Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

ARVIN A. PASCUAL,

Complainant,

- VERSUS - NLRC NCR Case No. NCR-05-05071-15

LABOR ARBITER MARCIAL GALAHAD T. MAKASIAR

SITEL PHILIPPINES and/or

MICHAEL LEE,
ASWIN SUKUMAR,
PHOEBE MONICA ARGANA
REMIL CANDA, and
AMOR REYES,

Respondents.
x--------------------------------------------------------------------------------------------------------x

REPLY
(To Respondents Position Paper)

COMPLAINANT, by himself and unto this Honorable Office, most

respectfully submits this Reply to Respondents Position Paper, thus avers that:

1. Respondents, in paragraph #3, page #2 of their position paper alleged that

- Mr. Aswin Sukumar never passed any derogatory or racist remark to Complainant.

Complainant denies the foregoing allegation. Nowhere in the email of

Respondent Sukumar sent to Complainant on 26 November 2014 (Annex 6 of
Respondents position paper) that he ever denied casting aspersions against the
reputation of Complainant on 21 November 2014 when he, together with Respondents
Reyes and Argana, served the 5-day suspension notice. All that he said in his email
reply was we do feel that you are wrongly interpreting things.

Additionally, paragraph #3, page #2 of Respondents position paper, further

alleged If at all, it was the Complainant who is being unfair to Mr. Aswin Sukumar
by casting dirt on the image and reputation of the Sitel Officer. He even conveniently

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alleges that he is being singled out by Mr. Aswin Sukumar from among all the
Respondent Sitels thousands of employees.

Complainant denies the foregoing allegation. It has no knowledge or

information sufficient to form a belief as to the truth and correctness of the foregoing
allegations.

2. Respondents, in paragraph #4, page #2 of their position paper alleged that -

Complainants allegations that he suffered several illnesses such as cervical disc
prolapse, peripheral neuropathy, cervical stenosis, cervical radiculopathy, myofascial
pain syndrome, migraine headache, and acute pharyngitis deserve scant consideration.
Those illnesses are mere fabrications of Complainants very creative mind. It is also
noteworthy to point out that if indeed Complainant suffered such illnesses, he could
have easily submitted a medical certificate to the management but none was ever
presented.

Complainant could only wonder how could Respondents alleged that Complainant
fabricated several illnesses such as cervical disc prolapse, peripheral neuropathy,
cervical stenosis, cervical radiculopathy, myofascial pain syndrome, migraine headache,
and acute pharyngitis. Where did Respondents get all these medical terms if
Complainant truly did not submit any medical certificate?

Whereas, the truth is that Complainant has never verbally communicated to any
of the Respondents that he (Complainant) is in extreme pain and unable to report for
work due to the foregoing illnesses which Respondents alleged are but mere
fabrications of Complainants very creative mind. Neither did Complainant communicate
in writing to any of the Respondents that he (Complainant) could not report for work
and merely feigned the foregoing illnesses to justify absences which Respondents
alleged are but mere fabrications of Complainants very creative mind.

The truth is that the Respondents are the one with a very creative mind. They
suppressed the truth that Complainant in fact submitted medical certificates duly
verified by Respondent Sitels Clinic Team1 All of these verified medical certificates

[1] Attached hereto as Annex A up to Annex A-11 and made integral parts hereof are copies of
Complainants verified medical certificates duly copy circulated to Respondents

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were copy circulated via electronic mail correspondence to Respondents Canda, Reyes,
and Argana by Ms. Laureen T. Cabungcal Respondent Sitels Company Nurse. The vile
goals of Respondents in suppressing the truth about the submission of verified medical
certificates by Complainant are as follows:

[a] augment their theory that Complainant is an absentee coach; and

[b] justify their illegal withholding of Complainants salary.

Clearly, all of the above-named Respondents have absolute knowledge that

Complainant is in fact suffering from cervical disc prolapse, peripheral neuropathy,
cervical stenosis, cervical radiculopathy, myofascial pain syndrome, migraine headache,
and acute pharyngitis as diagnosed by Respondent Sitels accredited physician and not
mere fabrications of Complainants very creative mind as alleged by Respondents in
their position paper.

Also, it is noteworthy that Respondent Reyes, in an email dated 2 December

20142, even replied to Ms. Laureen T. Cabungcal Respondent Sitels Company Nurse
thanking the latter for providing her (Respondent Reyes) with copies of Complainants
verified medical certificates. Additionally, Respondent Reyes, in the same email, even
requested for a copy of the Complainants third medical certificate.

Therefore, Respondents act of withholding Complainants salary for absences

with duly verified medical certificate and worst accusing Complainant of fabricating
illnesses such as cervical disc prolapse, peripheral neuropathy, cervical stenosis, cervical
radiculopathy, myofascial pain syndrome, migraine headache, and acute pharyngitis
despite having full knowledge about the existence and their possession of
Complainants verified medical certificate are plainly abusive of the Respondents and
oppressive to the Complainant. This is an explicit manifestation of palpable bad faith on
the part of Respondents.

In The Philippine American Life and General Insurance Co. vs. Angelita Gramaje,
G.R. No. 156963 [November 11, 2004], the Supreme Court explained

[2] Attached hereto as Annex B and made integral part hereof is a copy of Respondent Amor Reyes 2
December 2014 email to Ms. Laureen T. Cabungcal Respondent Sitels Company Nurse

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 Bad faith has been defined as a state of mind affirmatively operating with
furtive design or with some motive of self-interest or ill will or for an ulterior
purpose. It implies a conscious and intentional design to do a wrongful act for a
dishonest purpose or moral obliquity.

In SHS Perforated Materials, Inc. vs. Manuel F. Diaz, G.R. No. 185814 [October
13, 2010], the Supreme Court ruled:

Management prerogative refers "to the right of an employer to regulate all

aspects of employment, such as the freedom to prescribe work assignments,
working methods, processes to be followed, regulation regarding transfer of
employees, supervision of their work, lay-off and discipline, and dismissal and
recall of work." Although management prerogative refers to "the right to
regulate all aspects of employment," it cannot be understood to include the
right to temporarily withhold salary/wages without the consent of the
employee. To sanction such an interpretation would be contrary to Article 116
of the Labor Code (underscoring supplied), which provides:

ART. 116. Withholding of wages and kickbacks prohibited. It shall be

unlawful for any person, directly or indirectly, to withhold any amount from
the wages of a worker or induce him to give up any part of his wages by force,
stealth, intimidation, threat or by any other means whatsoever without the
workers consent.

Any withholding of an employees wages by an employer may only be allowed

in the form of wage deductions under the circumstances provided in Article
113 of the Labor Code, as set forth below:

ART. 113. Wage Deduction. No employer, in his own behalf or in behalf of

any person, shall make any deduction from the wages of his employees,
except:

(a) In cases where the worker is insured with his consent by the employer, and
the deduction is to recompense the employer for the amount paid by him as
premium on the insurance;

(b) For union dues, in cases where the right of the worker or his union to
check-off has been recognized by the employer or authorized in writing by the
individual worker concerned; and
(c) In cases where the employer is authorized by law or regulations issued by
the Secretary of Labor.

As correctly pointed out by the LA, "absent a showing that the withholding
of complainants wages falls under the exceptions provided in Article 113,
the withholding thereof is thus unlawful."

In the same case, the Supreme Court also held that:

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 What made it impossible, unreasonable or unlikely for respondent to continue
working for SHS was the unlawful withholding of his salary. For said reason,
he was forced to resign (underscoring supplied).

XX XX XX

What is significant is that the respondent prepared and served his resignation
letter right after he was informed that his salary was being withheld. It would
be absurd to require respondent to tolerate the unlawful withholding of his
salary for a longer period before his employment can be considered as so
impossible, unreasonable or unlikely as to constitute constructive dismissal.
Even granting that the withholding of respondents salary on November 30,
2005, would not constitute an unlawful act, the continued refusal to release his
salary after the payroll period was clearly unlawful (underscoring supplied).
The petitioners claim that they prepared the check ready for pick-up cannot
undo the unlawful withholding.

It is worthy to note that in his resignation letter, respondent cited petitioners

"illegal and unfair labor practice" as his cause for resignation. As correctly
noted by the CA, respondent lost no time in submitting his resignation letter
and eventually filing a complaint for illegal dismissal just a few days after his
salary was withheld. These circumstances are inconsistent with voluntary
resignation and bolster the finding of constructive dismissal. (underscoring
supplied)

3. Respondents, in paragraph #5, page #4 of their position paper alleged that -

During Complainants first month as a coach on July 2014, it was discovered that
Diosdado Remion, an agent in his team had been reporting to work without doing
anything; not taking in calls; not doing any tasks xxxx Though not doing anything, this
agent is still being paid by Respondent Sitel.

Complainant denies the foregoing allegation having no basis in fact. The truth is
that Respondents Canda and Reyes are well informed that Respondent Sitel had been
incurring pecuniary losses ever since Diosdado Remion was placed on off-the-phone
status effective 14 May 2014 because he continuously receive salary without productive
output. The electronic mail correspondence of Zaldy Espaola dated 29 June 2014
addressed to Shiela Morales HR Generalist and direct report of Respondent Argana
copy circulated to Respondents Canda and Reyes is patently evident of this fact.3

[3] Attached hereto as Annex C and made an integral part hereof is a copy of the electronic mail
correspondence of Zaldy Espaola, coach of Diosdado Remion, dated 29 June 2014

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 4. Respondents, in the same paragraph #5, page #4 of their position paper
further alleged that - The Operations Manager for the Comcast account then
instructed Complainant to coordinate with Respondent Sitels Quality Team to review
the complaint and to consult with Human Resources Department on how to proceed
with Mr. Remions case. Despite these very clear instructions, Complainant opted not
to act on this.

Complainant denies the foregoing allegations having no basis in fact. The truth
is that Complainant, on his own volition, coordinated with the Comcast Quality Team as
evidenced by an electronic mail correspondence dated 21 July 2014.4 He requested for
a transcription of the call between Remion and the customer who accused the latter of
exhibiting rude behavior on 13 May 2014. But the Comcast Quality Team failed to
provide him with the transcript of call. The more than sixty (60) days of inaction by
Respondents rendered the retrieval of the call impossible. The transcript of call is a
condition precedent in the issuance of CARE Form 1 (Notice to Explain). Briefly stated,
without the transcript of call, there is no case against Remion.

5. Respondents, in paragraph #1, page #5 of their position paper, alleged that -

For the second time, Complainant did not provide any explanation. Refusing again to
answer any of the allegations presented to him, he submitted another letter, continuing
to demand for a written statement with sufficient definiteness or particularity.

Complainant admits that in fact he submitted another letter. Aforesaid letter has
the subject: Reply to Revision #2 Notice to Explain (NTE) Dated 4 November 2014
(Annex H up to Annex H-5 of Complainants Position Paper). It was sent to
Respondent Argana via electronic mail on 9 November 2014 at 8:21 A.M.

Complainant, however, denies that he refused to answer and refused to provide

any explanation. The contents of Annex H up to Annex H-5 of Complainants
position paper will lend support to a conclusion that this allegation of Respondents is
baseless and devoid of truth.

6. Respondents, in paragraph #2, page #5 of their position paper, alleged that -

[4] Attached hereto as Annex D and made an integral hereof is a copy of the electronic mail
correspondence of Complainant Pascual dated 21 July 2014

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On November 11, 2014, an administrative hearing was scheduled. Complainant did
not attend. He only sent the HR Manager an email reiterating his demands in the letter
he submitted. Again, Complainant was insistent that he be provided with a clearer
discussion on his infractions.

Complainant admits that in fact he sent an electronic mail correspondence to

Respondent Argana pertaining to the 10 November 2014 administrative hearing.
Aforesaid correspondence has the subject: Reply to Admin Hearing (Annex I up to
Annex I-3 of Complainants Position Paper). It was sent to Respondent Argana
seventeen (17) hours before the 11:30 administrative hearing.

The contents of Annex I up to Annex I-3 undeniably established the fact that
it was the inaction of Respondent Argana that rendered Complainant unable to
participate in the administrative hearing.

Additionally, Complainant was on medical leave on 10 November 2014 supported

by a verified medical certificate. For this reason, he cannot be compelled to be in the
workplace.

In Dr. Danilo T. Ting and Mrs. Elena Ting VS. Court of Appeals, G.R. No. 146174,
July 12, 2006, the Supreme Court said

Indeed, as keenly pointed out by the Executive Labor Arbiter, and

seconded by the appellate court, sickness justifies an employee from being absent
or leaving his work. To demand from private respondent to remain in F/B Liza
V despite the excruciating physical pain that he was suffering on the day of 11
June 1998, would be to ignore that labor is a human capital subject to the frailties
of the physical body (underscoring supplied).

7. Respondents, in paragraph #3, page #5 of their position paper alleged that -

On the contrary, though how complex Complainant would make it appear in his several
emails to management of Sitel, the infraction of Complainant can be simply defined as
gross negligence, i.e. his wilful failure to act on the instruction of the Operations
Manager to refer the situation of Mr. Remion to the Human Resources Department for
proper action.

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 Complainant denies the foregoing allegation. It has no knowledge or information
sufficient to form a belief as to the truth and correctness of the foregoing allegations.

8. Respondents, in paragraph #4, page #5 of their position paper alleged that -

Though the infraction of Complainant was a very serious offense that would warrant
his termination, management recognized the fact that the root of the problem was not
of Complainants doing but of another supervisor who had long resigned from Sitel.
Nevertheless, management still found fault by way of omission on the part of
Complainant warranting his suspension.

Complainant denies any omission on his part. Hence, his suspension has no
basis in fact and in law. The real parties who are grossly negligent are the
Respondents themselves. Their combined inaction is the proximate and immediate
cause why Sitel sustained pecuniary losses occasioned by Remions continued
employment. For had anyone among the Respondents been faithful in the performance
of their obligations as required by Sitel Code of Conduct, as follows:

I. FUNDAMENTAL RESPONSIBILITIES

XX XX XX

2. The supervisors and Operation/Department Managers shall be

principally responsible for initiating actions as well as reporting violation of
Company Rules and Regulations within 72 hours from the time of
discovery or knowledge of the offense. Serious offenses, which are those
punishable by dismissal, must be acted upon within forty eight (48) hours
(emphasis supplied).

then even before 1 July 2014 the Remion case is already closed or settled.
Unfortunately, all of them had been remiss in the performance of their duties causing
the Remion case to drag on and remain unresolved until such time Complainant joined
Comcast CSG account as Coach (Supervisor).

9. Respondents, in paragraph #1, page #6 of their position paper alleged that

At the time the Decision was handed down, Complainant was present with Sitel officer,
Aswin Sukumar. Aswin joined to personally talk to Complainant and explained to him

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that if he has any concern about the due process and if he thought the decision was
unfair, Complainant could talk to him so that further discussion could be had with him.
Complainant refused to speak up and said that his lawyer instructed him to say
anything at all.

Complainant admits that Respondent Sukumar, together with Respondents Reyes

and Argana, served Complainant a Notice of 5-Day Suspension on 21 November 2014.
However, Complainant denies the rest of the foregoing allegations of Respondents
having no basis in fact.

10. Respondents, in paragraph #2, page #6 of their position paper alleged that
On November 22, 2014, after the issuance of the Notice of Decision for the 5-day
suspension, Complainants Operations Manager (Respondent Reyes) sent him a text
message asking if he was reporting for work on that day, then out of nowhere,
Complainant accused Aswin Sukumar of being a racist, he even stated that as a Filipino,
I am totally devastated emotionally and psychologically consequent to the kind of image
I was made to appear by a non-Filipino right in our homeland. Deeply sorry but I cant
muster the emotional strength to be in the same workplace today where my reputation
was injured.

Complainant admits that he was unable to report for work on 22 November 2014
because he was so depressed (a) his right to due process was trampled upon, and (b)
aspersions were casted against his person (reputation) during the 21 November 2014
service of Notice of Suspension.

Furthermore, Complainant admits that he sent an electronic mail correspondence

to Respondent Reyes (Annex O of Complainants Position Paper) which reads as
follows:

As a human being and most importantly being a Filipino, I am totally

devastated (emotionally and psychologically) consequent to the kind of image
I was to appear by a foreign national before fellow Filipinos right in our own
homeland on the early morning of November 21, 2014.
I am deeply sorry, but I cannot muster yet the emotional strength to be in the
same workplace today where my reputation was injured.

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 11. Respondents, in pages #6 and #7 of their position paper reproduced the
contents of an electronic mail correspondence sent by Respondent Sukumar to
Complainant on 26 November 2014.

Complainant admits that he received the aforesaid email of Respondent Sukumar

which is actually a reply to Complainants email (Annex P up to Annex P-1 of
Complainants position paper) sent on 25 November 2014.

Respondent Sukumars reply was obviously sugar coated to dampen the impact
of the aspersions he verbally casted against Complainant on 21 November 2014. It is
most logical that Sukumar will never put in writing anything that will cause him to be
branded as truly anti-Filipino and will reinforced the contents of Complainants 25
November 2014 email.

The events that transpired during the service of 5-day suspension at the 31st
floor conference room of Respondent Sitel on the early morning of 21 November 2014
and the tenor of the words and phrases by which Respondent Sukumar couched his 25
November 2014 reply email are two separate but inter-locking events. The first being
the real scenario (vividly described in Complainants email dated 25 November 2014
[Annex P up to Annex P-1 of Complainants position paper] and 30 November 2014
[Annex Q up to Annex Q-2 of Complainants position paper]) that transpired when
three managers of Sitel in the persons of Respondents Sukumar, Reyes, and Argana
bonded together solely for the purpose of serving the 5-day Notice of Suspension to
Complainant. The second is the response of Respondent Sukumar to Complainants
email wherein he (Complainant) narrated the deplorable treatment he received from
Respondent Sukumar.

12. Respondents, in paragraph #4, page #7 of their position paper alleged that
On December 12, 2014, Complainant asked his manager to receive a similar letter
dated December 9, 2014 where Complainant expressed his intention to resign. His
manager, however, did not receive it as it was already December 12, 2014 when the
letter was tendered to her. Thus, Complainant was asked to update the date on the
letter. Complainant said that he will make a phone call to his lawyer first but he never
returned to have the letter received by his manager.

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 On December 18, 2014, Complainant tendered a resignation letter to
management effective that same date which was formally accepted by management on
December 19, 2014.

Complainant denies the foregoing allegations. The facts supported by

documentary evidence are as follows:

[a] Complainant tendered his resignation letter, albeit against his will, via
electronic mail to Respondent Lee on 8 December 2014.

[b] Complainant personally met Respondent Reyes on 11 December 2014 at

the Comcast CSG production floor and provided her with a copy of his resignation
letter. Respondent Reyes receive the notice from Complainant, opened the envelope
containing the notice, and thereafter read it.

[c] When Complainant requested Respondent Reyes to kindly acknowledge in

writing her copy of the notice by affixing her signature thereon, Respondent Reyes
refused to do so without adducing any explanation.

[d] Helpless as Respondent Reyes did not grant her signature despite
Complainants pleadings exacerbated by a deep concern that Respondent Reyes will
impute on him (Complainant) an offense of job abandonment, Complainant resorted to
the following courses of action:

[d.1] Sent another copy to Respondent Reyes via electronic mail

correspondence on the following day, 12 December 2014 at 9:24
A.M. (Annex U up to Annex U-3 of Complainants position
paper); and

[d.2] Printed another copy of the same notice and sent it to Respondent
Reyes via registered mail with return card on 15 December 2014
(Annex V up to Annex V-3 of Complainants position paper).

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 13. Respondents, in pages #8 and #9 of their position paper, reproduced an
alleged Complainants Team Performance vs. Goal result as well as Focus Group
Discussion (FGD) result alleged to have been conducted on 13 November 2014.

Complainant has no knowledge or information sufficient to form a belief as to the

truth or correctness of these results (Team Performance vs. Goal and FGD). The truth is
that there was never an occasion whereby Respondent Reyes divulge these alleged
results (Team Performance vs. Goal and FGD) with Complainant.

If these results have basis in fact and Respondent Reyes is truly fair to
Complainant as what she asserts to be, then she should have discuss these results to
Complainant. This is what effective supervision is all about.

This introduction of alleged results (Team Performance vs. Goal and FGD) is but
a desperate attempt by Respondents to prove that Complainant is so inept in the
performance of his duties and responsibilities as coach.

It is rather peculiar, though, that the alleged ineptness of Complainant did not
prompt Respondents to discuss these results to Complainant considering that the
solemnity of Complainant's alleged non-performance was so immense.

It bears stressing that Complainant, prior to his illegal dismissal on 8 December

2014, has already rendered eight (8) long and loyal service with Respondent Sitel. He
was promoted twice: from agent to trainer/certified coach and then to
coach/supervisor assigned to the Comcast Customer Service Group.

Shortly after Complainants transfer to Comcast CSG, his worst nightmare began.
He (Complainant) was made a scapegoat by Respondent Sitels managers like Glenn
Kuan including Respondents Argana, Reyes, and Canda. Respondents and Glenn Kuan,
in cahoot with one another, framed-up Complainant for him to be blamed solely for the
continued employment of Diosdado Jayson Remion (Agent - Comcast CSG) even after
an alleged violation of Comcast Zero Tolerance Policy on or about 13 May 2014.

The almost two months of agony suffered by Complainant resulting from

sustained and concerted machinations by Respondents in order that Complainant could
be blamed and held solely responsible for the continued employment of Remion

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induced in Complainant an immense sense of insecurity with his job the threat of
immediate termination from work, if not aggression. This is a heavy burden carried on
Complainants shoulder which resulted to a resolution on his part to protect himself
from uncertainty. Thus, Complainant felt compelled to give up his employment.

14. Respondents, in pages #9 of their position paper, alleged that - During the
mediation, SENa Mediator Ma. Zenaida Nicolas consistently advised Complainant to
speak up and air out his concerns to reach an amicable settlement between the
parties. However, Complainant neither spoke nor uttered even a single word as he just
pointed to his adviser who was allegedly an HR practitioner who did all the talking.

Complainant denies the foregoing allegation. The truth is that during the 1st
conciliation conference on 7 January 2015, Respondents legal counsel, who arrived one
hour late, requested for a re-scheduling of the conciliation conference on 21 January
2015 adducing reason that she has not studied the documents provided her by
Respondent Sitel.

On the 2nd conciliation conference last 21 January 2015, Complainant was

immediately informed by Sitels legal counsel that his request for reinstatement/transfer
to another account was denied. Thus, effectively shutting the door for any further
conciliation meeting. Hence, the parties were ordered to simultaneously file their
position papers.

15. Respondents, in paragraph #1, page #11 of their position paper for the nth
time re-stated their fantastically imagined sheer fabrication-by-the-Complainant theory.
Respondents, in their vain attempt to mislead the Honorable Labor Arbiter stated that -
These alleged discrimination and singling out were neither substantiated nor proven by
the Complainant in the mandatory conferences. Such are all sheer fabrications of the
Complainant.

Complainant denies the foregoing allegation. The truth is that there has never
been an instance during any of the mandatory conferences before the Honorable Labor
Arbiter that issues of discrimination and singling out alleged to be alluded to by
Complainant against the Respondents have ever been placed on the table. But the
irrefutable fact is that during the mandatory conference before the Honorable Labor

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Arbiter on 9 June 2015, Respondents, thru counsel, were very emphatic in their reply
to the query of the Honorable Labor Arbiter if there is still a way to amicably settle the
controversy Wala na po! Once again, Respondents shut the door. Thus, the parties
in the instant case were ordered to submit their respective position papers on 3 August
2015.

16. Respondents, in paragraph #2, page #11 of their position paper, alleged that
If any, the only disciplinary action Complainant was ever subjected to was the five-day
suspension for his omission when it appeared that Complainant took no action about his
unproductive agents situation since July 2014 and simply allowed the agent to report
for work every day without taking calls. The penalty of suspension is clearly warranted
under the circumstances.

Complainant denies any omission on his part. Hence, his suspension and
withholding of salaries have no basis in fact and in law. The real parties who are
grossly negligent are the Respondents themselves. Their inaction is the proximate and
immediate cause why Sitel sustained pecuniary losses occasioned by Remions
continued employment. For had anyone among the Respondents been faithful in the
performance of their obligations as required by Sitel Code of Conduct, as follows:

I. FUNDAMENTAL RESPONSIBILITIES

XX XX XX

2. The supervisors and Operation/Department Managers shall be

principally responsible for initiating actions as well as reporting violation of
Company Rules and Regulations within 72 hours from the time of
discovery or knowledge of the offense. Serious offenses, which are those
punishable by dismissal, must be acted upon within forty eight (48) hours
(emphasis supplied).

then even before 1 July 2014 the Remion case is already closed or settled.
Unfortunately, all of them (Respondents) had been remiss in the performance of their
duties causing the Remion case to drag on and remain unresolved until such time
Complainant joined Comcast CSG account as Coach (Supervisor).

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 17. Respondents, in page #12 of their position paper, alleged that Complainant
jump the gun on Respondents.

Complainant denies the foregoing allegation. The truth is that it was the
high ranking officials of Sitel in the persons of Respondents Sukumar, Canda, Reyes,
and Argana together with former Operations Manager Kuan who pounced on
Complainant. These high ranking officials of Sitel imposed misplaced "superiority" over
the person of the Complainant. In cahoots with one another, Respondents framed-up
Complainant in order to foreclose even the slightest opportunity of the Complainant to
exculpate himself from liability and be held as the party solely liable for the Diosdado
Remion fiasco.

18. Respondents, in paragraph #5 page #14 of their position paper, alleged that
If he felt aggrieved by the decision of management, he could have appealed to
management pursuant to the grievance procedure.

Complainant denies the foregoing allegation. The truth is that Complainant filed
a grievance in relation to the five day suspension imposed on him by Respondents.
Complainant sent his grievance notice via an electronic mail correspondence first on 25
November 2014 (Annex P up to Annex -1 of Complainants position paper) with a
follow-up on 30 November 2014 (Annex Q up to Annex Q-2 of Complainants
position paper) to (but said grievance notice was treated with cold disdain by)
Respondent Sukumar.

19. Respondents, also in paragraph #5, page #14 of their position paper,
alleged that Instead, he did not air his concerns in the meeting with Aswin Sukumar
and only kept quiet for the entire duration of the meeting insisting that he was advised
by his lawyer not to speak at all.

Complainant admits the allegation above only with regards to the conduct of a
meeting; provided, that such meeting was the one held at the 31st floor conference
room of Respondent Sitel on 21 November 2014. It bears stressing that there has
never been any occasion whereby Complainant had an opportunity to have a meeting
with Respondent Sukumar on one-on-one basis.

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 This meeting, which was called by three senior officials of Respondent Sitel in the
persons of Respondents Sukumar, Reyes, and Argana, is solely for the purpose of
serving to Complainant the five-day suspension notice.

Below is an excerpt from Annex Q and Annex Q-1 of Complainants position

paper. Its contents will succinctly reveal why Complainant was constrained to seal his
lips, as follows:

Surprisingly, seven days after my above email or on the early

morning of 21 November 2014, I was given verbal instruction by Ms. Amor
Reyes Operations Manager to leave the production floor and proceed
forthwith at the 31st floor. I was dumbfounded with the instruction. I was
given not a scant of information why I need to proceed at the 31st floor. I was
fearful and terribly apprehensive of what may happen to me. My heart was
pounding as I trailed Ms. Reyes from the production floor, into and out of the
elevator, and finally into a conference room. Inside the conference room are
two more management officials comfortably seated and obviously waiting for
our arrival. The management officials are Ms. Phoebe Monica Argana and
You. Being in a meeting, where I never expected that I will be under the
searching look and close watch of three management officials, I was like a fish
out of the water. I felt like a hare scampering for safety having been hotly
pursued.

During this 21 November 2014 meeting, and compounding the

humiliation that I was made to suffer and vividly described in my 25 November
2014 email I sent you, my intelligence was insulted as well when I was
criticized and faulted because I sought the assistance of counsel in order to
safeguard my constitutional guarantee against deprivation of proprietary rights
to livelihood and employment. The criticism casted on me cuts deep into my
reputation.

20. Respondents, in paragraph #3, page #15 of their position paper alleged that
- Losses in revenue at the rate of almost Php100,000.00 a month suffered by Sitel due
to an inactive employee is not a joking matter. This notwithstanding, it is also
undisputable fact that Complainant allowed Mr. Remion to just sit around and do
nothing for four (4) months and for Sitel to pay the latter his salary totalling
Php70,578.09.

Respondents believed that they are INFALLIBLE being managers and senior
manager of Respondent Sitel. This belief of INFALLIBILITY is supported by
Respondents own admission (page #3 of Sitel CARE Form 2 [Notice of Decision
Imposing 5-Day Suspension against Complainant]) and re-stated in page #16 of
Respondents Position Paper, quote:

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 Management, however, recognizes the fact that Diosdado Remion has
been off-the-phones since May, and prior to your appointment as a
coach. It is unfortunate that the employees who were initially
responsible for insuring that proper action was taken on the agents
case have left the company and that the responsibility was inevitably
transferred to you.

In other words, Respondents would like to deliver a message that managers and
senior managers are shielded from any liability despite having absolute knowledge on
the details and status of a customer complaint against an employee such as the alleged
violation of Comcast Zero Tolerance Policy by Diosdado Remion. Only
coaches/supervisors must be subjected to disciplinary actions. This is a patent case of
discrimination.

In The Philippine American Life and General Insurance Co. vs. Angelita Gramaje,

G.R. No. 156963 [November 11, 2004], the Supreme Court explained that

Discrimination is the unequal treatment of employees, which is

proscribed as an unfair labor practice by Art. 248(e) of the
Labor Code. It is the failure to treat all persons equally when no
reasonable distinction can be found between those favored and
those not favored.

Additionally, the clear import of the above-quoted contents of Sitel CARE Form 2
above is that the investigation of an infraction will inevitably be put to a halt the
moment the supervisor/coach leave Respondent Sitel even though the company stands
to incur financial losses and worst stands to lose its business on account of any
infraction made by its employees that could cause the clients to lose their trust and
confidence (phrase in quotation marks lifted from paragraph #3, page #4 of
Respondents Position Paper).

Be that as it may, Annex C and Annex D hereof clearly show that all
electronic mail correspondences pertaining to Remions alleged violation of Comcast
Zero Tolerance Policy commencing on 14 May 2014 were copy circulated to
Respondents. So that they could not claim innocence that Remion has been receiving
compensation effective 14 May 2014 despite on off-the-phone status. Respondents,
most especially Respondent Canda, could not claim innocence that his Quality Team

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was unable to prepare a transcript of call which is condition precedent by Human
Resources Department in the preparation of Sitel CARE form 1. Hence, a notice to
explain (NTE) could not be served to Remion.

Therefore, the inescapable conclusion is that the real parties who are grossly
negligent are the Respondents themselves who are occupying the ranks of either
manager or senior manager in Respondent Sitel. It is not the hapless coach
(Complainant Pascual) whom Respondents, in cahoots with one another, tried in futility
to be held liable solely and ultimately. Logic dictates that if the combined efforts of
Respondents failed to produce the desired result of getting rid of Remion, how could a
lowly coach like Complainant, who is barely new in the Comcast account, could be able
to accomplish what Respondents are unable to accomplish.

21. Respondents, in paragraph #4, page #15 of their position paper alleged
that - As can be culled from the facts and evidence on record, management had a
valid cause to impose the penalty of suspension on account of Complainants failure to
report his agents fraudulent acts.

Complainant denies the foregoing allegation. In the first place, there is nothing
on record that will show Remion ever committed a fraudulent act. Hence, Respondents
have no basis in fact and in law to impute an offense against Complainant of failure to
report an agents fraudulent act. Such being the case, Complainants suspension and
withholding of salaries are tainted with illegality.

22. Respondents, in the same paragraph #4, page #15 of their position paper
alleged that - The severity of Complainants inaction warranted his dismissal. Hence,
the 5-day suspension is clearly just and within the bounds of reasonableness.

Facts and evidence on hand support an incontrovertible conclusion that

Respondents committed serious violation of Complainants statutory and constitutional
right to due process through a string of nefarious acts discussed in Complainants
position paper. Ultimately rendering the imposition of 5-day suspension against and
withholding the salary of Complainant legally infirmed.

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 23. Respondents, in paragraph #6, page #17 of their position paper alleged
that - The fact thus remains is that Complainant was an absentee coach as assessed
by his agents. His repeated failure to report Mr. Remions inactive status to
management is a clear indication that Complainant was not doing his job, or at the
very least, he was not doing it properly.

Complainant denies the foregoing allegation. The truth is that Complainant is

not an absentee coach. Respondent Sitel will never promote Complainant twice in his
(Complainant) eight long and loyal years of service in the company if he is inept in the
performance of his duties and obligations.

It is worthy to note that prior to Complainants transfer to the Comcast CSG

account on 1 July 2014, he (Complainant) was assigned in Respondent Sitels Virgin
Media Account for six years, more or less. Records of Respondent Sitel will reveal that
during the six-year period Complainant was assigned in the Virgin Media account, his
(Complainant) sick leave benefit is intact and always converted into its cash equivalent.
It was only after Complainant was transferred to the Comcast CSG account that his
health drastically deteriorated due to the harsh, hostile, and unfavorable conditions set
for him (Complainant) by Respondents. Also, after Complainant acquired knowledge
from [former] Operations Manager Kuan about the ploy to oust him at the behest of
Respondent Canda (Respondent Sitel Sr. Operations Manager Comcast CST and Head
of Comcast Quality Team). Consequently, Complainant was constrained to make use of
his annual sick leave benefit credits.

In Dr. Danilo T. Ting and Mrs. Elena Ting VS. Court of Appeals, G.R. No. 146174,
July 12, 2006, the Supreme Court said

Indeed, as keenly pointed out by the Executive Labor Arbiter, and

seconded by the appellate court, sickness justifies an employee from being absent
or leaving his work. To demand from private respondent to remain in F/B Liza
V despite the excruciating physical pain that he was suffering on the day of 11
June 1998, would be to ignore that labor is a human capital subject to the frailties
of the physical body.

24. Respondents, in paragraph #7, pages #17 and #18 of their position paper
further alleged that - Notwithstanding the above justification for dismissal, herein
Respondents imposed only the penalty of a five-day suspension for Complainants
infractions. This goes to show that the companys policies which regulate their

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employees attendance are not only reasonable and just; they also reflect the
Respondents compassion and understanding for their employees plight.

There is no reason for Complainant to be grateful that the penalty of termination

of employment was reconsidered and commuted to 5-day suspension only. The
"suspension" was not because of Respondents compassion and understanding for their
employees plight. It was a mere after thought if not a clever subterfuge to mask
Respondents ultimate goal to rid itself of Complainant which was obviously already
decided upon. They (Respondents) realized in the end that they cannot implement with
semblance of legality the instruction of Respondent Canda to eliminate Complainant
by seeking cover under the pertinent provisions of The Labor Code of the Philippines on
terminating employer-employee relationship by means of just cause. The recourse by
Complainant to all means necessary within the limits of the law to safeguard his
(Complainant) constitutional right to security of tenure prevented Respondents to do
away with Complainant.

The chronicle of events from 15 October 2015 (the day Complainant was first
served a Notice to Explain [NTE] and bluntly advised by Kuan hearing yan for
termination, unahan mo na ) upto and until 16 December 2014 (the day Complainant
pleaded in vain to Respondent Argana to release his (Complainant) withheld salaries
betrays a sinister effort by Respondents to do away with Complainant.

25. Complainant cannot be faulted if he relentlessly protected his right against

unjust deprivation of property right as well as trespass against his reputation by
Respondents. It is not amiss to state that Complainant is but a David facing not one,
but a group of Goliaths. Clearly, all of Complainants courses of actions, legitimately
exercise, to parry the blows of the Goliaths is axiomatic that the instinct for self-
preservation is universal throughout the animal kingdom.

At the very onset of this case, specifically on 18 October 2014 when

former Operations Manager Kuan suddenly withdrew CARE Form 1 (Notice to
Explain[NTE]) that he first served to Complainant on 15 October 2014 and immediately
after the withdrawal, Kuan served Complainant a revised CARE Form 1 (Notice to
Explain [NTE]) antedated 9 October 2014 (referred to as Revised and Antedated NTE in
Complainants position position) coupled with an illegal and blunt suggestion -

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Hearing yan for termination. Unahan mo na.; Complainant had been very
transparent in his dealings with Respondents. Complainant tirelessly communicated
with Respondents. Upon the other hand, Respondents treated everything with cold
disdain. They simply shrugged their shoulders down to all of Complainants
communication efforts.

Quite relevantly, the case of The Philippine American Life and General Insurance
Co. vs. Angelita Gramaje, G.R. No. 156963 [November 11, 2004] is instructive, to wit:

Fifth, as clearly pointed out by respondent, she formally rejected the offer
of P250,000 for her to leave the company. The refutation was done in writing
and duly received by the three highest offices of petitioner, namely: the Office
of the President; the Office of the Executive Vice-President; and the Office of
the Senior Vice-President and Head of Human Resources. Incongruously,
taking into consideration the said contents of the formal letter of rejection, there
was no response whatsoever from the aforesaid offices (underscoring supplied).
It may be true, as stated by petitioner, that "the alleged memorandum pertaining
to the meeting held on 18 November 1998 on the alleged P250,000 settlement
offer was prepared by respondent alone without any participation from the
company," but the fact remains that no formal response was ever made by any
of the three offices which received the same. The contents thereof, if untrue,
would have elicited a stark and strong reaction from any of the three offices
(underscoring supplied).

26. Respondents like a broken music record of the old days incessantly pressed
on their allegation that former Operations Manager Glenn Kuan [who was hired by
Respondent Sitel on 15 June 2014, but for unknown reason suddenly stopped to report
for work commencing on 1 November 2014] allegedly instructed Complainant to refer
the alleged violation of Comcast Zero Tolerance Policy by Diosdado Remion and seek
assistance from the Human Resources Department and the Quality Team are nothing
but hearsay, uncorroborated, and untrustworthy. It deserves scant consideration
because Respondents are unable to proffer any evidentiary support of this alleged
instruction of Kuan.

Indeed, the production or suppression of the following documents by

Respondents open the avenues for speculations and suspicions:

[a] Result of Focus Group Discussion (FGD) alleged to have been conducted on
13 November 2014. The alleged respondents/interviewees are agents of
Complainant himself who, without a tinge of doubt, will posture protectiveness of
Respondents interest for fear of retaliation and backlash;

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 [b] Team Performance vs. Goal result which, similar to the FGD result, was never
discussed with or divulged to Complainant by Respondent Reyes;

[c] Formal acceptance of resignation letter of Complainant on 18 December

2014 by Respondent Reyes [marked Annex 8 in Respondents position paper].
Obviously, it would be preposterous for Complainant to send his resignation
letter to Respondent Reyes via two modes [please refer to paragraph #12
hereof] if Respondent Reyes truly and formally accepted the resignation letter
allegedly hand carried by Complainant on 18 December 2014;

[d] Suppression of Complainants verified medical certificates for the purpose of

illegally withholding Complainant salaries; and

[e] Suppression of documents marked Annex C and Annex D hereof.

It is here that the following, the teaching from De Leon vs. Juyco, [G.R. No. L-46153,
June 5, 1942], citing I Wigmore on Evidence, sec. 277, pp. 566-568, finds relevancy,
viz:

"A party's falsehood or other fraud in the preparation and presentation of his
cause, his fabrication or suspension of evidence by bribery or spoliation, and
all similar conduct, is receivable against him as an indication of his
consciousness that his case is weak or unfounded, and from that
consciousness may be inferred the fact itself of the cause's lack of truth and
merit."

WHEREFORE, premises considered, it is hereby respectfully prayed that

the foregoing Reply to Respondents Position Paper be given due credence and
consideration and the reliefs prayed for in the Complaint and Complainants Reply be
granted.

Finally, Complainant respectfully prays for such and other reliefs as may be
deemed just and equitable under the premises.

Quezon City, Metro Manila, August 17, 2015.

ARVIN A. PASCUAL
Complainant

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Republic of the Philippines)
: s.s
Quezon City )

VERIFICATION

I, Complainant in the instant case, under oath, depose and say:

1. That I have caused the preparation of the foregoing Reply to Respondents

position paper ;

2. That I have read and understood the contents thereof; and

3. That the allegations therein are correct and true to the best of my own
knowledge and belief and based on authentic records.

ARVIN A. PASCUAL
Complainant/Affiant

SUBSCRIBED AND SWORN to before me, this 17th day of August 2015, in
Quezon City, Metro Manila, Affiant exhibiting to me his Drivers License No. 2-93-
203385 (Expiration Date on July 20, 2016) issued by the Land Transportation Office.

____________________
Administering Officer

Copy furnished:

ATTY. JOSE GERARDO F.C. VILLACARLOS

INES & VILLACARLOS LAW OFFICES
Madrigal Business Park, Alabang
Muntinlupa City

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