Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City
SHAILA ARZADON CABAGTONG,
Complainant,
-versus-

NLRC NCR CASE NO. 10-15204-12

CAF XOCOLAT INC.,

RINA AVECILLA,
MICHELLE ORTIZ,
VALERIE LOPEZ,
Respondents.
x--------------------------------------------------x

POSITION PAPER
(FOR THE COMPLAINANT)
COMPLAINANT, through counsel, and unto the Honorable Office, most
respectfully submits this Position Paper and in support thereof, avers as follows:
THE PARTIES
Complainant SHAILA ARZADON CABAGTONG. is a Filipino, of legal age,
with address at 833 Benny St., Sampaloc, Manila, where she could be served
with summons and other processes.
Respondent CAF XOCOLAT, INC. is a company organized under
Philippine Laws and engaged in the food service, with address at Unit E-1 Topys
Place, Economia St., Calle Industria, Bagumbayan, Quezon City, where it could
be served with summons, notices and other court processes.
Private respondents RINA AVECILLA, MICHELLE ORTIZ and VALERIE
LOPEZ are Filipinos, both of legal age, and are the owners and/or managers of
the respondent company, with office address as that of respondent entity.
STATEMENT OF FACTS
Complainant CABAGTONG is a REGULAR employee of respondent Caf
Xocolat as evidenced by his Identification (ID) Card duly issued to her by the
respondents, a copy of which is hereto attached as ANNEX A and made an
integral part hereof. She was hired by the respondents on July 31, 2006 with the
position of Barista and Food Prep.
The complainant has faithfully carried out all her duties with the
respondents herein and was promoted to Officer-in-Charge sometime in 2010 in
view of her exemplary performance and diligence. However, in spite of these,
she was illegally dismissed from service by the respondents on March 28, 2012,
without any fault on her part and without due process of law. Thus, complainant
has faithfully and dutifully served the respondents for almost SIX (6) YEARS.
The complainant was last assigned to one of the branches of the
respondent company located along Katipunan, Loyola Heights, Quezon City.
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According to the complainant, on March 14, 2012, she left the caf at
around 10:00 p.m. after finishing her shift. Still left inside the caf premises were
her co-employees Erwin Comia, Jennifer Marbella, Adrian Anonuevo, Mr. Jomar
and Riza Santillan. Erwin and Jen were the cashiers at that time and were
tasked to safeguard the sales for that day amounting to around P29,000 for
deposit tomorrow. The money was usually placed inside the cabinet secured by
a lock for safekeeping located inside the caf. The caf opens at 7:00 am and
closes at around 12:00 in the midnight.
At 7:00 a.m. of the next day (March 15, 2012), the caf opened and was
staffed by the following employees of the OPENING SHIFT, namely cashier
Analyn Baldomar, chef Roland and chef Rod who were assigned in the kitchen;
and, Mr. Hilario, Mr. Lawrence and manager Marlon Guevarra who were detailed
at the commissary. All employees were inside the caf and have free and
unhindered access to any part thereof.
When the complainant reported back for work together with cashiers Erwin
and Jen for the CLOSING SHIFT and opened the locked cabinet containing the
said P29,000 at around 3:00 p.m., they were surprised to find out that the money
was already missing. Complainant and her co-employees tried to look for the
money inside the premises but the same could no longer be found. Thereafter,
Marlon Guevarra, one of the managers in the caf, reported the incident to
respondent owners.
That evening, respondents RINA AVECILLA, MICHELLE ORTIZ and
VALERIE LOPEZ came to the caf and interviewed the complainant and her coemployees about the incident.
The following day (March 16, 2012), the complainant and some of her coemployees were brought to the offices of the Criminal Investigation Detection
Group (CIDG) where each of them was investigated by the police regarding the
incident. According to the police based on their initial findings, the said lock used
in the cabinet can be EASILY opened even without the use of a key.
Thereafter, from March 17 to 27, 2012, the complainant and her coemployees CONTINUED their work and performed their assigned duties with the
respondents at the said caf.
On March 28, 2012, the complainant and Erwin, one of the cashiers of the
respondent caf, were ordered to report to the head office to which they
complied. Upon arriving there, respondents Rina Avecilla and Valerie Lopez
VERBALLY told the complainant herein that she was already being DISMISSED
from work, EFFECTIVE IMMEDIATELY, much to her surprise. She was likewise
ordered by the said respondents to submit a voluntary resignation letter so that
her clearance would be processed, to which the complainant refused to do.
Hence, this complaint for illegal dismissal. During the mandatory
mediation of the case before the Honorable Office, the respondents AFFIRM that
the complainant was indeed their employee.
THE ISSUES
VIEWED from the foregoing, the issues herein raised by complainant for
resolution by the Honorable Office are as follows:
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1.

WHETHER OR NOT THE COMPLAINANT WAS DISMISSED

ILLEGALLY BY THE RESPONDENTS

2.

WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO

HER REINSTATEMENT WITH FULL BACK WAGES AND OTHER
MONEY CLAIMS; and

3.

WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO

DAMAGES, INCLUDING ACTUAL, MORAL AND EXEMPLARY, PLUS
ATTORNEYS FEES.
ARGUMENTS AND DISCUSSION

Complainant was illegally and unjustly

dismissed without due process of law
Complainant no doubt was a REGULAR EMPLOYEE of the respondents.
She was hired as barista and food prep. by the respondents, a company
engaged in the food industry. Her work is usually necessary and desirable to
respondents principal business and trade.
Being a regular employee,
complainant is therefore entitled to SECURITY OF TENURE as enshrined in the
Constitution and protected by law.
In the case at bar, it is clear that the complainant was ILLEGALLY and
UNJUSTLY DISMISSED by the respondents, when, on March 28, 2012, she was
VERBALLY told by the respondent owners that she was being DISMISSED from
work effective immediately. NO proper notice to explain was ever given to the
complainant; NO due process was afforded to the complainant; and, NO proper
notice of termination was given to her, in complete DISREGARD of the law.
It is important to note that the complainant categorically denies having
committed any wrongdoing whatsoever. She was dismissed by the respondents
not because she was guilty of any offense, but only due to the fact that the
incident happened while she was the Officer-in-Charge of said caf. The fact
that the alleged incident happened WHILE the complainant was the Officer-incharge is not a ground for a valid dismissal under the law.
As explained by the Supreme Court in the case of JARDIN vs. NLRC
[G.R. No. 119268. February 23, 2000]:
As consistently held by this Court, termination of
employment MUST be effected in accordance with law. The just
and authorized causes for termination of employment are
enumerated under Articles 282, 283 and 284 of the Labor Code.
The requirement of notice and hearing is set-out in Article 277 (b) of
the said Code. Hence, petitioners, being employees of private
respondent, can be dismissed only for just and authorized cause,
and after affording them notice and hearing prior to termination. In
the instant case, private respondent had no valid cause to
terminate the employment of petitioners. Neither were there two (2)
written notices sent by private respondent informing each of the
petitioners that they had been dismissed from work. These lack of
valid cause and failure on the part of private respondent to comply
with the twin-notice requirement underscored the illegality
surrounding petitioners dismissal. (Emphasis ours.)
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Accordingly, when the complainant was VERBALLY dismissed from work

effective immediately and thereafter was required to submit a voluntary
resignation letter, her constitutional right to security of tenure was clearly violated
by the respondents. This was her reward after faithfully and diligently serving the
respondents for SIX (6) LONG YEARS.

Complainant is entitled
to reinstatement and full backwages
As a direct consequence of complainants unjust termination from service
without due process of law, the complainant is entitled to IMMEDIATE
REINSTATEMENT with FULL BACK WAGES and SALARIES. Back wages
represent the compensation which an employee could have earned but was not
collected because of the unjust dismissal. In general, it is granted on ground of
equity for earnings lost due to illegally effected termination.
As clearly stated under Article 279 of the Labor Code, An employee who
is unjustly dismissed from work shall be entitled to reinstatement without loss
of seniority rights and other privileges and to his full back wages inclusive of
allowance, and to his other benefits of their monetary equivalent computed from
the time his compensation was withheld from him up to the time of his actual
reinstatement.
In view of the evident bad faith,
respondents are liable for moral and
exemplary damages and attorneys fees
In illegal dismissal cases, moral and exemplary damages are awarded to
compensate the affected employee for diverse injuries such as mental anguish,
besmirched reputation, wounded feeling and social humiliation suffered as a
consequence of the termination. It is, however, not enough that such injuries
have arisen, it is essential that they have sprung from the wrongful act of the
employer in illegally dismissing herein complainant in bad faith (National Sugar
Refineries Corp. vs. NLRC, 308 SCRA 599).
In the case at bar, the respondents, without any justifiable ground and
without affording the complainant with due process, verbally dismissed the
complainant from work. On top of that, after her illegal dismissal, she was
required to submit a voluntary resignation in order to make it appear that the
complainant voluntary resigned from work, and thus, cover up the violations of
the law committed by the respondents herein. As a result of her unjust dismissal,
the complainant suffered severe mental anguish and sleepless nights on account
of the sudden loss of income to sustain her family; and also suffered besmirched
reputation and wounded feelings due to the unfounded imputation of
wrongdoings upon her by the respondents. Clearly, the respondents are in bad
faith for their wanton disregard of the law and are, therefore, liable for moral and
exemplary damages.
Finally, in the pursuit of justice, the complainant was forced to secure the
services of counsel, thereby incurring legal fees in the process. Accordingly, the
respondent should likewise be ordered to pay attorneys fees equivalent to ten
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percent of the amount of wages recovered as provided for in Art. 111 of the Labor
Code.
PRAYER
WHEREFORE, premises considered, it is respectfully prayed of this
Honorable Office to render judgment in favor of the complainant and against the
respondents, as follows:
1. To declare the dismissal of the Complainant as illegal, the same having
been effected without a just cause and without clue process;
2. To order the respondents to reinstate the complainant to her former
position without loss of seniority rights and other privileges;
3. To order the respondents solidarily liable to pay the complainant her
full back wages, inclusive of allowances and other benefits to be
computed from the time his compensation was withheld from him up to
his actual reinstatement;
4. To award the complainant moral and exemplary damages, plus
Attorneys Fees.
Other just and equitable remedies are likewise prayed for.
Quezon City, 27 November 2012

ATTY. PEARLITO B. CAMPANILLA

Suite B, 2nd floor, Overland Park Building
No. 245 Banawe cor. Quezon Ave., Quezon City.
PTR No. 6308458 02-06-12 QC
IBP No. 888279 02-03-12 Pasig City
L.M. ROLL No. 010564
ROLL No. 37522
MCLE No. III - 0015235

Copy Furnished:

CAF XOCOLAT INC.,

RINA AVECILLA, MICHELLE ORTIZ and VALERIE LOPEZ,
Unit E-1 Topys Place, Economia St., Calle Industria, Bagumbayan, Quezon City

VERIFICATION AND CERTIFICATION

I, SHAILA ARZADON CABAGTONG ., of legal age, after having been duly
sworn in accordance with law, depose and state that:
1. I am a plaintiff in the above-stated case;
2. I caused the preparation of the foregoing position paper;
3. I have read the contents thereof and the facts stated therein are true and
correct of my personal knowledge and/or on the basis of authentic documents and
records in my possession;
4. I have not commenced or filed any other action or proceeding involving the
same issues in the Supreme Court, the Court of Appeals, or any other tribunal or
agency;
5. To the best of my knowledge and belief, no such action or proceeding is
pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency;
6. If I should thereafter learn that a similar action or proceeding has been filed or
is pending before the Supreme Court, the Court of Appeals, or any other tribunal or
agency, I undertake to report that fact within five (5) days therefrom to this Honorable
Commission.

SHAILA ARZADON CABAGTONG

Affiant
SUBSCRIBED AND SWORN to before me this ___ day of ____________
Quezon City, affiant is known personally to this Notary Public
Doc.No.;
PageNo.;
BookNo.;
Series of 2012.