Position Paper Bodollo-1

REPUBLIC OF THE PHILIPPINES Department of Labor and Employment NATIONAL LABOR AND RELATIONS COMMISSION National Capital Region Quezon City ELPIDIO PESADO BODOLLO Complainant, -versus-

NLRC CASE NO. NCR. 01-00180-19

FASTEL SERVICE INC./ANTHONY ISAIS Respondent(s). x--------------------------------------------------------x POSITION PAPER (For the Respondents) The undersigned counsel respectfully enters his appearance as counsel for respondent FASTEL SERVICE INC./ANTHONY ISAIS Henceforth, all papers, documents, notices and/or orders shall be addressed to the hereunder address of the undersigned from now on. ATTY. JORICO FAVOR BAYAUA 3/F Gonzalez Building #1888 Orense St. Guadalupe Nuevo, Makati City Tel No.(02) 750-4439 / (02) 881-7629 Respondent FASTEL SERVICE INC./ANTHONY ISAIS through the undersigned counsel and unto this Honorable Office most respectfully submits this Position Paper and further aver that: PREFATORY STATEMENTS “It is true that the Constitution has placed a high regard for the welfare of the labor sector. However, social and compassionate justice does not contemplate a situation whereby the management stands to suffer for certain misconceptions created in the mind of an employee. ( Lemery Savings & Loan Bank v. National Labor Relations Commission G.R. No. 96439, January 27, 1992, 205 SCRA 492) NATURE OF THE CASE This is a case for alleged Illegal Dismissal – Actual, Non-Payment – Separation Pay, Non-Payment – Others - PONDO, Moral and Exemplary Damages, Attorney’s Fees.

PARTIES Complainant, ELPIDIO PESADO BODOLLO of legal age, Filipino and with postal address at 104-A Bagong Lipunan Condo II, Rawiss, Tondo, Manila NCR 1013 where he may be served with notices, resolution, decision, or other processes of this Honorable Office. Respondent, FASTEL SERVICE INC a business created and existing under the Laws of the Philippines and respondent ANTHONY C. ISAIS is being sued as officer and the President of FASTEL SERVICE INC with business address at 1724-1736 A. Rivera St. Tondo Manila NCR 1000 where they may be served with summons, notices and other processes of this Honorable Office. STATEMENT OF THE FACTS AND OF THE CASE 1. Herein respondent company is a contractor of several communication companies. As part of its contractual obligations it fields out Technicians to facilitate and address to internet complaints by its subscribers. 2. The herein complainant was hired as FRM (Fixed Rate Maintenance) Technician as project based employee. After every end of project employment the herein employer would offer him another new project based contract. 3. That on December 4, 2017 herein complainant signed a Contract of Employment as FRM (Fixed Rate Maintenance) Technician pertinent portion is herein quoted as follows: “xxx ikinagagalak kong sabihin na ikaw ay magiging bahagi ng Fastel Services Inc. Simula sa Enero 1, 2018 hangang Disyembre 31, 2018 bilang isang project based employee na may designation na FRM technician. Ito ay alinsunod sa kasunduan ng Fastel Services Inc. at ng mga Telecommunication Company na kliyente nityo na magtatagal simula Enero 1, 2018 hangang Disyembr 31, 2018. xxx” Copy of the Contract of Employment as Fixed Rate Maintenance Technician is herein attached as ANNEX “___.” 4. Sometime July 1, 2018 the herein complainant was absent without leave from his employment, so the herein respondent was sent through courier a Return to Work Order with Notice to Explain (Abiso ng Pagpapabalik sa Trabaho na may kasamang pagpapaliwanag) dated July 5, 2018. Copy of the Abiso ng Pagpapabalik sa Trabaho na may kasamang pagpapaliwanag dated July 5, 2018 and attached Notice to Explain are herein attached as ANNEX “_____” and “_____” respectively 5. The herein complainant received the Return to Work Order with Notice to Explain through courier on July 8, 2018. Copy of the LBC Transmittal Receipt is herein attached as ANNEX “____” respectively.

6. Thereafter, the herein complainant submitted his written explanation which he date July 5, 2018, the contents of which is quoted, to wit: “xxx SA KINAUUKULAN, PINABABATID KO PO ITO AY PAGKAKATAON NA DUMATING NA DI MAARING PALAMPASIN, PARA SA MAGANDANG KINABUKASAN NG AKING PAMILYA KAYA AKO NAPALIBAN NG WALANG PAALAM SA PANGHAHANAP BUHAY. SANA AY MAUNAWAAN NINYO ANG BAGAY NA PARA SA PAMILYA AY GAGAWIN ANG MAKABUBUTI PARA SA MAKAPAGBIGAY NG KAGINHAWAAN SA KANILA xxx” Copy of the complainant’s written explanation dated July 5, 2018 is herein attached as ANNEX “___”. 7. For the kind knowledge and information of this Honorable Labor Arbiter, it was during this time the herein Complainant went on daily rallies concerning the PLDT – DOLE issue on regularization. Correlatively, despite being ordered to return to work the herein Complainant refused to do so and choose to devote his time to go on rallies with the MKP rather than continue working. 8. Eventually, some of the rallying employees of the respondent reported back to work after a couple of days or upon receiving the Return to Work Order issued by respondent management. With this, the respondent choose to await the return of any employee that would choose to come back from the rally and return to the employment of the respondent 9. The complainant on the other hand, never or refused to returned back to the employment of the respondent. In fact, from July 1, 2018 up to the time of the expiration of his one (1) year contract on December 31, 2018 or period of six (6) months, the herein complainant never went back and refused to work for the respondent. Hence, the herein respondent considered the complainant to have abandoned his employment. 10. Considering that the one (1) year contract for 2018 for ALL of the respondent employees were nearing expiration, the herein respondent issued a thirty (30) day Notice to Terminate Project Based Contract to ALL concerned employees, including the herein complainant. As company practice, after the expiration of the one (1) year contract for 2018, a new employment contract would be executed by the respondent and ALL its employees for 2019. This practice is done on a yearly basis.. Copy of the Notice to Terminate Project based Employment Contract of Complainant Elpido Bodollo dated November 29, 2018 is herein attached as ANNEX “5”. 11. The herein respondent offered to ALL employees a contract of employment for 2019 and all were able to sign said contract. For the record, the respondent welcomed any employee including the complainant to appear at the office premises in order to sign a new contract for the year 2019. However, disconcertingly, the complainant never showed. 12. Instead the herein complainant after six (6) months of abandoning his work, perplexingly went straight to the NLRC to file a complaint for alleged illegal dismissal and other claims.

Copy of the Summons dated January 8, 2019 together with the Complaint January 9, 2019 are herein attached as ANNEXES “5’ and “6” respectively. 13. During the mandatory conference, no settlement was reached. Hence the parties were required to submit their respective position paper. Hence, this position paper for the respondents.

ISSUES

WHETHER OR NOT THE COMPLAINANT WAS DISMISSED. WHETHER OR NOT COMPLAINANT ENTITLED TO SEPRATION PAY

IS

WHETHER OR NOT COMPLAINANT IS ENTITLED TO MORAL AND EXEMPLARY DAMAGES, ATTORNEY’S FEES ARGUMENTS AND DISCUSSION The Complainant was dismissed from employment.

never

14. To begin with, the herein respondent respectfully maintains that he did not terminate the employment of the complainant, nor was there any intention to terminate his services. The contract of the complainant expired on December 31, 2018. in fact he is aware of the practice of the respondent company of renewing contracts of all employees on a yearly basis. 15. In addition thereto, the complainant is aware that the 30 day Notice to terminate Project Based Employment Contract is a STANDARD FROM received by ALL employees subject for renewal. 16. To prove this, copies the Notice to terminate Project Based Employment Contract of some employees such as BENJAMIN DIWA, JAY DELOS REYES, DENNIS JACINTO, ERWIN TALLADA, and RAYMOND PIADO all dated November 29 2018 are herein attached as ANNEXES “____”, and series. 17. Correspondingly, the very same above name employees have who have received the Notice to terminate Project Based Employment Contract dated November 29, 2018 all executed a project employment contract for 2019 and is still currently employed by the respondent company. Copies of the project employment contract of BENJAMIN DIWA, JAY DELOS REYES, DENNIS JACINTO, ERWIN TALLADA, and RAYMOND PIADO are herein attached as ANNEXES “____”, “___’ and “___’. 18. Verily, if the herein complainant would have just come to work he would have known that a new project employment contract would be executed between herein respondent and ALL employees for 2019. However he did not.

19. Worth noting is the deliberate act of the complainant of refusing to go back to work despite being furnished a Report to Work Order and Notice to Explain which he received. 20. Moreover, the complainant even submitted his explanation dated July 5, 2018 (Annex “___”) and never showed up for the succeeding Months of July, August, September, October and November until the expiration of his yearly contract on December 31, 2018. In other words, after the complainant submitted his written explanation he never manifested his intention to return to the employment of the company. 21. In fact, from the very wordings of the herein complainant as contained in his explanation dated July 5, 2018 he informed the respondent that an “opportunity came up which he could not let go off and he had something else (other than working for the respondent) which would benefit his family”. Re-quoting the words of the herein complainant: “xxx SA KINAUUKULAN, PINABABATID KO PO ITO AY PAGKAKATAON NA DUMATING NA DI MAARING PALAMPASIN, PARA SA MAGANDANG KINABUKASAN NG AKING PAMILYA KAYA AKO NAPALIBAN NG WALANG PAALAM SA PANGHAHANAP BUHAY. SANA AY MAUNAWAAN NINYO ANG BAGAY NA PARA SA PAMILYA AY GAGAWIN ANG MAKABUBUTI PARA SA MAKAPAGBIGAY NG KAGINHAWAAN SA KANILA xxx 22. From the very wordings of the herein complainant, he admitted the following: i) ii) iii) iv) v)

That he had other opportunities that came up; That he needed to take this opportunity; That this opportunity would better the situation of his family; That he admitted leaving his employment without any notice; And his overt act of refusing to come back to work.

23. Correspondingly, it is the complainant himself who severed his employment from the respondent and abandoned his work. He had the all the time or the whole six (6) months from July to December 2018 to come back to work and yet he refused to do so. Copy of the payroll attendance for the year 2018 and the months of July to December 2018 of Complainant Elpidio Bodollo as verified by Human Resources for Payroll Ms. Mary Rose E. Nate is herein attached as ANNEX “___”. 24. A fair perusal of the payroll attendance of the complaint would show that he was no longer reporting to work for a period of six (6) months. The herein respondent even assumed that the complainant must have found a new job and abandoned his employment with the respondent as no family man would survive without any work for six (6) months. 25. As the Supreme Court held in the case of Samarca v. Arc-Men Industries, Inc., 459 Phil. 506, 515 (2003), citing MSMG-UWP v. Hon. Ramos, 383 Phil. 329, 371-372 (2000), to wit:

“xxx Jurisprudence is replete with rulings that for abandonment of work to exist, it is essential that (1) the employee must have failed to report for work or must have

been absent without valid and justifiable reason; and (2) there must have been an indisputable intention to sever the employer-employee relationship manifested by some overt acts, with the second element as the more determinative factor xxx” 26. Verily, both elements are present in this case, the herein complainant (1) failed to report for work and was absent without valid and justifiable reason and (2) he had the indisputable intention to sever the employer-employee relationship by his overt act of informing the respondent that he had other opportunities that came up that would better serve his family which he choose over his employment. 27.

While, it may be true that the complainant abandoned his employment, the respondent did not terminate his employment, they allowed his contract to lapse hoping that he would return to his employment before his contract expired. However, the complainant did not.

28. Hence, considering that his contract was nearing its end (December 31, 2018), they gave notice to the complainant through a Notice to terminate Project based employment Contract following company procedure and as required by law. It should be noted that the Termination of an employee and Notice to Terminate Project Based Contract are two different matters. 29. As the Supreme Court held in the case of MACHICA V. ROOSEVELT SERVICE CENTER, INC. G.R. NO. 168664, 4 MAY 2006, 489 SCRA 534, 544-545 that: “xxx The rule is that one who alleges a fact has the burden of proving it; thus, petitioners were burdened to prove their allegation that respondents dismissed them from their employment. It must be stressed that the evidence to prove this fact must be clear, positive and convincing. The rule that the employer bears the burden of proof in illegal dismissal cases finds no application here because the respondents deny having dismissed the petitioners. 30. Applying the above cited jurisprudence to the given fact at hand, the burden of proof falls upon the complainant to show that he was illegally dismissed by the respondent. Nowhere within the given facts does it show that the respondent illegally terminated the complainant. 31. In illegal dismissal cases, it is incumbent upon the employees to first establish the fact of their dismissal before the burden is shifted to the employer to prove that the dismissal was legal.” (EXODUS INTERNATIONAL CONSTRUCTION ET AL. VS. GUILLERMO BISCOCHO ET AL. G.R. NO. 166109, FEBRUARY 23, 2011.) 32. Assuming without admitting that the complainant was indeed terminated, records show that he was afforded the twin elements of Notice and Hearing in which a Notice to Explain dated June 1, 2018 was given to him and was afford his chance to explain through his letter dated July 5, 2018. Facts show that there was more than substantial compliance under the law. The complainant was paid his thirteenth (13th) month pay

33. Respondent maintains that the complaint has always paid the complainant his13th month pay for his past employment. Copy of Transmittal Records showing receipt of 13 th month pay is herein attached as ANNEX “__” 34. As for his 13th month pay for the year 2018, a query is raised before the Honorable Labor Arbiter as to how would the herein respondent pay his 13 th month pay for the year 2018 if the complainant was not reporting for duty and has abandoned his work? 35. Be that as it may, the herein respondent is willing to pay his 13 th month pay of the complainant for the year 2018 pro-rated. Complainant is not entitled to separation pay 36. In illegal dismissal cases, it is incumbent upon the employees to first establish the fact of their dismissal before the burden is shifted to the employer to prove that the dismissal was legal.” (EXODUS INTERNATIONAL CONSTRUCTION ET AL. VS. GUILLERMO BISCOCHO ET AL. G.R. NO. 166109, FEBRUARY 23, 2011.) 37. From the very facts in themselves supported by the attached evidence on record, the claim for separation pay of the herein complainant must be given scant consideration by this Honorable Office. 38. Accordingly, Separation pay is only granted when the herein complainant was prevented from working or instances when illegal dismissal was present. 39. Verily, the herein complainant was never prevented from working as the herein respondent had no reason to prevent the complainant from working. In fact, it was the complainant who chose to stop working for his own personal reasons. Furthermore, it is an established fact that the complainant was never dismissed by the respondent.

40. A query is raised unto this Honorable Office as to how can the separation pay be awarded when the complainant was never illegally dismissed or prevented to work by the respondent in the first place. 41. Under law, there are at least five instances in which an employee is entitled to payment of separation pay upon severance of employment. One of which is when the termination from service of the employee has been declared illegal, but his reinstatement to his former position is no longer feasible for some valid reason, e.g., when reinstatement is rendered impossible due to subsequent closure of business, or when the relationship between employer and employee has become strained (doctrine of strained relations). ( GABUAY V. OVERSEA PAPER SUPPLY, G.R. NO. 148837, AUGUST 13, 2004. 42. Clearly, there has been no strained relations that was established by the complainant prior to the fact that he abandoned his employment in the company, furthermore there was no illegal dismissal as he was never dismissed in the first place as his position in the company is still vacant and open for him to resume employment if he chooses to do so. On these points alone, the claim for separation pay has no legal leg to stand on.

Respondent is willing to return the Retention/ Cash Bond (Pondo) of the Complainant after employment. 43. For the kind knowledge and information of the Honorable Labor Arbiter, the posting of Cash Bond/ retention has been an on-going valid practice by the respondent. Said Cash Bond / retention is to answer for any loss or damage of property that the employer may incur. The making of deductions for cash bonds or deposits is one of the allowable deductions from the employee’s wages (Article 114, Labor Code of the Philippines). 44. Upon severance of the employee from the employment of the respondent, the Cash Bond/ Retention shall be returned to the complainant provided he undergoes clearance procedure in the company. There Being No Illegal Dismissal to Speak of, Complaint is not Entitled to Moral and, Exemplary Damages; Attorney’s Fees 45. Complainant is not entitled to moral damages prayed for. Moral damages are recoverable only where the dismissal of the employee was tainted with bad faith or fraud, or where it constituted an act oppressive to labor, and done in a manner contrary to morals, good customs, or public policy, while exemplary damages may be awarded only if the dismissal was done in a wanton, oppressive, or malevolent manner. (Permex, Inc. vs. National Labor Relations Commission, 323 SCRA 121) 46. Contrary to the allegations of the complainant, it is to be considered that herein respondents are in truth and in fact the true victims of this whole unprecedented ordeal; 47. Accordingly, herein complainant anchors its entire claim on the allegation of illegal dismissal when actually a fair perusal of the facts and evidence would show that herein complainant was never dismissed; 48. If herein complainant was truly illegally dismissed, he would have gone to the NLRC and filed his complaint for illegal dismissal the very next day after July 5, 2018 or anytime within last year. Instead it took him six (6) months to file his complaint after the expiration of his contract. Such act is clearly just an afterthought. 49. Truly, the complainant is with the underhanded intention of enriching himself at the expense of the respondent. In connection thereto, it is also worth applying the case of NORTHWEST AIRLINES V. LAYA 382 SCRA 730, were the Supreme Court stated that: “xxx “xxx Damages are not intended to enrich a complainant at the expense of the defendant xxx” 50. Again, in the case of PLEYTO V. LOMBOY 432 SCRA 329 the Highest Court in the land held that :

xxx Moral damages, though incapable of pecuniary estimation, are in the category of an award designed to compensate the claimant for actual injury and are not meant to enrich complainant at the expense of defendant xxx 51. Furthermore, in the case of PEOPLE V. SANCHEZ 367 SCRA 520 in which the Supreme Court held, to wit: “xxx Moral damages are emphatically not intended to enrich a complainant at the expense of a defendant they are awarded only to enable the injured party to obtain means, diversion or amusements that will serve to alleviate the moral suffering he has undergone by reason of the defendant’s culpable action. xxx 52. And again, in the case of JACULIN v. PEOPLE 378 SCRA 453 the Supreme Court had the occasion to settle that: “Moral Damages are not complainant but awarded only obtain some means that would sustained on account of the offender. xxx”

intended to enrich a to enable an injured party help obviate the suffering culpapble action of an

53. It is crystal clear, that complainant aims to deviously enrich himself from this whole unwarranted ordeal, which he caused and insinuated in the first place at the expense of the respondent. In fact, taking into application the above-cited plethora of jurisprudence; nowhere on records of this case does the complainant allege acts of bad faith of the respondent to justify the claim for moral damages 54. As held by the Supreme Court in the case of PEOPLE v. BAGCA 350 SCRA 402 which held that: xxx Moral Damages can be awarded only upon sufficient proof that the aggrieved parties are entitled thereto. xxx” 55. In connection thereto, herein complainant wants to impress upon this Honorable Office that he should be compensated for an imaginary claim of illegal dismissal and malicious imputation of bad faith against the respondent. The truth is Such mere contentions cannot be given scant consideration as the Supreme Court held in the case of NATIONAL POWER CORPORATION V. PHILIPP BROTHERS OCEANIC INC., 369 SCRA 629 that: “xxx “xxx A person will be protected only when he acts in the legitimate exercise of his right, that is, when he acts with prudence and in good faith; but not when he acts with negligence or abuse xxx” 56. Records would show that herein complainant was not in the exercise of his legitimate right when he assumed and claimed to be illegally dismissed. Truly it was a devious ploy to manipulate the circumstances and sue the respondents in order to collect money in the guise of unfounded claim for separation pay and damages. 57. Worthy of consideration is the principle in the award of moral damages that the award should find semblance of malice or bad faith on the part of the respondent. In a plethora of cases decided by the Supreme Court such as the case of MIRASOL V. COURT OF APPEALS, 351 SCRA 629, it was held that:

“xxx Absent showing of bad faith moral damages cannot be awarded. xxx” 58. Again, in the case of SARMING v. DY, 285 SCRA 131 the Supreme Court again held that: xxx Moral damages improperly awarded, absent a specific finding and pronouncement from the trial court that the other party acted in bad faith or with malice. Xxx 59. Further, in the case of FRANCISCO V. FERRER JR, 353 SCRA 261: xxx bad faith does not simply connote bad judgment or negligence, it imports a dishonest purpose or some moral obliquity and conscious doing of a wrong xxx 60. A review of the facts would show the specific lack of bad faith and malice on the part of the respondent. Moral damages are not awarded if the defendant is not shown to have acted fraudulently or with malice or bad faith. (GSIS v. LABUNGDEANG 365 SCRA 341). 61. Besides the mere sneaking suspicions and baseless imputations and conjecture of the complainant, there is nothing else to support his claim and overcome the presumption of good faith on the part of the respondent. As held by the Supreme Court in the case of ESTANISLAO JR V. COURT OF APPEALS 362 SCRA 229 that: The law presumes good faith, and any person who seeks an award of damages due to acts of another has the burden of proving the latter acted in bad faith or with illmotive. xxx” 62. In summary, worth internalizing is the case of LEDESMA, JR. VS. NATIONAL LABOR RELATIONS COMMISSION, 537 SCRA 358, the Supreme Court made this pronouncement in the wise: xxx The law in protecting the rights of the employee, authorizes neither oppression nor self-destruction of the employer – there may be cases where the circumstances warrant favouring labor over the interests of management but never should the scale be so tilted if the result is an injustice to the employer. xxx” 63. In summary, worthy worth internalizing is the case of [Leyte IV Electric Cooperative, Inc. vs. Leyeco IV Employees Union-ALU, 537 SCRA 154] when the Supreme Court made this pronouncement in the wise: “While the Constitution is committed to the policy of social justice and the protection of the working class, it should not be supposed that every labor dispute will be automatically decided in favor of labor – justice is in every case for the deserving, to be dispensed in the light of the established facts and applicable law and doctrine.

PRAYER WHEREFORE, premises considered, it is most respectfully prayed unto this Honorable Office that the Complaint dated January 7, 2019 be DISMISSED for utter lack of merit. Such other reliefs just and equitable under the circumstances are likewise prayed for. Makati City for Quezon City. March ___, 2019.

BAYAUA AND ASSOCIATES LAW OFFICES Counsel for the Respondents 3rd F. Gonzalez Bldg., 1888 Orense St., Guadalupe Nuevo, Makati City Tel Nos: (02) 750-4439 / (02) 881-7629 By: ATTY. JORICO FAVOR BAYAUA IBP Life Member O.R. No. 09572 / 01-13-11 PTR No. 6617744/ 01-05-18 / Makati City Roll No. 47842 MCLE Compliance No. V-0022582 July 4, 2016 COPY FURNISHED:

ELPIDIO PESADO BODOLLO 104-A Bagong Lipunan Condo II, Rawiss, Tondo, Manila NCR 1013