Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VII

Hon. Jermelina Pasignajen-Ay-ad

Labor Arbiter

JAY FROILAN SUAREZ,

complainant
Versus NLRC-RAB-VII-08-880-18
LUMAPAS BLANCO LAW OFFICE,
respondent
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POSITION PAPER
FOR THE COMPLAINANT

COMES NOW the complainant, through counsel, and to

this Honorable Office, most respectfully submits this reply to
Respondents Position Paper, thus avers that:

Prefatory Statement
The Constitution provides that the State shall afford full
protection to Labor. It shall guarantee the rights of all workers
to self-organization, they shall be entitled to security of
tenure, humane conditions of work, and a living wage.

In the exercise of management prerogative, an employer

must ensure that the polices, rules and regulations on work-

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related activities of the employees must always be fair and
reasonable and the corresponding penalties, when prescribed,
commensurate to the offense involved and to the degree of
the infraction. Workers are entitled to substantive and
procedural due process before suspension or termination.

Contrary to the prefatory statement manifested

by the respondent, the case of Merin vs National Labor
Relations Commission invoked is not totally applicable
to the instant case.

The above-mentioned case involves an erring

employee who, despite of the sanctions imposed upon
him, he continued to commit misconduct and exhibit
undesirable behavior in preforming his assigned task.
It is not applicable to the case of Mr. Suarez, in which,
the latter was never penalized and did not commit
previous infractions against the respondent as his
employer.

It is undisputable that the employer cannot be

compelled to retain a misbehaving employee, or one
who is guilty of acts inimical to its interest. However, if
the employer cannot make a manifestation proving by
means of concrete basis that the employee had
committed serious infractions, suspension or
termination is improper to be imposed.

DETERMINATION OF PROPER IMPOSABLE

PENALTY IS A RECOGNIZED MANAGEMENT
PREROGATIVE

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 The Respondent averred that the complainant
had committed three instances of serious offenses
punishable by the Discipline Policy and Table of
Offenses imposed by the management.

“Every employee of Lumapas Blanco Law Office

has a stake in the future of the company since
everyone is proudly given the responsibility to actively
take part in the daily business dealings of the
Company. With the responsibility given comes the
expectation that everyone should manifest
Stewardship and Professionalism in the way he/she
executes his/her respective function. We all must
demonstrate a sense of urgency, discipline,
accountability, judgment, and initiative, economic and
critical thinking skills necessary to generate the
greatest contribution to the company. All acts, which
hinder our pursuit of excellence and put the Company
at risk or in a bad light are inconsistent with this value
and are therefore subject to appropriate penalties
stated herein.

xxx xxx xxx

8. Sleeping or Serious 1st Offense:
napping on Final Written
the job Warning
2nd Offense:
Suspension
3rd Offense:
Termination”

Under the doctrine of Reasonable

Proportionality Rule, the exercise of its management
prerogative, an employer must ensure that the
policies, rules and regulations on work-related
activities of the employees must always be fair and

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reasonable and the corresponding penalties, when
prescribed, commensurate to the offense involved and
to the degree of the infraction.

As a contrary, the respondent failed to give a

proportional penalties of the offense allegedly
committed by the complainant. The antecedent
manifested by the respondent shows that a notice to
explain was sent to the complainant but instead of
waiting for the answer, the complainant was
suspended for three (3) days from October 27, 2016
until October 29, 2016. The imposition of such
suspension is clearly abusive and excessive.

NAPPING OR SLEEPING BY THE EMPLOYEE

BEYOND THEIR NORMAL HOURS OF WORK
IS NOT PUNISHABLE

The respondent enumerated the following

incidents allegedly committed by the complainant:
1. 11 April 2017 incident – an incident report by
the shift supervisor Mary Gracia Helhida, and
witnessed by Dawn Letigio and Chari Tetia, stated
that Jay Suarez and Henry Suerte were sleeping
during working hours on April 11, 2017, at around
9:39 PM. Jay Suarez was at the conference room.

2. 12 April 2017 incident – an incident report by

the shift supervisor Hyde F. Hornez, and
witnessed Chari Tetia, stated that Jay Suarez was
caught once again sleeping in one of the rooms at
around 12:00PM. When asked why he was there,
Mr. Suarez said that he was just sitting down
since there were no clients. This, however, is not
supposed to be in the rooms not unless they are
sick and need to rest. It was reported that
complainant showed no respect to his superior

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 and was even requested that he should be pulled
out from Lumapas Blanco Office.

3. 18 October 2016 incident – at around 11:20 of

this day, Jay Suarez was caught sleeping inside
the conference room during working hours. It was
further reported that it was clearly stated in the
table of offenses and penalties that there will be
no sleeping during working hours. On this note, a
notice to explain was sent to complainant, who
was in turn suspended for three days from 27
October 2016 to 29 October 2016.

The above-mentioned incidents involve an

allegation of serious offenses allegedly committed
by the complainant for sleeping on the job. In
connection to the incidents, the complainant
cannot be penalized for sleeping beyond his
working hours. Considering that the complainant
was working in a private establishment, it is still
irregular to require their employees to perform
duties beyond their normal hours of work which
is 8:00 am to 5:00 pm, unless the employee is
paid for overtime work duly permitted by the
employer. Law Offices like the respondent’s office
normally requires to their employees an eight-
hour working period.

Under 87 of the Labor Code, it provides that:

Work may be performed beyond eight (8) hours a day
provided that the employee is paid for the overtime work an
additional compensation equivalent to his regular wage plus at
least twenty-five percent (25%) thereof.

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 In addition, it is highly improper for the
respondent-employer to determine that the act of
sleeping made by the complainant beyond his
normal hours of work is a serious offense. An
offense cannot be considered serious, unless it is
grave and aggravated character and not merely
trivial or unimportant. An employer cannot
oblige their employees to perform duties outside
or beyond the required hours of work, unless it
was agreed by the employer and employee fixing
the required working hours but not to exceed
eight hours prescribed by the Labor Code.

Therefore, sleeping of an employee during

night time and during meal period, when they are
no longer required to render duty is not
punishable by any policy, rules or regulation.

Under Article 83 (1) of the Labor Code:

ART. 83. NORMAL HOURS OF WORK – The normal
hours of work of any employee shall not exceed eight
hours a day.

EMPLOYEES ARE ENTITLED TO

A MEAL PERIOD NOT LESS THAN
SIXTY (60) MINUTES

Based on the allegations made by the respondent,

the complainant was caught sleeping inside the
conference room at around 11:20 AM or prior to the
allowed time for lunch break. Punishing an employee
who will take a nap or sleep briefly during the time they

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are about to take their lunch is not an equitable
punishment. Employees are given not less than sixty
minutes’ time-off to take their regular meals.

Under Article 85 of the Labor Code:

ART. 85. MEAL PERIODS – Subject to such regulations as
the Secretary of Labor may prescribe, it shall be the duty of
every employer to give his employees not less than sixty (60)
minutes time-off for their regular meals.

It is unjust to suspend the complainant merely

because he was caught sleeping during the time he is
about to take his lunch at 11:20 am. He can justify his
action by rendering or resuming work at 12:20 PM or
at any time not more than the required sixty-minute
meal period. The punishment meted out appears to be
too harsh and excessive.

DUE PROCESS OF LAW APPLICABLE

FOR TERMINATION AND SUSPENSION

Article III, section 1 of the 1987 Constitution

provides that:
No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.

In termination, the law requires the employer

to give the worker two written notices before
terminating his employment, namely:
1. A notice charging the employee of the
particular acts or omissions that may cause his
dismissal; and
2. The subsequent notice which informs the
employee of the employer’s decision.

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 In suspension, it must be based on a valid or
just cause, and the employee must be appraised of his
alleged violation and given an opportunity to explain
his side. In other words, both substantive and
procedural due process that are being required for
termination of employment should be observed. And
where the employee denies the charge, the burden of
proving that there is valid ground for suspension, as in
termination, rests on the employer.

The complainant respectfully submits that the

required due process was not properly observed
insofar as October 2016 incident is concerned. Even a
notice to explain was sent to the complainant, it turned
out that the complainant was immediately suspended
for three (3) days, in which it is not supposed to be the
proper penalty. The respondent should have observed
ample time to wait for the answer.

The required due process was not properly

observed when the representative of the Respondent
Ms. Josephine Annie M. Yu asked the complainant to
go home instead of sending another notice to inform
the latter why he should not be penalized.

THE CASE IS NOT AN ILLEGAL DISMISSAL

BUT A CONSTRUCTIVE DISMISSAL

Constructive dismissal is a dismissal in disguise.

The complainant was constructively dismissed from
his employment. The return to work order issued by
the management of the Respondent’s office signifies

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 unreasonable reassignment of work, or an
unwarranted transfer of work place from his current
office to another office instead of terminating him
directly. It is clear that the respondent wanted to
terminate the employment of the complainant by
imputing fabricated allegations, and malicious
imputations. There is a clear intention of
discrimination and motivation with hidden desire to
expel the complainant from his employment.

In the case of Jo Cinema Corporation vs. Abellana,

the Supreme Court held that:
Constructive dismissal is defined as quitting because
continued employment is rendered impossible, unreasonable or
unlikely, as an offer involving demolition in rank and a
diminution in pay.

THERE IS NO PREMATURE
FILING IN THIS CASE

One of the allegations of the respondent is the

premature filing of the complainant.
It is a well-settled doctrine that the filing of a
complaint for illegal dismissal is not limited to money
claims in which Article 306 does not apply. The
prescriptive period for illegal dismissal shall be
governed by Article 1146 of the Civil Code and shall
prescribe within four (4) years upon an injury to the
rights of the plaintiff.
The complaint was filed by the complainant on
April 28, 2017. Thus, it is not premature since the
constructive dismissal occurred prior to that date. In
other words, the injury or deprivation of his rights over
his employment happened before he opted to file a

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labor complaint. (Callanta vs Carnation Philippines
Inc.)

A CONSTRUCTIVELY DISMISSED EMPLOYEE

IS ENTITLED TO A SEPARATION PAY.

It is a truism that, an employee who is

constructively dismissed is deemed illegally dismissed
from his employment. The reliefs mentioned in Article
294 of the Labor Code that are available to employees
whose dismissals have been expressly declared by the
employers should likewise be available and awarded to
constructively dismissed employees. Should
reinstatement prove to be impossible, impracticable or
no longer to the best interest of the parties, separation
pay in lieu thereof.
Article 294 of the Labor Code provides that:
In cases of regular employment, the employer shall not
terminate the services of an employee except for a just cause
or when authorized by this Title. 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 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.

PRAYER

WHEREFORE, pursuant to the foregoing facts and

laws, herein complainant respectfully prays that he be
awarded of separation pay on the following grounds:

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 1. That he is deprived of his earning capacity;
2. That he was constructively dismissed from his
employment;
3. That reinstatement is no longer possible due to
the hidden intent of the respondent to expel the
complainant.

Furthermore, complainant prays that separation pay

be awarded in his favor in the amount of Fifty
Thousand pesos (50,000.00) together with the
appropriate damages.

Other reliefs as may be deemed just and equitable in the

premises are likewise prayed for.

Most respectfully submitted.

Cebu City, Philippines 12 July 2017

3rd Floor, Body tune Building,

Likay-likay St., Kinasang-ang, Pardo, Cebu City,
Philippines 6000
Tel. No. (032) 262-1123

By:
ATTY. LONIE S. CABRERA
Counsel for the Complainant
Attorney’s Roll No. 49910
MCLE EXEMPT
IBP No. 33467678, issued on January 10, 2017
(for2017)
PTR No. 66522211, issued on January 10, 2017
(for 2017)

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