Julius Eric T.

Alcantara
JD 1 - 2
Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. XIII
Taguig City
Mamang S. Guard,
Plaintiff,
- versus -

Civil Case No. 87000-a

GARAPAL INC.ET. AL.,

Defendants.
x--------------------------------------x
POSITION PAPER
COMPLAINANT by the undersigned counsel and unto this
Honorable Labor Arbitration Office, most respectfully submits this
position paper and avers the following to wit:
PREFATORY STATEMENT
The Complainant in this case is MAMANG S. GUARD, of legal
age, married, with post office address at Block 51, Sonalan St.,
Upper Bicutan, Taguig City where he could be served with
summons and other legal processes of this Honorable Office.
The Respondent is GARAPAL INCORPORATED, a business
establishment owned by Ceasar Montano and managed by Maria
Osawa, with business address at Legaspi St., Lower Bicutan,
Taguig City, where the said establishment and representative
could be served with summons and other legal processes of this
Honorable Office.
STATEMENT OF FACTS

The Complainant was formerly an agency employed security

guard of GARAPAL INCORPORATED since February 28, 2016. The
business undertaking of the said Respondent is to sell phones to
the public which Complainant guards in the premises of the
Respondent.

A copy of the Identification Card issued by the

Respondent to the Complainant is hereto attached as Annex A

as proof of the latters employment.
The Complainant was on duty from 12 mn to 9am, and was
posted at the front glass doors of the store while it was closed. Mr.
Bean, the owner of the store, caught him sleeping. Mr. Bean
shouted "Putang ina mo! Umuwi ka na!" which woke him, and
after being able to acquire his senses, Mr. Guard went home
humiliated.
Mr. Guard reported for duty the next day, but the store
manager Mr. Right, told him to go back to his agency. When Mr.
Guard was in the agency, he was told that his status was floating
and that the agency will call him when there is an available job.
That as a result of the unjust termination of employment of
the Complainants by the Respondent, the former suffered mental
anguish, sleepless nights, wounded feelings, serious anxiety,
moral shock, and social humiliation, especially concerning the
daily sustenance of his family.
In support of the foregoing allegations is the Affidavit of the
herein Complainant dated March 5, 2016 which is attached and
made integral part of this Position Paper as Annex B, as well as
his verified Complaint dated February 29, 2016 which is on the
records of this case.

ANTECEDENT FACTS
On February 20, 2016, the night before Mr. Guard was
caught sleeping, he was ask by his co-security guard to relieve

the three (3) hours shift of the latter, leaving him to be on duty for
12 hours straight, from 9pm to 9am. Due to the exhaustion of
being on-duty for an unbearable amount of time, Mr. Guard, while
waiting for his co-security guard to take the shift, closed his eyes
in order to take a rest while waiting. While taking a rest, Mr. Bean,
caught him sleeping and shouted derogatory words against him
and directed him to go home.
ISSUES
1. WHETHER OR NOT THE COMPLAINANT WAS ILLEGALLY
DISMISSED AND WHETHER OR NOT THE COMPLAINANT
WAS AFFORDED THE PROCEDURAL DUE PROCESS.
2. WHETHER OR NOT, THE RESPONDENT IS LIABLE TO THE
COMPLAINANT FOR NOMINAL DAMAGES AND MORAL
DAMAGES.
DISCUSSION OF ISSUES
FIRST ISSUE: (Illegal Dismissal and no Procedural Due Process)
From the foregoing facts, it is clear that the dismissal of the
complainant was illegal thus he should be paid of his separation
pay as provided by law. Also, no procedural process was accorded
to him prior to his termination from service.
Insofar as the procedural due process is concerned, Article
277 (b) of the Labor Code specifically requires the employer to
furnish the worker or employee sought to be dismissed with two
written notice, i.e., a notice which apprises the employee of the
particular acts or omission for which his dismissal is sought, and a
subsequent notice which informs the employee of the employers
decision to dismiss him (Kiamco vs. NLRC, G.R. No. 129449, June
29, 1999).

In this instant case, clearly the complainant was not afforded

of the procedural due process accorded by law because he was
simply verbally fired from his employment.
In addition, (I)t must be borne in mind that the basic
principle in termination cases is that the burden of proof rests
upon the employer to show that the dismissal is for just and valid
cause, and failure to do so would necessarily mean that the
dismiss

al was not justified and, therefore, was illegal [Polymedic

General Hospital v. NLRC, G.R. No. 64190, January 31, 1985, 134
SCRA 420; and also Article 277 of the Labor Code].
FIFTH ISSUE: (NOMINAL DAMAGES, EXEMPLARY DAMAGES AND
MORAL DAMAGES)
Cleary, the Respondent violated the statutory right of the
herein complainant i.e. his right to be furnished of the two written
notice prior to dismissal as specifically provided by Article 277 (b)
of the Labor Code of the Philippines. In a case like this, the proper
award is nominal damages under the Civil Code as it is aimed to
vindicate the right to procedural due process violated by the
employer.

In the case of Jenny Agabon and Virgilio Agabon vs.

NLRC (G.R. No. 158693, November 17, 2004), for lack of statutory
due process, the employer was ordered to indemnify the
employee for the violation of his statutory right which warrants
the indemnity in the form of nominal damages.
Likewise the herein Complainant is entitled to moral
damages because the dismissal of the complainant was attended
by bad faith of constitutive of an act oppressive to labor. In the

case of Lim vs. National Labor Relations Commission [GR No.

79907

March 16, 1989], the Supreme Court uphold the award of

moral as well as exemplary damages in view of the bad faith

attendant to the treatment of the employee.
In the instant case, there is no other plausible explanation for the
acts (or its conspicuous absence) of the Respondent of the
manner wherein the Complainant was deprived of his
employment except bad faith.
PRAYER
WHEREFORE, premises considered, it is most respectfully
prayed of this Honorable Labor Arbiter, that decision be rendered,
to wit:
1.

Declaring the termination of the herein Complainant

as illegal and further, ordering Respondent to pay unto
the Complainant separation pay.

2.

Furthermore,

it

is

likewise

prayed

unto

the

Honorable Labor Arbiter to order the Respondent to pay

the herein Complainant nominal damages in the amount
of Php 5,000.00 for not affording to the complainant the
procedural due process, the amount of Php 50,000.00 as
moral damages and the amount of Php 25,000.00 as
exemplary damages.
Other reliefs just and equitable under the premises are also
prayed for.
RESPECTFULLY SUBMITTED.
Taguig City, March 6, 2016.

Alcantara and Associates

(Counsel for the Complainant)
BGC Building 1
Bonifacio Business Centre
Global City, Taguig City
By:
Atty. Julius Alcantara
Lead Attorney
Roll of Attorneys No. 696969
IBP No. 010101)
MCLE Compliance No. III - 034639
(March 6, 2016)