Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VIII
Tacloban City
SERGIO B. REYES,
Complainant,

RAB VIII Case No. 01- 00005 - 11

-versusBURAUEN QUALITY BREAD

BAKESHOP,
Respondent,
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 SERGIO B. REYES, of legal age,
married, with post office address at District 1, San Ramon St., Burauen,
Leyte where he could be served with summons and other legal processes
of this Honorable Office.
The Respondent is BURAUEN QUALITY BREAD BAKESHOP, a business
establishment owned by Dyna and managed by Nilda A. Roca, with
business address at San Luis St., Burauen, Leyte, 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 a regular employee as baker of
Respondent Burauen Quality Bread Bakeshop since January 1, 2003. The
business undertaking of the said Respondent is to sell bread to the public
which Complainant prepares 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 worked for seven (7) days a week with no rest day
or day-off. He worked for 9 hours per day with no overtime pay. He was
also made to work on holidays without holiday/premium pay, with the
exception of the following holidays for which there was no work, to wit:
Christmas day, New Years day, Good Friday and on December 8, which is
the fiesta of Burauen, Leyte.
The starting salary of Complainant was Php 100.00 per day. In the
year 2005, this was increased to Php 110.00 per day. Then, in 2006, his
daily wage was increased to Php 115.00. In the year 2007 near the month
of December, his daily wage was increased to Php 120.00 and in the year
2008, his daily wage was again increased to Php 135.00. In the year 2009,
his daily wage was again increased to Php 140.00 and on January 2010,
Complainants daily wage was again increased to Php 150.00 until he was
illegally terminated on December 6, 2010. All of the aforementioned daily
wage rates are below the prevailing minimum wage mandated by law and
given effect by the various applicable Wage Orders issued by the Regional
Tripartite Wages and Productivity Board VIII.
However, during paydays on the 15th and on the last day of the
month, the Complainant was made to sign in a blank payroll consisting of
two sheets of paper and then in a separate paper containing the actual
amount received as salary. Hence, it is possible that the Respondent can
produce a payroll signed by the Complainant containing entries of wage
which is at par or more than the prevailing minimum wage as it is easy to
fill in the desired entries of the amount of wage on the blank but presigned payroll.
Likewise, Complainant was not given the yearly service incentive
leave of five days with pay in accordance to Article 95 of the Labor Code.
On December 6, 2010, Complainant was verbally terminated without
due process from his work by Dyna, the owner of the Burauen Quality
Bread Bakeshop.
The Complainant was not given his 13 th month pay for the year
2010, although in the previous years, he was given such every December.

Likewise, his salary for the period of December 1-6, 2010 was not given to
him.
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 February 17, 2011 which is attached and made integral
part of this Position Paper as Annex B, as well as his verified Complaint
dated January 10, 2011 which is on the records of this case.
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 COMPLAINANT IS ENTITLED TO SERVICE
INCENTIVE LEAVE PAY, HOLIDAY PAY, REST DAY PAY AND
OVERTIME PAY.
3. WHETHER OR NOT THE COMPLAINANT WAS UNDERPAID.
4. WHETHER OR NOT, THE RESPONDENT IS LIABLE TO THE
COMPLAINANT FOR NOMINAL DAMAGES AND MORAL DAMAGES.
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 dismissal 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].
SECOND ISSUE: (SERVICE INCENTIVE LEAVE PAY, HOLIDAY PAY, REST DAY
PAY, OVERTIME PAY)
As to the entitlement of service incentive leave pay, rest day pay
and holiday pay premiums, the Complainant believes that he is entitled to
the same just like all other regular employees and as guaranteed by the
Labor Code of the Philippines.

The complainant was deprived of his

service incentive leave pay, holiday and rest day premium pay.
The Labor Code provides for an 8-hour normal hours of work
pursuant to Art. 83 thereof and work rendered in excess of 8 hours should
be paid the overtime pay in accordance with Art. 87.

Inasmuch as the

Complainant rendered 9 hours per day of work, he is entitled to overtime

pay.
THIRD ISSUE (UNDERPAYMENT OF SALARY)
The Complainant was underpaid throughout his employment with
the Respondent. For instance, when he was receiving a daily wage of Php
100.00 in 2004 when Wage Order No. RB VIII-11 took effect, the minimum
daily wage mandated was already Php 195.00.

The subsequent daily

wage increases granted to the Complainant over the years was not able to

reach the amount prescribed in the aforementioned wage order which has
since been superseded by subsequent wage orders.
The Complainant respectfully submit that he should have been
receiving the daily minimum wage so provided by the wage orders issued
by the Regional Tripartite Wages and Productivity Board VIII and
considering that he has not received the legal wage mandated by law, he
should be paid the salary differential.
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, the 13th month pay for the year
2010 and his salary for December 1 to 6, 2010.

2.

Ordering the Respondent to pay to the Complainant the

salary differential due to him.

3.

Ordering the Respondent to pay to the Complainant his

SERVICE

INCENTIVE

LEAVE

PAY,

HOLIDAY

PAY,

REST

DAY

PREMIUM PAY AND OVERTIME PAY that were all deprived from
him during his entire employment with the Respondent.
4.

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 10,000.00
for not affording to the complainant the procedural due process,
the amount of Php 100,000.00 as moral damages and the
amount of Php 50,000.00 as exemplary damages.

Other reliefs just and equitable under the premises are also prayed
for.
RESPECTFULLY SUBMITTED.
Tacloban City, February 24, 2011.
The PUBLIC ATTORNEYS OFFICE
(Counsel for the Complainant)
Tacloban District Office
Bulwagan ng Katarungan
Magsaysay Blvd., Tacloban City
By:
NEMITZ F. NEGADO
Public Attorney II
Roll of Attorneys No. 40747
IBP No. 05045 (Lifetime)
MCLE Compliance No. III - 0017029
(June 2, 2010)

Copy furnished: (by Registered Mail)

NILDA L. ROCA
Burauen Quality Bread Bakeshop

Registry Receipt No._________

Date Mailed:_______________

San Luis Street

Burauen, Leyte

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