Sample Position Paper in a labor case (2022)

This is a sample Position Paper in a labor case prepared by our law office. We are sharing the same for research purposes of our readers and followers.

REPUBLIC OF THEPHILIPPINES

DEPARTMENT OFLABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION

NATIONAL CAPITAL REGION

PPSTA BLDG.,BANAWE AVE., QUEZON CITY

OFFICE OF LABOR ARBITER x x x

ROOM 311, 3RD FLOOR, PPSTA BLDG.

X x x x,

Complainant,

NLRCRAB NCR

-

Versus - CASE NO. NCR-

X x x.

X x x , INC.

X x x; AND

X x x,

Respondents.

x-------------------------------------------------------x

POSITION PAPER

FOR THE COMPLAINANT

WITH

URGENT EX PARTE MOTION

FOR PRODUCTION, INSPECTION AND EXAMINATION OF THE “201 FILE” (PERSONNEL FILE) OF THE COMPLAINANT IN THEPOSSESSION OF THE RESPONDENTS

TheCOMPLAINANT, pro se, respectfullystates:

I.

STATEMENTOF FACTS

1.

Thecomplainant is XXX XXX XXX, 44 years old, Filipino, and residing at x x x.

2.

Thethree respondents in this case are the following:

(a) XXX XXXAND XXX, INC. (corporate employer);

(b) Ms. “Xxx”Xxx, VP for HR Business Partner –Gaming (now the Vice President – Human Resource Department); and

(c) Mr. Xxx Xxx,Chairman of XXX. They hold office at the Executive Offices, XXX XXX, xxx Ave., xxxCity, xxx, xxx City.

3.

Hisposition in the company was xxx Supervisor.

4.

Hewas hired by the company on January 7, 2013.

5.

Hestarted with a Gross Annual Salary of P937,107.69.He was paid a Gross 13th Month Pay of P78,092.31 per annum. Hissalaries were paid to him every 15th and 3oth day of the month (with the “cut off” dates of 5th dayand 2oth day of each month). He started with a monthly P84,600.00.

6.

Hislatest monthly salary amounted to P85,431.90/month (as ofMay 8, 2015).

7.

Hewas provided the following benefits during his tenure:

a.

Rice Subsidy – one sack/month. Its value was converted to cash at P1,000/month.

b.

Service Charge – latest amount thereof as of May 2015 was P2,993.13/month.

c.

Paid leave credits of twentyfive (25) days/annum.

d.

Free meals (once per duty day).

e.

Health insurance – for himself and one of his children (Bill Cameron E. Xxx, 17 years old[2015], student of Far Eastern University, BS Psychology).

f.

Life insurance – with a facevalue of P280,000.00.

8.

Seethe following documents in support of the foregoing statements:

·

Annex “A”- EMPLOYMENT OFFER, dated November

23,2012;

·

Annex “B”– COMPUTATION OF ANNUAL INCOME

AND WITHHOLDING TAX AS OFTHE YEAR 2015.

9.

Ina Letter, dated January 28, 2014, issued by Mr. xxx xxx, Chief OperatingOfficer and President, for his“valuable contributions” to the company, he was given a BONUS based onhis base pay as of September 30, 2013. It was released on installment basis. Itwas subject to certain conditions stated in the said Letter.

A copy of the said Letter,dated January 28, 2014, is attached as Annex“C” hereof.

10.

The complainant was a regular employee of therespondent company when he was terminated on May 8, 2015 havingserved it for more than one year as of that date.

11.

Hewas imposed the following penalties for TARDINESS:

(a)

On March 15, 2014, a WARNING was annotated by the PitManager in the complainant’s record in the TEAM TRACK, where the dailymonitoring of deviations and commendations of employees are encoded).

Asshown in a Notice to Explain, dated 11April 2014, issued by the Human Resource xxx – xxx Department headed by respondentXxx Xxx, the complainant was penalized for twelveinstances of tardiness, the dates of which were stated in the said Notice(between the period March 12, 2013 toFebruary 19, 2014).

TheNotice cited Sec. VI, Article XX (Punctualityand Attendance 15A) of the TEAM MEMBER CODE OF GOOD BEHAVIOR (TMCGB).

Pursuantto the said Notice, he submitted to the office of the respondent Xxx Xxx one originalcopy of his handwritten EXPLANATION (He did not prepare an extra file copy forhimself).

SeeAnnex “D” – NOTICE TO EXPLAIN, dated11 April 2014.

(b)

On May 7-9, 2014 he was SUSPENDED FOR THREE DAYS. Hehad misplace his copy now of the suspension order.

©On July 13-18, 2014 he was SUSPENDED FOR SIX DAYS. He had misplace his copy nowof the suspension order. Some of histardiness before such suspension were caused by the street blockage due to theon-going construction and/or improvement of the road where the Casino waslocated.

In the earlypart of 2015 some of his tardiness were caused by the heavy traffic due to thepapal visit of Pope Francis.

After his six-day suspension on July 13-18, 2014, herecall that he was late only once, i.e., January15, 2015.

On May 8, 2015 at about 2:00 PM to 4:00 PM the complainant was ABRUPTLY AND VERBALLY DISMISSED FROMEMPLOYMENT by the respondent Xxx Xxxin the presence of his immediatesuperior xxx xxx (xxx Manager) inside the room of Xxx Xxx.

(He recall that he had only one or two tardiness before May 8, 2015).

He was then on duty from 7:00AM to 3:00 PM.

He was sequestered by Xxx Xxx inside her room.

He was threatened and forced by Xxx Xxx to IMMEDIATELY RESIGN.Otherwise, she would TERMINATE him (that would surely affect his futureemployments in other entities, if any).

No prior notice to explain was issued to him.

No formal charge was filed against him.

No administrative hearings (due process and opportunity to be heard)were held to discuss the problem, resolve it amicably, and hear his side. Hisconstitutional right to due process of law was violated.

No lawyer for company was presentto explain the situation from the point of view of Labor Law.

(Video) Ano ang mga Nilalaman ng Position Paper sa isang Labor Case?

He was not given the chance to confer with a lawyer of his choice.His constitutional right to counsel was violated.

He was not allowed to conferwith his wife who was also employed in XXX.

For two hours he was forced to stay inside the room of therespondent Xxx Xxx and/or within its immediate premises inside the HR area nearthe room od Xxx Xxx. He was treated like a prisoner.

Inside the room of respondent Xxx Xxx he begged her for three daysto think about the former’s order for him to issue immediately on the spot ahandwritten resignation letter.

Xxx Xxx denied the request. She forced him to write on the spot ahandwritten resignation letter. She threatened him with TERMINATION.

He was not allowed to go tohis locker to get his mobile phone to call his wife to confer with her.

He was not allowed to go tothe toilet.

He was not allowed to call up a lawyer.

He was not read the charges against him, if any.

Neither was there a notice of decision dismissing him fromemployment.

Only after two hours of forcible sequestration inside the room ofthe respondent Xxx Xxx was he allowed to go home.

12.

As instructed, after three days, he returned to the office of the respondent XxxXxx (May 11, 2015 or thereabout) to turn over to her staff over a copy of his TMCGB(employees manual), xxx xxx MANUAL, and his health insurance card.

(He was unable to turn overto the HR staff the health insurance card for his child xxx Xxx because the complainanthad misplaced it at that time. Hence, we was charged P200.00 for such loss).

The HR staff gave him thecontact numbers of the staff COMPENSATION AND BENEFITS (COMPENBEN) Office,which was also under the HR Dept., to follow up his receivable salaries andother employee benefits, namely xxx xxx with Tel. No. xxx. and xxx with MobileNo. xxx.

He was told by the HR staffto call from the said COMPENBEN staff after three or four months.

13.

RECEIVABLESALARIES AND OTHE REMPLOYEE BENEFITS

The receivable salaries andother employee benefits of the complainant as of May 8, 2015 (date of illegaltermination) were as follows:

·

Salaries for three days - P9,826.03;

·

Unclaimed leave credits goodfor 4.5 days - P14,739.05;

·

Service charge - April 2014 - P1,210.32;

·

Service charge - May 2014 -P2,993.13;

·

Refundable income tax - P25,189.07.

The total of the foregoing items was P53,357.60.

Per company policies, the companyDEDUCTED the amount of P88,417.11 from the receivablesof the complainant, broken down as follows:

·

Phase 1A bonus - P30,889.11; and

·

Loyalty bonus = P57,528.00.

He was told he still had to pay the company the net amount of P35,059.51.

(Refer to Annex “B”,supra).

When the complainantreviewed the figures, it appears that the respondents overcharged thecomplainant by P7,809.39representing taxes on his 13t month pay for 2014 and the first five months of2015. (See Annex “B-1”).

14.

Sometimein August 2015, the complainant called up COMPENBEN five times. He was told nocompany action has been done yet.

Sometime September 2015 hecalled up the said office six times. He was told no company action has beendone yet.

Sometime in October 2015 he called up again the said office. Thistime, he was told he was still “NEGATIVE”.

He was being ordered to pay thecompany P35,059.51 before he could be cleared and his Certificate of Employmentreleased to him.

15.

As earlier stated, his wife xxx xxx isemployed with the corporate respondent Xxx. Her position is that of a “xxx Manager 2 – xxx”. She startedworking with the company in November or December 2012 or thereabout up to the present time.

16.

The complainant applied with xxx xxx xxx (a new xxx company to be opened in December2016 or thereabout) for the position of xxxx SUPERVISOR – xxx for a (reduced) salaryP45,000.00/month.

He was supposed to be hired by the said company in Oct 2016 orthereabout. But he could not get his CERTIFICATE OF EMPLOYMENT (COE) from therespondent Xxx unless he would first pay the company the amount of P35,059.51that it was demanding.

On October 5,2016 the complainant sought the legal assistance of the Single Entry Approach (SEnA) of this HonorableCommission. It issued a notice of conference dated October 5, 2016 to therespondents. It set the mediation on October 19, 2016 at 10:00 AM. No compromise was reached. The respondentswere then represented by Atty. xxx.

See the following documents asproofs thereof:

·

Annex “E” - NOTICEOF CONFERENCE, dated October

5, 2016.

·

Annex “F” - MINUTES OF CONFERENCE, dated

October19, 2016; and

·

Annex “G” - REFFERAL, dated October 26, 2016.

17.

The complaint was thus referred filed withthis Honorable Commission. It wasraffled to the Honorable Labor Arbiter xxxxxx. See the following documents:

·

Annex “H”– COMPLAINT, dated October 26, 2016.

·

Annex “I”– MINUTES, dated November 11, 2016.

18.

Nocompromise was reached at the office of the labor arbiter. Thus the Arbiterordered the parties to file their respective position papers on November 29, 2016.

19.

The complainant has written the HR Departmentof the respondent company to provide him with a complete copy of his 201 File(Personnel File) because he would need its contents to support his positionpaper.

The HR staff xxx xxx simply received itwithout any favorable action. He made an annotation thereon that the said 201File of the complainant had been “pulled out”. By whom, towhom forwarded, and for what purpose, he did not state. Only the birthcertificate and transcripts of schools records were given to the complainant.

See Annex“J” – LETTER of the complainant dulyreceived by HR-CompenBen Staff Jerson Balandra on November 17, 2016.

20.

For whatever legal purposes it may serve,considering that the credentials of the complainant are relevant to hisposition paper, he is attaching herewith his BIODATA, TRANSCRIPTS OF SCHOOLRECORDS, AND DIPLOMA marked as Annex “K”with submarkings.

21.

To prove his good pastemployment performance and status, attached hereto are copies of various certificates of service/employment andtestimonials issued by his previous employers from 1994 to 2012 (x x x, x x x , x x x x, x x x )marked as Annex “L withsubmarkings.

22.

His NationalBureau of Investigation (NBI) Clearance (valid until September 21, 2017) isattached as Annex “M” hereof toprove his good moral character.

23.

Thefamily home of the complainant in x x x xwas foreclosed by the xxx Bankof xxx City in January or February 2015 or thereabout. Due to the illegaldismissal of the complainant on May 8, 2015, he was unable to save enough fundsto REDEEM the property within the one-yearredemption period.

Theycontinue to suffer financial difficulties to support their three young children,two of whom are students and the youngest isonly two years old.

Theirfamily life and psychological well-beingas a family have been terribly traumatized, tortured, disturbed,inconvenienced, and shamed to this very day.

This is one reason that nullifies theaccusation of the respondents that the complainant had allegedly resigned voluntarily. Who would resign from his well-paying job amidst his unpaid mortgageloan in the bank?

To prove the foregoing statement, see thefollowing annexes:

·

Annex “N”with submarkings – LETTER, dated November 21, 2016, to xxx Bank asking fora certification to prove the foreclosure of their family home.

·

Annex “O”with submarkings - xxx Bank records oftheir mortgage loan, copy of the land title of the foreclosed family home, andproof of foreclosure of their family home (whichhe hopes to secure on November 28, 2016, if time allows).

The illegal actsof the respondents cause the complainant extreme psychological trauma andanxieties, sleepless nights, besmirched reputation and social humiliation. Hedeserves an award of MORAL DAMAGES of P500,000.00, pursuant to the Civil Code.He likewise deserves an award of EXEMPLARY DAMAGES of P500,000.00 to serve as alesson to society, pursuant to the same Code. Further, he deserves an award ofattorney’s fees equivalent to TenPercent of the damages awarded, pursuant to the Labor Code.

II.

ISSUE

The sole issue is whether or not the complainant is entitled to thereliefs prayed for in his complaint on the ground of illegal dismissal, that is, reinstatement, backwages, money claims, and moral and exemplarydamages, and attorney’s fees.

III.

(Video) Steps on how I file my Position Paper at NLRC office after receiving from PAO (DOJ Bldg.)

DISCUSSION

24.

A copy of the relevant parts of the TMCGB (employees’ manual/handbook) isattached as Annex “P” hereofwith submarkings.

Article X of the TMCGB contains the DUE PROCESS PROCEDURE of therespondent company.

The respondents violated theprovisions or steps described hereinbelow.

Step One refers to the Counselling Procedures:

(a)

The supervisor shall personally inform the employee of the deviation.

(b)

A productive counselling and discussion shall be held.

(c)

Agreements shall be documented in a “behavior contract” (Team Member Improvement Plan [TMIP]).

(d)

The employee shall submit a TMIP (a commitment to improve).

(e)

The TMIP shall be signed by the supervisor and the employee.

(f)

The supervisor shall assist the employee to improve within a 30-day period.

(g)

Counselling shall be done.

(h)

The supervisor shall note the proceedings in his logbook.

It is assumed that the TMIP and other related documents shall formpart of the 201 File of the employee.

Step Two refers to the procedures for Written Explanation:

(a)

The supervisor requires the employee to submit a written explanationwithin forty eight hours from the occurrence of the deviation.

(b)

A “show-cause memo” will be issued.

(c)

There shall be a “fairhearing”.

(d)

Failure to submit a written explanation is deemed a waiver of one’s rightto be heard.

It is presumed that theforegoing proceedings are documented in the 201 File of the employee.

StepThree refers to the procedures for FACT-FINDING BY IMMEDIATE SUPERVISOR (not by the Vice President for HumanResource Department headed by respondent Xxx Xxx).

(a)

The employee files the written explanation.

(b)

The supervisor gathers the facts “with HRD assistance”.

(c)

He makes the recommendations (presumably to the HR Dept. and to theemployee).

(d)

The employee is given an“AMPLE OPPORTUNITY TO BE HEARD” during the fact-finding exercise by thesupervisor.

(e)

There shall be anADMINISTRATIVE HEARING where the imposable penalty is DISMISSAL.

(f)

The supervisor may do the fact-finding with the representative of theemployee. (It presupposes the employee must be notified of such a right).

(g)

The supervisor then submits his recommendations to his next-levelsuperior. He uses the “Notice ofCorrective Action” for the purpose.

(h)

The next-level superior reviews the recommendation. He will forward hisfindings to the HR xxx (i.e., respondent Xxx Xxx).

(i)

The “HRA” evaluates the findings/recommendations.

(j)

She endorses the same to the Department Head of the employee.

(k)

The Department Head decides within twenty four hours from receipt ofthe findings/recommendations.

(l)

The MINUTES OF THE MEETINGSshall be duly signed and made available to all concerned (presumably, includingthe employee) within twenty four hours.

It is presumed that theforegoing proceedings are documented in the 201 File of the employee.

Step Four refers to APPEAL PROCEDURE.

(a)

Within 15 days from receipt of the Decision of the Department Head (notthe respondent HR Business Partner, Xxx Xxx) the employee may submit an APPEALto the TEAM MEMBER BEHAVIOR ACTIONREVIEW PANEL (again, not the HR Business Partner, respondent Xxx Xxx).

(b)

The said Panel is convened by the MANAGEMENT.

It is presumed that theforegoing proceedings are documented in the 201 File of the employee.

Step Five refers to the TEAMMEMBER BEHAVIOR ACTION REVIEW PANEL.

(a)

The Department Head recommends the referral of the issue to the TEAM MEMBER BEHAVIOR ACTION REVIEW PANEL.

(b)

The referral is addressed to the HR Business Partner (respondent Xxx Xxx).

(c)

The HR Business Partner convenes the Panel.

(d)

The Panel shall be composedof the HR Business Partner as the presiding officer, the Division Head as thedeputy presiding officer, the Security Director, one Neutral Manager, and theVice President for Human Resource and Administration (HRA).

(e)

The Panel shall be “duly constituted” in writing.

(f)

It shall conduct a “thoroughfact-finding”.

(g)

It shall submit its recommendations within five working days from dateof constitution.

(h)

The legal/constitutional rightsof the employee shall be respected during this whole process.

(i)

If the penalty imposed on an employee with a rank lower than Directorposition is DISMISSAL, it is subject to JOINT AUTOMATIC REVIEW by the VicePresident for HRA and the Chief Operating Office (COO).

(j)

The Panel decides by consensus.

(k)

The dissenting opinionswithin the Panel shall be in writing.

It is presumed that theforegoing proceedings are documented in the 201 File of the employee.

Article XI refers to the graduated scale of penalties from CORRECTIVEACTION/DECISION, CORRECTIVE COUNSELLING (CODE: CC), WRITTEN WARNING (CODE: WW),SUSPENSION (CODE: S), AND DISMISSAL (CODE: D).

The graduated scale of the penaltyof SUSPENSION ranges from THREE DAYS TO THIRTY DAYS.

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DISMISSAL is the worst of all the penalties. It is xxxed to onlyafter a “THOROUGH FACT-FINDING HAS BEEN DONE.”

The TMCGB empowers the DepartmentHead, Division Head, Vice President – Human Resources and Administration(respondent Xxx Xxx), and xxx (respondent Xxx Xxx) to DISMISS an employee and asupervisor.

This power presupposes the prior observance of the DUE PROCESS rulesstipulated in the TMCGB, supra.

A written NOTICE OF CORRECTIVE ACTION shall be served on the employee.

Article XIV refers to the DOCUMENTATION of the disciplinary process.Complete reports are required. This means the 201 File of the employee must befurnished copies of all relevant documents.

Article XV refers to the PRESCRIPTIVE PERIOD OF RECORD KEEPING.

The prescriptive period is two years for penalties of threeto fifteen days suspension and threeyears for penalties of sixteen to thirty days suspension. A subsequent deviation during theprescriptive period stops therunning of such prescriptive period forthe preceding deviation. (Thisprovision appears to be unconstitutional for being violative of substantive dueprocess and for being unreasonable). The running of the new prescriptive periodis based on the “latest deviation”.Habituality negates the effects of prescription.

Article XVIII refers to SUMMARY PROCEEDING IN LIEU OF FACT FINDING.

Summary proceeding is INAPPLICABLE to cases where the imposablepenalty is LESS THAN DISMISSAL. Thiscovers TARDINESS cases.

For purposes of PREVENTIVESUSPENSION (which is irrelevant in this case), no fact-finding is needed (andit may be immediately imposed) IF: “committed in the presence of two or morewitnesses”; “deviation is serious and evidence of guilt is strong”; employee is“convicted by final judgment” in any court; “multiple offender”; and“notoriously undesirable or dangerous.”

ARTICLE XX refers to the TABLE OF OFFENSES AND PENALTIES

.

Per Rule 15 (Tardiness, Undertime, Overtime and Breaks) of Part VI (PUNCTUALITY AND ATTENDANCE) ofArticle XX of the TMCGB (Page 64) the penalties are as follows:

(a)

Reporting for work late for threetimes corresponds to one violation.

(b)

The “reckoning is PERCALENDAR BASIS”.

(c)

For the first violation (threeincidents of tardiness in one calendar year) the penalty is CORRECTIVECOUNSELLING.

(d)

For the second violation (six incidents of tardiness in one calendar year) the penalty isWARNING.

(e)

For the third violation (nine incidents of tardiness in one calendar year) the penalty isthree days suspension.

(f)

For the fourth violation (twelve incidents of tardiness in one calendar year) the penalty issix days suspension.

(g)

For the fifth violation (fifteen incidents of tardiness in one calendar year) the penalty istwelve days of suspension.

(h)

For the sixth violation (eighteen incidents of tardiness in one calendar year) the penalty isthirty days suspension.

(i)

For the seventh violation (twenty one incidents of tardiness in one calendar year) the penalty isDISMISSAL.

25.

As earlier stated in Paragraph 11, supra, aftera six days suspension, the complainant was abruptly and illegal DISMISSED onMay 8, 2015.

“x x x.

FIRST VIOLATION

As shown in a Noticeto Explain, dated 11 April 2014, issued by the Human Resource BusinessPartner – Gaming Department headed by respondent Xxx Xxx, the complainant was penalizedfor twelve instances of tardiness,the dates of which were stated in the said Notice (between the period March 12, 2013 to February 19, 2014).The Notice cited Sec. VI, Article XX(Punctuality and Attendance 15A) of the TEAM MEMBER CODE OF GOOD BEHAVIOR (TMCGB).To his recollection, the penalty of CorrectiveCounselling (CC) was imposed on him. Hedoes not recall having been issued a memorandum of WARNING. Pursuant to thesaid Notice, he submitted to the office of the respondent Xxx Xxx one originalcopy of his handwritten EXPLANATION(no file copy for himself).

See Annex “D”– NOTICE TO EXPLAIN, dated 11 April 2014.

The complainant he assumes it was a CORRECTIVECOUNSELLING penalty.

SECONDVIOLATION

In the middle of 2014 or thereabout he was issueda memorandum of WARNING. He has no copy nowthe WARNING document .

THIRD VIOLATION

In November or December 2014 or thereabout hewas SUSPENDED FOR THREE DAYS. He has nocopy now of the document showing such suspension.

FOURTH VIOLATION

In March 2014 or thereabout he was SUSPENDED FOR SIXDAYS. He has no copy now of the document showing such suspension.

NOTE: Some, if not many, of the TARDINESS of thecomplainant were caused by the heavy traffic due to the prolonged CONSTRUCTION and/orIMPROVEMENT of the street where the xxx was located (with cranes and heavyequipment on the road) and the long papal visit of POPE FRANCIS in early 2015.

ABRUPT DISMISSAL

On May 8,2014 at about 2:00 PM to 4:00 PM the complainant was ABRUPTLY AND VERBALLY DISMISSED FROM EMPLOYMENT by the respondent Xxx Xxx in the presence of his immediate superior xxx xxx (xxx ShiftManager) inside the room of Xxx Xxx.

He was then on duty from 7:00 AM to 3:00 PM.

He was sequestered by Xxx Xxx inside her room.

He was threatened and forced by Xxx Xxx toIMMEDIATELY RESIGN. Otherwise, she would TERMINATE him (that would surelyaffect his future employments in other entities, if any).

No prior notice to explain was issued to him.

No formal charge was filed against him.

No administrative hearings (due process andopportunity to be heard) were held to discuss the problem, resolve it amicably,and hear his side. His constitutional right to due process of law was violated.

X x x.”

26.

Article 277 of the Labor Code provides for theDUE PROCESS OF LAW:

“x x x.

Article. 277. Miscellaneous provisions. - (a) Allunions are authorized to collect reasonable membership fees, union dues,assessments and fines and other contributions for labor education and research,mutual death and hospitalization benefits, welfare fund, strike fund and creditand cooperative undertakings. (As amendedby Section 33, Republic Act No. 6715, March 21, 1989).

(b)

Subject to theconstitutional right of workers to security of tenure and their right to beprotected against dismissal except for a just and authorized cause and withoutprejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the workerwhose employment is sought to be terminated a written notice containing astatement of the causes for termination and shall afford the latter ample opportunity to be heard and to defendhimself with the assistance of his representative if he so desires inaccordance with company rules and regulations promulgated pursuant toguidelines set by the Department of Labor and Employment.

Any decision taken by the employer shall be without prejudice to the right of the worker to contest thevalidity or legality of his dismissal by filing a complaint with the regionalbranch of the National Labor Relations Commission. The burden of proving that the termination was for a valid orauthorized cause shall rest on the employer.

The Secretary of the Department of Labor and Employment may suspend theeffects of the termination pending resolution of the dispute in the event of aprima facie finding by the appropriate official of the Department of Labor andEmployment before whom such dispute is pending that the termination may cause aserious labor dispute or is in implementation of a mass lay-off. (As amended by Section 33, Republic Act No.6715, March 21, 1989).

X x x.”

27.

Article 279 of the Code provides for theSECURITY OF TENURE of a worker:

“x x x.

ART.279. Security of tenure. - Incases of regular employment, the employer shall not terminate theservices of an employee except for a just cause or when authorized by thisTitle.

Anemployee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniorityrights and other privileges and to his full backwages, inclusive of allowances,and to his other benefits or their monetary equivalent computed from the timehis compensation was withheld from him up to the time of his actualreinstatement. (As amended by Section 34, Republic Act No. 6715, March21, 1989).

Xx x.”

28.

Article 282 of the Code speaks of the justgrounds to dismiss an employee.

“xx x.

ART. 282. Termination by employer. - An employer may terminate an employment for any ofthe following causes:

(a) Serious misconduct or willfuldisobedience by the employee of the lawful orders of his employer orrepresentative in connection with his work;

(b) Gross and habitual neglect by theemployee of his duties;

(c) Fraud or willful breach by the employeeof the trust reposed in him by his employer or duly authorized representative;

(d) Commission of a crime or offense bythe employee against the person of his employer or any immediate member of hisfamily or his duly authorized representatives; and

X x x.”

29.

Thecomplainant is guilty merely of the MINOROFFENSE OF TARDINESS.

He is NOT GUILY of SERIOUS MISCONDUCT, GROSS AND HABITUAL NEGLECT, FRAUD OR WILLFUL BREACH OF TRUST, OR COMMISSION OF A CRIME AGAINST THE EMPLOYER ORHIS FAMILY OR REPRESENTATIVES.

He did not deserve the supreme sanction of DISMISSAL (more so WITHOUTDUE PROCESS OF LAW).

30.

(Video) Paano pag gawa ng Position Paper (NLRC)

In the case of CAPIN-CADIZ VS. BRENT HOSPITALAND COLLEGE, GR 187417, February 24, 2016, it was held that a worker whowas illegally dismissed is entitled to “entitledto reinstatement without loss of seniority rights, and with payment ofbackwages computed from the time compensation was withheld up to the date ofactual reinstatement.”

“x x x.

Giventhe foregoing, Cadiz, therefore, is entitledto reinstatement without loss of seniority rights, and payment of backwagescomputed from the time compensation was withheld up to the date of actualreinstatement.

Where reinstatement is no longerviable as an option, separation pay should be awarded as an alternative and asa form of financial assistance.55

X x x.

Generally, the computation ofbackwages is reckoned from the date of illegal dismissal until actualreinstatement. 59

In case separation pay is ordered inlieu of reinstatement or reinstatement is waived by the employee, backwages iscomputed from the time of dismissal until the finality of the decision orderingseparation pay. 60

Jurisprudence further clarified thatthe period for computing the backwages during the period of appeal should end onthe date that a higher court reversed the labor arbitration ruling of illegaldismissal. 61

X x x.”

31.

In the case of NEW PUERTO COMMERCIAL,ET. AL. VS. LOPEZ, ET. AL., GR NO. 1699999, JULY 26, 2010, discussed DUEPROCESS OF LAW in labor cases.

“xx x.

In order to validly dismiss anemployee, he must be accorded both substantive and procedural due process bythe employer. Procedural due process requires that the

employee be given a notice of thecharge against him, an ample opportunity to be heard, and a notice oftermination. Even if the aforesaid procedure is conducted after the filing ofthe illegal dismissal case, the legality of the dismissal, as to its proceduralaspect, will be upheld provided that the employer is able to show thatcompliance with these requirements was not a mere afterthought.

Xx x.

Intermination proceedings of employees, procedural due process consists of thetwin requirements of notice and hearing. The employer must furnish the employeewith two written notices before the termination of employment can be effected: (1) the first apprises the employee ofthe particular acts or omissions for which his dismissal is sought; and (2) thesecond informs the employee of the employer’s decision to dismiss him.The requirement of a hearing is complied with as long as there was anopportunity to be heard, and not necessarily that an actual hearing wasconducted.[14] As we explained in Perezv. Philippine Telegraph and Telephone Company:[15]

An employee’s right to be heard in termination casesunder Article 277 (b) as implemented by Section 2 (d), Rule I of theImplementing Rules of Book VI of the Labor Code should be interpreted in broadstrokes. It is satisfied not only by a formal face to face confrontation but by any meaningful opportunity tocontrovert the charges against him and to submit evidence in support thereof.

A hearingmeans that a party should be given a chance to adduce his evidence to supporthis side of the case and that the evidence should be taken into account in the adjudicationof the controversy. Xxx.

X x x.”

IV.

URGENT EXPARTE MOTION FOR PRODUCTION, INSPECTION AND EXAMINATION OF THE “201 FILE” (PERSONNEL FILE) OF THE COMPLAINANT IN THEPOSSESSION OF THE RESPONDENTS.

32.

In theinterest of fair play, the complainant hereby moves for the production, inspection and examinationof his 201 File (Personnel File), which is now being withheld by therespondents, so that he can improve his defenses and arguments based on thecontents thereof, if any. He intendsto discuss the same in his REPLY POSITION PAPER to be filed in a future hearing.

V.

MISCELLANEOUS

33.

UNPAIDOFFICIAL TIME (15 MINUTES DAILY BRIEFINGS BEFORE COMMENCING WORK). – Amiscellaneous cause of action that the complainant has alleged is his UNPAID WORKING HOURS OF FIFTEEN MINUTESDAILY WHICH THE RESPONDENTS REQUIRED ALL EMPLOYEES TO UNDERGO BEFORE COMMENCINGDAILY WORK.

He started work on January 7, 2013 and was illegally dismissed onMay 8, 2015 – or a period of two years and four months. His working hours of fifteenminutes of daily briefings for the said period were all unpaid.

34.

For the record, the complainant will file aletter with the Arbiter, copy furnished the adverse counsel, a Letter, dated November 19, 2016,stating and praying for the following:

“x x x.

RE : MANIFESTATION;XXX vs. XXX XXX, et. al.; NLRC RAD Case No. NCR-xxx.

MABUHAY:

In re: the hearing on November 29, 2016, Tuesday,10:00 AM, may I please manifest the following:

I am ready to file on November 29, 2016 at 10:00 AMmy POSITION PAPER, without prejudiceto the revival of the Compromise Negotiation.

I move for fifteen days to file my REPLY POSITION PAPER, countedfrom November 29, 2016.

Despite the filing of the said pleadings, I respectfully move to revive theCompromise Negotiation between the parties because I want to avoid a prolonged, costly and tedious litigation,considering that I have been jobless since the time I was dismissed by therespondent in May 2015.

During the last hearing on November 15, 2016, thecounsel for the respondent, Atty. Xxx Xxx tentativelyoffered me the following Compromise:

·

Three months’ separation pay;

·

Release of my unpaid receivables amounting to Fifty Thousand Pesos(P50,000.00)

·

Release of my Certificate of Employment (COE).

I hereby respectfully counter offer to therespondent, through the kind intercession of Atty. Xxx, the followingCompromise, subject to mutualnegotiation:

·

Six months’ separation pay(subject to further negotiation);

·

Release of my unpaid receivables amounting to Fifty Thousand Pesos(P50,000.00)

·

Release of my Certificate of Employment (COE).

If Atty. Xxx is empowered to decide on my foregoingcounter proposal during the next hearing on November 29, 2016, I move that the simplified Compromise Agreementbe written by the Labor Arbiter in the Minutes of the Hearing on the said date.

If Atty. Xxx will need to consult the management ofthe respondent on my foregoing counter proposal, I move that the hearing onNovember 29, 2016 be reset to thefollowing week or two weeksso that Atty. Xxx could report back to the Labor Arbiter the decision of themanagement on my counter proposal.

Thank you for your kind assistance. x x x.”

VI.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed thatjudgment be issued declaring that the complainant has been ILLEGALLY DISMISSEDby the respondents.

FURTHER, it is respectfully prayedthat the respondents be ordered to pay or issue to the complainant, as the casemay be:

(a)

BACKWAGES from the date of hisillegal dismissal on May 8, 2016 up to the time he is REINSTATED to his formerposition without loss of seniority andother benefits.

(b)

MORAL DAMAGES of P500,000.00.

(c)

EXEMPLARY DAMAGES of P500,000.00.

(d)

His RECEIVABLES representingsalaries and other benefits due him in the amount of P61,166.99 as discussed in Paragraph 13, supra.

(e)

Attorney’s fees of Ten Percent of Damages AWARDED.

(f)

Unpaid15-minute daily staff briefings for two and one-half years (January 7, 2013 toMay 8, 2015).

(g)

His CERTIFICATE OF EMPLOYMENTwhether or not he is reinstated.

FINALLY, the complainants respectfullypays for such and other reliefs as may be deemed just and equitable in thepremises.

Xxx City, November 26, 2016.

MR. XXX XXX

Complainant

Address:x x x.

SUBSCRIBEDAND SWORN TO BEFORE ME in xxx City on November 28, 2016, affiant showing hiscompetent proof of identity as follows: LTODriver’s License No. x x x.

NotaryPublic

Doc.No.

PageNo.

BookNo.

Seriesof 2016.

CopyFurnished:

Atty. Xxx Xxx

Counselfor Respondents

(Video) PAANO SUMULAT NG POSITION PAPER?| step by step guide (with English sub.)

(To be personally givenduring the

hearing on November 29, 2016at 10:000 AM)


Videos

1. Position Papers | Issues, Arguments | English A | Ate Ma'am Vlogs
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(RCC Model United Nations)
5. POSITION PAPER • VIDEO || CTIL || FINAL TASK - CYCLE 3 📚
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