no such case filed oris pending before any court , Tribunal or agency ; that if
there is case hereafterfiled or is pending before any Court , Tribunal or Agency, I undertake to reportsuch fact five (5) days therefrom to the
Honorable Court.IN WITNESS WHEREOF, I have hereunto set our hands this 15February, 2012 at Catbalogan City, Philippines.MARIA
TERECEL P. ARCALLANA SSS ID No.999-234SUBSCRIBED AND SWORN to before me this 15 February 2012 atCatbalogan City,
Philippines.ATTY. SHERYL B. ARCALESNOTARY PUBLICCommission Serial NO. 0829Until December 31, 2012PTR. No. 991983; Catbalogan
CityRoll of Attorney No.1102IBP Lifetime No.28
 In general, an illegally dismissed employee is entitled to one or more of the following reliefs:
1. Reinstatement;
2. Payment of Backwages;
3. Separation Pay;
4. Payment of Damages; and
5. Award of Attorney’s Fees.
Right to Reinstatement.
An employee who is unjustly dismissed from work is entitled to reinstatement without loss of seniority rights and other
privileges. (Article 279, Labor Code.)
Reinstatement Meaning.
Reinstatement is a relief granted to an illegally dismissed employee which restores him to the position from which he was
removed, that is, to his status quo ante dismissal. Reinstatement should be without loss of seniority rights and other
privileges.

Remedy when Reinstatement is no Longer Possible.

As a necessary consequence of the finding of illegal dismissal, the illegally dismissed employee becomes entitled to
reinstatement as a matter or right. The employer must reinstate him to the position he was holding prior to his dismissal.
Ideally, this should be the case.
However, in some instances, although the dismissal of the employee is determined to be illegal, reinstatement may no
longer possible for a number of reasons. In such case, separation pay in lieu of reinstatement may be awarded.
Following are some of the instances where payment of separation pay is allowed in lieu of reinstatement:
1. When the relationship between the employer and the employee had become strained as to preclude a
harmonious working relationship;
2. When reinstatement becomes a legal impossibility;
3. When the employee no longer wish to be reinstated;
4. When prudence and fair play so dictates; and
5. When reinstatement is not practicable due to loss of confidence.
Doctrine of “Strained Relations”  Concept.
Under the doctrine of strained relations, the payment of separation pay has been considered an acceptable alternative to
reinstatement when the latter option is no longer desirable or viable. On the one hand, such payment liberates the
employee from what could be a highly oppressive work environment. On the other, the payment releases the employer
from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust. ( Coca-Cola
Bottlers Phils. vs. De Leon, G.R. No. 156893, June 21, 2005 .)
Nevertheless, the principle of strained relations should not be used so indiscriminately as to bar the reinstatement of
illegally dismissed workers, especially when they themselves have not indicated any aversion to returning to work, as in
this case. It is only normal to expect a certain degree of antipathy and hostility to arise from a litigation between parties,
but not in every instance does such an atmosphere of antagonism exist as to adversely affect the efficiency and
productivity of the employee concerned. (Ibid.)
The doctrine of strained relations may be invoked only against employees whose positions demand trust and confidence,
or whose differences with their employer are of such nature or degree as to preclude reinstatement.
In Maranaw Hotels vs. NLRC, G.R. No. 123880, February 23, 1999 , the Court refused to apply the doctrine of
strained relations on the ground that the position of a room boy is not such a sensitive position that demands complete
trust and confidence.
Right to Backwages.
An employee who is unjustly dismissed from work shall be entitled to 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.
Backwages Meaning.
Backwages is the restitution of earnings unduly withheld from the employee because of illegal termination. It partakes the
nature of a penalty the employer has to pay for illegally dismissing an employee.

Computation of Backwages.
 Inclusive period. Full backwages is to be computed from the time compensation was withheld from the employee up to the
time of his actual reinstatement.
Base figure. The based figure to be used in the computation shall include not just the basic salary, but also regular
allowances and other benefits or their monetary equivalent, i.e., transportation, emergency living allowance, 13th-month
pay, etc.
Wage rate. The computation of backwages may be based either on the current wage rate or the wage rate at the time of
the dismissal. If current wage rate is awarded, it must be expressly stated in the decision. If not expressly stated (award is
unqualified), the wage rate at the time of the dismissal should be used. ( Paramount Vinyl vs. NLRC, G.R. No.
81200, October 17, 1990.)
Methods of Computing Backwages.
“Deduction of earnings elsewhere” rule. Under this rule, the award of backwages to an employee could be reduced by
subtracting the wages actually earned by him from employment during the period of his separation, or the wages which
he could have earned had he been diligent enough to find a job. The employer would be allowed to adduce evidence on
these matters. This rule was abandoned in Mercury drug case primarily because the deduction of evidence was found to
only delay execution process.
“Mercury Drug” rule. To remedy the delay brought about by the first rule, and to speed up execution process, the Supreme
Court in Mercury Drug case, 1974, adopted the policy of granting to employee backwages for a maximum period of three
years without qualification and deduction.
Method used under RA 6715. With the passage of RA 6715, both the rules above were abandoned. The rule now is that the
employees are entitled to full backwages without deduction or qualification.

Illegal Dismissal without Backwages.

As a general rule, an employee who is dismissed due to the unlawful act of the employer or to the latter’s bad faith is
entitled to backwages as a matter of right, backwages being a direct and necessary consequence of finding of illegal
dismissal.
However, there are instances where despite illegal dismissal, the illegally dismissed employee is not entitled to backwages.
This happens in cases where good faith is evident on the part of the employer in dismissing the employee, i.e., there is just
cause to dismiss employee, but the dismissal is found by the court to be too harsh a penalty.

Effect of Failure to Claim Backwages.

The award of backwages resulting from illegal dismissal of employee is a substantive right. Thus, it has been held that the
employee does not forfeit his right to claim backwages even if he failed to claim for the same in his complaint.
Separation Pay.
As stated above, separation pay is the relief awarded to employee when reinstatement is no longer feasible or practicable,
or when reinstatement is no longer desirable or will not serve the best interest of the parties.
Amount of Separation Pay: Formula.
The amount of separation pay in lieu of reinstatement is not fixed by the Labor Code. But the trend in recent cases is to
compute the same using the formula – one month pay, or one month pay per year of service. (This formula was used in
the 2005 case P. J. Lhuillier vs. NLRC.)
In other older cases, the court used one half month pay per year of service.
Cases
1. Separation pay and backwages are distinct and separate from each other. A Labor Arbiter cannot order that the
separation pay be deducted from the backwages. (Solis vs. NLRC, G.R. No. 116175, October 28, 1996 .)
2. The NLRC reverses the decision of the Labor Arbiter and ordered the employees’ reinstatement, but failed to
award backwages. On appeal filed by the employer, the Court of Appeals (CA) awarded backwages although the employee
did not appeal the decision. The Supreme Court ruled that the award made by the CA is proper. Backwages is a mere
consequence of finding of illegal dismissal. (St. Michael’s Institute vs. Santos, G.R. No. 145280, December 4,
2001.)
3. Backwages was not granted to the employee because the employer was in good faith when it dismissed the
employee who received P7,000.00 from an applicant for illegal installation of power line. ( Meralco vs. NLRC, G.R. No.
78763, July 12,1989.)
Last Edited:  Sunday, March 20, 2011
Caveat: Subsequent court and administrative rulings, or changes to, or repeal of, laws, rules and regulations may have
rendered the whole or part of this article inaccurate or obsolete.

Writing Position Papers

Write a position paper to
 Organize and outline your viewpoint on an issue
 Formally inform others of your position
as a foundation to build resolution to difficult problems
 Present a unique, though biased, solution
or a unique approach to solving a problem
 Frame the discussion in order to define the "playing field."
This can put you in an advantageous position with those who may not be so well prepared as regards the
issues behind their positions
 Establish your credibility
Here you are demonstrating that you have a command of the issues and the research behind them, and can
present them clearly
 Let your passion be demonstrated in the force of your argument
rather than in the use of emotional terms
 Guide you in being consistent in maintaining your position in negotiation
The better prepared you are
the more disadvantaged are your opponents and more likely they will defer to you
Guidelines:
 Format should be consistent with guidelines determined by the sponsoring organization or committee
 Include topic, date, purpose, etc., and should readily identify you as the author
 If the paper represents a group, organization, committee, do not write in the first person (not I, my, mine,
etc. but rather we, our, etc.)
 Limit yourself to two pages following the format established by previous successful position papers
Research:
 Develop supporting evidence for both sides
including factual knowledge, statistical evidence, authoritative testimony
 Identify the issues and prejudices keeping in mind your audience
List these as appropriate and anticipate counterclaims
 Assume familiarity with basic concepts 
but define unfamiliar terms/concepts or state meanings that define your point of departure
 Refer to those who agree with your position to assist you in developing your argument
 Familiarize yourself with those who disagree with you to prepare your defense.
Summarize their argument and evidence, then refute
Introduction:
Consider your audience: 
start with a topic sentence or two that attracts attention and summarizes the issue
Inform the reader of your point of view
Development:
Focus on three main points to develop
Each topic is developed with
 a general statement of the position
 an elaboration that references documents and source data
 past experiences and authoritative testimony
 conclusion restating the position
Establish flow from paragraph to paragraph
 Keep your voice active
 Quote sources to establish authority
 Stay focused on your point of view throughout the essay
 Focus on logical arguments
 Don't lapse into summary
in the development--wait for the conclusion
Conclusion
 Summarize, then conclude, your argument
  Refer to the first paragraph/opening statements
as well as the main points
 does the conclusion restate the main ideas?
 reflect the succession and importance of the arguments
 logically conclude their development?
Share a draft with others
to better develop the paper and ensure that your argument is clear
Revise, spell-check, and succeed in building your case.

Requirements of Procedural Due Processs.

For valid termination based on authorized causes such as installation of labor-saving devices, redundancy, retrenchment to prevent losses, and
closure or cessation of operation, the employer must serve written notice to the individual employee concerned and to the appropriate Regional
Office of DOLE at least 30 days before the effectivity of the termination.
Also, the employer must observe the following requirements as part of the process of termination:
Good faith in the termination of employee, i.e., the implementation of the company program resulting to termination of employees must be for a valid
cause and not merely a tool to circumvent the law on employee’s security of tenure;
The employer must adopt a fair and reasonable criteria in the selection of employee to be dismissed; and,
The employee must be paid separation pay not less than the amount fixed by law.
Criteria in Selection of Employee to be Dismissed.
In the selection of the employee to be dismissed, the employer must adopt of a fair and reasonable criteria which must be applied in good faith, such
as:
Less preferred status of employee;
Efficiency rating; and
Seniority.
Payment of Separation Pay.
In termination of employment due to authorized causes, the employer is required to give separation pay to the employee concerned. The amount of
separation pay depends on the specified cause of termination.
In case of termination due to the installation of labor-saving devices or redundancy – at least one month pay or to at least one month pay for every
year of service, whichever is higher.
In case of (a) retrenchment to prevent losses and (b) closures not due to serious financial reverses – one month pay or at least one-half month pay
for every year of service, whichever is higher.
No separation pay for closure due to serious business losses.
No separation pay is required when the closure of business is due to serious business losses or financial reverses. (North Davao Mining, 1996.)
When closure of the business establishment is forced upon the employer and ultimately for the benefit of the employees. The closure contemplated
under Article 283 of the Labor Code is a unilateral and voluntary act on the part of the employer to close the business establishment. (National
Federation of Labor vs. NLRC, 2000.)
Effects of Termination.
If the termination is for authorized cause and the employee is given 30-day prior notice, the dismissal is valid.
If the termination is for authorized cause but the employee was not given 30-day prior notice, the dismissal is valid but the employer may be ordered
to pay nominal damages to dismissed employee. In Jaka Food Processing vs. Pacot, 2005, the amount of nominal damages is P50,000.00.
If the dismissal is not for a valid authorized cause, the dismissal is illegal, whether or not there is 30-day prior notice. Consequently the employee
shall be entitled to reinstatement and backwages, and damages if warranted.
Last Edited: Sunday, March 20, 2011
Caveat: Subsequent court and administrative rulings, or changes to, or repeal of, laws, rules and regulations may have rendered the whole or part of
this article inaccurate or obsolete.

Retrenchment Concept
Retrenchment is an economic ground to reduce the number of employees. It 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 (See Alabang
Country Club vs. NLRC, G.R. No. 157611, August 9, 2005 ).
Retrenchment is sometimes also referred to as downsizing. It is aimed at saving a financially ailing business establishment
from eventually collapsing.
Basic Requisites of Valid Retrenchment
To justify retrenchment, the following requisites must be complied with:
1. The retrenchment must be necessary to prevent business losses; and
2. The business losses sought to be prevented are serious, actual and real.
Meaning of “To Prevent Losses”
The phrase “to prevent losses” means that retrenchment is authorized to be undertaken by the employer sometime before
the losses anticipated are actually sustained or realized. Actual losses need not set in prior to retrenchment. (Lopez Sugar
Corporation vs. Federation of Free Workers, G.R. Nos. 75700-01, August 30, 1990.)
 Meaning of “Serious, Actual and Real”
In order to be justified, the termination of employment by reason of retrenchment must be due to business losses or
reverses which are serious, actual and real.
Not every loss incurred or expected to be incurred by the employer will justify retrenchment, since, in the nature of things,
the possibility of incurring losses is constantly present, in greater or lesser degree, in carrying on the business operations.
(See Edge Apparel Inc. vs. NLRC, G.R. No. 121314, February 12, 1998 .)
The following are the general standards to determine whether the business losses sought to be prevented are serious,
actual and real, and sufficient to justify retrenchment of employees:
1. The losses expected should be substantial and not merely de minimis in extent;
2. The losses apprehended must be reasonably imminent;
3. The alleged losses if already realized, and the expected imminent losses sought to be forestalled, must be proven
by sufficient and convincing evidence. (See Lopez Sugar Corporation case.)
Separation Pay
In case of retrenchment to prevent losses, the separation pay shall be equivalent to one month pay or at least one-half
month pay for every year of service, whichever is higher. A fraction of at least six months shall be considered one whole
year. (Article 283, LC.)
Temporary Retrenchment or Lay-Off
Article 283 of the Labor Code of the Philippines speaks only of permanent retrenchment or lay-off. There is no specific
provision in the Labor Code that governs temporary retrenchment, particularly the requisites for its implementation and
maximum duration.
To remedy this situation, the Court has applied by analogy Art. 286 to set a specific period that employees may remain
temporarily laid, or, sometimes referred to as in floating status. (See Sebuguero vs. NLRC, G.R. No. 115394 September 27,
1995.) Article 286 provides:
Article 286. When employment not deemed terminated. The bonafide suspension of the operation of a business or
undertaking for a period not exceeding six months, or the fulfillment by the employee of a military or civic duty shall not
terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of
seniority rights if he indicates his desire to resume his work not later than one month from the resumption of operations
of his employer or from his relief from the military or civic duty.

Applying the above provision in the case of temporary retrenchment, an employee who has been temporarily laid-off
should be recalled or otherwise permanently retrenched after the lapse of six months. Failing this would be tantamount to
illegal dismissal.
Last Edited:  Friday, August 19, 2011
Caveat: Subsequent court and administrative rulings, or changes to, or repeal of, laws, rules and regulations may have
rendered the whole or part of this article inaccurate or obsolete.

Summary
 What is separation pay?
 What are the instances in which payment of separation pay is sanctioned?
 Distinguished separation pay from retirement pay?
Separation Pay Meaning
Separation pay, as generally understood, refers to the amount due to the employee who has been terminated from service
for causes authorized by law (not due to employees fault or wrong-doing) such as installation of labor-saving
devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or
undertaking.
Separation pay is intended to provide the employee with the wherewithal during the period he is looking for another
employment. (See Gabuay v. Oversea Paper Supply, G.R. No. 148837, August 13, 2004.)
Five Instances when Separation Pay is due to Employee
There are at least five instances in which an employee is entitled to payment of separation pay upon severance of
employment:
1. When the termination of employment is due to causes authorized by law, such as installation of labor-saving
devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or
undertaking. This is provided under Art. 283, Labor Code of the Philippines. The provision states, viz.:
 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 Department 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 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.

2. When the severance of employment is cause by a disease, particularly when the employee is found to be suffering
from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as the health
of his co-employees. This is found in Art. 284, ibid., the full text states, viz.:
Article 284. Disease as ground for termination.  An employer may terminate the services of an employee who has been
found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his
health as well as the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one month
salary or to one-half month salary for every year of service, whichever is greater, a fraction of at least six months being
considered as one whole year.

3. 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). (See Gabuay v. Oversea Paper Supply, G.R. No. 148837, August 13, 2004.)
4. In case of pre-termination of employment contract in job-contracting arrangement. (See Department Order 18-02,
Rules Implementing Article 106 to 109 of the Labor Code.)
5. In exceptional cases, where separation pay is awarded as a measure of social or compassionate justice. Here,
payment of separation pay may be ordered by the court even if the dismissal from service is found to have been for valid
or just cause, i.e., even if the employee is found to have been at fault. (See PLDT vs. NLRC, No. L-80609, August 23, 1988.)
Distinguished from Retirement Pay
Separation pay should not be confused with retirement pay. Separation pay is the amount due to the employee where the
cessation of employment is due to causes authorized by law (or for any of the other causes stated above). Retirement pay,
on the other hand, is the amount to be paid to the employee who has reached the compulsory retirement age or who
availed of voluntary retirement.