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NATIONAL LABOR RELATIONS COMMISSION

National Capital Region Quezon City ________________________________ Complainants; -- versus -_________________________________, Respondents. x-------------------------x NLRC NCR CASE NO. ______________

Republic of the Philippines Department of Labor and Employment

POSITION PAPER
RESPONDENTS, through undersigned counsel and unto this Honorable Office, respectfully state that:

Workers who are dismissed for the commission of a crime against their employer and the latters customers/clients, after being given sufficient opportunity to explain their side, cannot in any manner be considered illegally dismissed. Nay, their dismissal is in fact called for! Article 282 of the Labor Code expressly provides that an employer may terminate the services of any employee for serious misconduct, willful disobedience, gross and habitual neglect of his duties, commission of a crime and analogous cases. And when that worker is given sufficient opportunity to explain his side or defend himself in an administrative investigation but his explanation failed to controvert the overwhelming evidence against him, he may be validly terminated by the employer. Social justice cannot be permitted to be the refuge of scoundrels any more than equity be an impediment to the punishment of the guilty. xxx This great policy of our Constitution is not meant for the protection of those who have proved they are not worthy of it, like the workers who have tainted the cause of labor with the blemishes of their own character. (Philippine Long Distance Telephone Co. vs. NLRC et al, G.R. No. 80609, 23 August 1988; Telefunken Semi-conductors Employees Union-FFW vs. Court of Appeals, G. R. Nos. 143013-14, 18 Dec 2000)

PREFATORY STATEMENT

THE PARTIES
1. Complainant _____________________ is of legal age, Filipino, single and with residence address at 998 C. San Antonio St., Tondo, Manila. 2. Complainant Jerry _____________ (_____________ for brevity) is of legal age, Filpino, single and with residence address at __________________________________ 3. Complainant Ranulfo _____________ (_____________ for brevity) is of legal age, Filipino, single and with residence address at _____________________________ All three complainants may be served with the orders, summons and other legal processes of this Honorable Office at their respective above-given residence addresses or thru their counsel on record, should they engage any. 4. Respondent _____________ ________________________ (_____________ BUSINESS for brevity) is a domestic corporation duly organized and existing in accordance with law which is engaged in Business Process Outsourcing with business address at No. _______________________________. Respondent is the President of _____________ Business. Respondents may be served with the orders, summons and other legal processes of this Honorable Office thru their counsel, Westwood Law with office address at Suite 1004, Atlanta Center, Annapolis St., Greenhills, San Juan City.

STATEMENT OF FACTS AND ANTECEDENTS


5. Complainants are ex-employees of _____________ BUSINESS wherein they were employed, as as such were assigned and stationed at the __________________________) which is situated near the Navotas Fish Port area, Navotas City. _____________ served as supervisor while _____________ and _____________ are his subordinates. 6. As an employer, _____________ BUSINESS has the duty and obligation to see to it that the contracted project is done inside the _____________ Navotas Plant strictly in accordance with the agreed specifications of _____________ and its customers, observing utmost care and diligence and using all the machineries and facilities provided by _____________. 7. That sometime on 19 August 2007, several expensive metal parts attached to the Small Meat Grinder Machine at _____________ Plant were discovered missing and nowhere to be found. As a result, the operation of the company in so far as the use of such machine grinder was put to a halt and hiatus for four (4) days. As a result, _____________ failed to deliver its quota production to some of its customers, including Wendys and Monterey, thereby endangering the contract of the respondent _____________ to its client _____________; 8. _____________ notified _____________ BUSINESS of the incident and ordered the latter to do the necessary replacement of the missing grinder machine parts, and apply disciplinary actions against its erring employees of face the sanction of contract termination. _____________ also threatened to charge _____________ for whatever compensatory damages as well as penalties and charges that its customers may charge for its failure to delivery its quota on time. Copy of _____________s letter dated 22 August 2007 is attached hereto as Annex A. 9. _____________ BUSINESS had no choice but to procure new materials from VARIWIDE Enterprise on 23 August 2007 at the cost of P68,000.00to replace the said missing machine grinder parts. Some of the irreplaceable machine part was in fact fabricated to the cost of P10,000.00. In total, the nominal amount alone of the loss and replacement of the machine grinder parts is P78,000.00. Copies of the VARIWIDE Enterprise quotation and official voucher over the replaced machine parts and installation are attached hereto as Annexes B, C and D. 10. Consequently, _____________ BUSUNESS created an Investigation Committee which was co-chaired by ____________________ (Human Resource Manager) and _________________________ (Plant Manager) to investigate the matter. The committee inspected the _____________ Plant, notified and convened all the employees who were on duty at the time of the crime incident and conducted an thorough investigation from 21 August 2007 up to 15 September 2007. 11. Upon initial investigation, ______________________, one of _____________s men, disclosed and admitted that he witnessed _____________, _____________ and _____________ talking about their extra-ordinary interests in the value of the machine grinder parts at _____________ Navotas Plant at around 6:00 A.M. of 19 August 2007. The discussion revolved on an insidious and scheming plan to steal the said machine parts from _____________ Plaint and thereafter sell them at a handsome price, for them to appropriate its proceeds. Copy of the Sinumpaang Salaysay dated 10 September 2007 of __________________ executed before the Navotas City Prosecutors Office, wherein a crime for Qualified Theft and Malicious Mischief was filed by _____________ BUSINESS against herein complainants, is attached hereto as Annex E. 12. This statement of ______________________ was corroborated by the statement of ______________________, a cleaning crew, who admitted that _____________ instructed him to throw away the parts of the grinder machine at the garbage bin for reasons he did not know. _____________ being his line leader, ________________- felt obliged to follow and _____________ got away with his act. Copy of the Sinumpaang Salaysay of ____________________ executed before the Navotas City Prosecutors Office, wherein a crime for Qualified Theft and Malicious Mischief was filed by _____________ against herein complainants, is attached hereto as Annex F. 13. True enough, the individual Daily Time Records of complainants _____________, _____________ and _____________ showed that they were on duty on August 18-19, 2007, at the time of the crime incident, as in fact they logged in around 7 P.M. and logged out around 7:00 to 7:34 A.M, the following day. Copies of the complainants Daily Time Records for the month of August 2007 are attached hereto as Annexes G, H and I. 14. Acting on the investigation report, _____________ BUSINESS issued a memo to

_____________, being the supervisor in charge at the period of the incident, as well as to _____________ and _____________, ordering to explain what actually occurred and why they should not be made accountable for the loss of the said machine grinder parts. They were also placed under preventive suspension during the period of investigation. Copy of the separate memos to each complainant dated 21 August 2007 is attached hereto as Annexes J, K and L. 15. Complainants individual explanation to the said memo did not persuade the _____________ BUSINESS investigation committee and the same left much to be desired. Copy of complainants letters of explanation are attached hereto as Annexes M, N and O. 16. The investigation committee continued their tasks from August 21 to September 15, 2007, determined to get to the bottom of things as to who are the principal, accomplice and party accessories to the stealing of _____________ machine grinder plate. Finally, on September 15, the Investigation Committee finally concluded that there is substantial evidence linking the three men, _____________, _____________ and _____________, to the crime incident at the _____________ Plant in Navotas City. 17. Thus, the management of _____________ BUSINESS ordered their dismissal from the service, with forfeiture of benefits, based on just cause, such as stealing valuable property of _____________, malicious mischief and destroying the trust of the company reposed upon them. Copies of the notice of termination to each complainant are attached hereto as Annexes P, Q and R. 18. Unknown to respondents, complainants filed the instant complaint on 31 August 2007 alleging the grounds for regularization, non-payment of salaries and service incentive leave in their complaint. But before or during the course of the arbitration proceedings, they filed an amended complaint for illegal dismissal and backwages. 19. Thereafter the mandatory proceedings ensued, but the parties did not reach a point for amicable settlement, as herein respondents would not want to withdraw the criminal complaint filed against herein complainants; 20. Thus, on 03 October 2007, the parties were directed by this Honorable Office to submit their respective position papers simultaneously today. Hence, this Position Paper.

ISSUES
I. WHETHER OR NOT COMPLAINANTS WERE TERMINATED EMPLOYMENT ON JUST CAUSE/ VALID GROUNDS? FROM

II. WHETHER OR NOT COMPLAINANTS TERMINATION WAS EFFECTED WITH DUE PROCESS AND IN ACCORDANCE WITH LAW? III WHETHER OR NOT CO-RESPONDENT ROMEO _____________ BEING THE PRESIDENT OF THE RESPONDENT COMPANY, IS RIGHTFULLY IMPLEADED AS A RESPONDENT IN THIS LABOR CASE. IV WHETHER OR NOT RESPONDENTS, BY WAY OF COUNTERCLAIM, SHOULD BE AWARDED WITH DAMAGES TAKING INTO ACCOUNT THE UNFOUNDED CLAIMS OF HEREIN COMPLAINANTS WHICH CAUSED DAMAGE TO HEREIN RESPONDENTS NOT TO MENTION EXTREME PREJUDICE AND INJURY TO ITS NAME AND BUSINESS OPERATION

DISCUSSION/ ARGUMENTS
I. RESPONDENTS HAVE VALID GROUNDS TO TERMINATE THE SERVICES OF COMPLAINANTS ON ACCOUNT OF THE CRIME THEY COMMITTED AGAINST THE INTERESTS OF RESPONDENTS AND ITS CLIENT.

It is respectfully submitted that, based on the records, respondents have terminated the services of complainants on just grounds because they committed a crime at the _____________ Navotas Plant, which is completely against and prejudicial, nay greatly damaging, to the interests of respondents, as their employer, and its client. In a lone line of cases, the Supreme Court has time and again ruled that the commission of a crime by an employee against his employer is a just ground warranting his dismissal, vis: Theft of properties belonging to a customer of the employer, coupled with acts of overcharging of customers constitute sufficient reasons for termination of employment. (San Miguel Corporation vs. NLRC et al, G. R. No. 70177, 25 June 1986) Theft by the employee of a tire manufacturer of wool flannel swabs which he should have used in his work as a tire builder warrants his dismissal. (Firestone Tire and Rubber Co. of the Philippines vs. Lariosa et al., G.R. No. 70479, 27 February 1997) The Investigation Committee has good reasons to believe that complainants are the ones who perpetrated the crime at the _____________ plant based on documentary and testimonial evidence presented during the investigation process conducted from 21 August to 15 September 2007, copies which were attached as annexes to this Position Paper. Primarily, it was established that when the machine grinder parts were found missing and stolen on 19 August 2007, it was _____________ (as supervisor) and his men, _____________ and _____________, who were on duty based on their Daily Time Records for August 2007. As such, _____________ is obligated to ensure that not only the job is done at his key area of responsibility, but also that all machines, facilities and company properties are kept well maintained, functioning and in order. Any event or scenario to the contrary, the responsibility and liability rest on his shoulder. This as _____________ served under the sole trust and confidence of respondents. A district sales supervisor of a company made it appear that empty wooden cases (shells) of soft drinks were returned by customers to whom cash refunds were allegedly given, when in fact these shells were those which were condemned and destroyed upon his orders. In this way, he was able to raise money for himself by pocketing the refunds. His dismissal for loss of confidence is in order. (San Miguel Corporation vs. The Deputy Minister of Labor and Employment, G.R. Nos. L-61232-33, 29 December 1983) Secondly, Villanueva and Bosico, the plant workers who were also on duty at the time of the incident, positively identified the three complainants as the ones who perpetrated the crime at the _____________ plant. These witnesses in fact narrated how _____________ used his position of power and influence to commit such insidious and malicious act, despite the generosity of _____________ BUSINESS to him over the years. Thirdly, the letter of _____________ to _____________ BUSINESS, quotation and official voucher from VARIWIDE Enterprises and the various memos of the Investigation Committee to complainants about the incident at _____________ Navotas Plant all reasonably prove the fact that the grinder machine parts were stolen and the same was linked to their malicious acts of complainants on that fateful morning of 19 August 2007, which were witnessed by Villanueva and Bosico. An employer cannot legally be compelled to continue with the employment of an individual who admittedly was guilty of misfeasance or malfeasance towards his employer, and who continuance in the service of the latter is patently inimical to his interests. The right of the company to dismiss its employees is a measure of self-protection against acts inimical to its interests. (Philippine Air Lines, Inc. vs. NLRC, et al., G.R. No. 82471, 18 February 1991) This crime, which burdened the company with P78,000.00 and posed a big risks to the employment of the hundreds of _____________ employees at the _____________ Plant, is completely inimical to the interests of respondents and thus validly justifies the dismissal of complainants. More importantly, it bears stressing that the nominal amount of the machine grinder

parts (the P78,000.00) is a small loss to bear upon respondents. The bigger loss is the trust of respondents with complainants, being employees handling sensitive positions at _____________ Navotas Plant, and the fracture of the _____________s management confidence with _____________ BUSINESS and the accompanied opportunity loss of both companies and their end-customers. II. RESPONDENTS HAVE VALIDLY OBSERVED THE DUE PROCESS REQUIREMENTS OF THE LABOR CODE IN TERMINATING THE SERVICES OF COMPLAINANTS. On the same tract, respondents have terminated the services of complainants by affording them sufficient opportunity to explain their side in an impartial investigation process which they participated in. Thus, for all intents and purposes, complainants were terminated not only with valid cause, but also with valid manner and due process. It bears stressing that respondents complied with the twin notice requirement in effecting the dismissal of complainants. First, respondents issued a memo dated 21 August 2007 to all three complainants requiring them to explain what transpired at the time of the incident and show cause why they should not be subject of disciplinary actions by management. They were placed under preventive suspension as their presence at the plant may hamper the impartial investigation by the Investigation Committee. The preventive suspension, for a period not exceeding thirty (30) days, of the department manager and assistant manager pending investigation into the alleged alterations they made in the entries of the companys port operations logbook, has been held to be proper . (Pacific Cement Company, Inc. vs. NLRC et al, G.R. Nos. 78871-72, 5 May 1989) The records of this case would show that the investigation process lasted for a considerable length of time, from 21 August to 15 September 2007. And complainants were given sufficient opportunity to explain their side and defend themselves against the charges lodged upon them. Unfortunately, despite given such opportunity, the explanation of complainants did not convince the Investigation Committee as their explanation per se left much to be desired. Worse, _____________ even absented himself from the hearing scheduled by the Investigation Committee Due process has been held to have been satisfied in a case where the employer scheduled an investigation twice but the employee, despite due notice, chose to boycott the same. (GT Printers vs. NLRC, et al., G.R. No. 100749, 24 April 1992) Second, as a result of the investigation process, respondents found substantial evidence linking the three complainants to the crime involving the loss of the grinder machine parts at the _____________ Plant, thus respondents terminated them. Complainants were duly notified of the decision of the Investigation Committee and their consequent termination from the service effective ___ September 2007. Corollariy, the ground for the dismissal of an employee does not require proof beyond reasonable doubt; the quantum of proof required is merely substantial evidence. (Vergara vs. NLRC, et al., G.R. No. 117196, 5 December 2007) All told, it is respectfully submitted that respondents have all the right to dismiss complainants for being erring employees who committed a crime against the interests of respondents and its client. Such dismissal was effected in strict observance of the requirement of law, equity and due process. After all, it is the best interests of complainants and respondents and its client, nay including the rest of the respondents employees working at _____________ Navotas Plant, that complainants be terminated as a public example that crime deserves punishment and justice is applied fairly and squarely at the shop floor. Social justice cannot be permitted to be the refuge of scoundrels any more than equity be an impediment to the punishment of the guilty. xxx This great policy of our Constitution is not meant for the protection of those who have proved they are not worthy of it, like the workers who have tainted the cause of labor with the blemishes of their own character.

(Philippine Long Distance Telephone Co. vs. NLRC et al, G.R. No. 80609, 23 August 1988; Telefunken Semi-conductors Employees Union-FFW vs. Court of Appeals, G. R. Nos. 143013-14, 18 Dec 2000) III. RESPONDENT ROMEO _____________ CAN NEVER BE HELD LIABLE FOR THE TERMINATION OF HEREIN COMPLAINANTS EVEN IF AN ILLEGALITY OF TERMINATION HAS IN FACT BEEN COMMITTED It is well-settled in law and equity that as a legal entity, a corporation has a personality distinct and separate from its individual stockholders or members and from that of its officers who manage and run its affairs. 1 The legal fiction by which the legal personality of a corporation is created is a practical reality and necessity. Without it, no corporate entities may exist and no corporate business may be transacted.2 In labor cases, the Supreme Court in the case of Malayang Samahan ng mga Manggagawa sa M. Greenfield v. Ramos3, ratiocinated that: The Court has held corporate directors and officers solidarily liable with the corporation for the termination of employment of corporate employees done with malice or in bad faith. (Underscoring and stress supplied) Taking it from there, an officer of the corporation can be held liable for the termination of service of an employee if the same was effected with malice or in bad faith. Respondent Romeo _____________ cannot be held personally liable in the instant complaint. In the first place, no illegality of termination had ever been made in the foregoing case. As previously stated, complainants were never illegaly dismissed from their employment. Lastly, and the most important of all, no amount of malice or bad faith can ever be imputed to respondent _____________ by just being an officer of the respondent company. Absence of termination dispute and malice or bad faith, respondent _____________ can never be held personally liable. As such, the complaint against respondent Robrigado does not have any leg to stand on its own. IV. RESPONDENTS, BY WAY OF COUNTER-CLAIM, SHOULD BE AWARDED WITH DAMAGES TAKING INTO ACCOUNT THE UNFOUNDED CLAIMS OF COMPLAINANTS WHICH CAUSED DAMAGE TO HEREIN RESPONDENTS NOT TO MENTION EXTREME PREJUDICE AND INJURY TO ITS NAME AND BUSINESS OPERATION In Chapter 2, Article 19 of the Civil Code governing Human Relations, it is expressly provided that: Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. It is basic as a hornbook principle in the field of human relations that a person should be protected only when he acts with prudence and in good faith, but not when he acts with negligence or abuse. Evidently, the sole purpose of complainant in instituting this baseless complaint is mainly to prejudice and injure respondents. Indeed, complainant cannot outragely cry that respondents committed illegal dismissal considering that, in the first place, no illegality in
1 2

Boyer-Roxas v. C.A., 211 SCRA 470. Vasquez v. de Borja, 74 Phil. 560. 3 357 SCRA 77.

the dismissal of herein complainants was ever committed by herein respondents as their dismissal has been sufficiently attended with just cause and with due process. But despite of this fact, complainant even had the temerity to file this frivolous complaint against respondents alleging illegal dismissal as his cause of action knowing fully well that the same never exists. We should be mindful that every person is bound to exercise his rights according to the principles of good faith. For indeed, the law does not protect the manifest abuse of a right. In the erudite expatiations of the late Senator Arturo Tolentino, he asseverates: There is undoubtedly an abuse of right when it is exercised for the only purpose of prejudicing or injuring another. When the objective of the actor is illegitimate, the illicit act cannot be concealed under the guise of exercising a right. The principle does not permit acts which, without utility or legitimate purpose, cause damage to another, because they violate the concept of social solidarity which considers law as rational and just. Hence, every abnormal exercise of a right, contrary to its socio-economic purpose, is an abuse that will give rise to liability. The exercise of a right must be in accordance with the purpose for which it was established, and must not be excessive or unduly harsh; there must be no intention to injure another. (Civil Code of the Philippines, Vol. 1, pp. 61-62, Arturo M. Tolentino, 2002 reprinted edition) (Underscoring and stress supplied) For this reason, complainant should be held liable for moral and exemplary damages to respondents in the amount of ONE MILLION PESOS (Php1,000,000.00). And, since respondents were constrained to hire the services of counsel, to protect their interests against this frivolous suit, attorneys fees should likewise be awarded in the amount of Five Hundred Thousand Pesos (Php500,000.00).

PRAYE R
WHEREFORE, premises considered, it is respectfully prayed that the instant complaint be dismissed for lack of merit. Other relief and remedies, just and equitable under the premises, are likewise prayed for. San Juan City for Quezon City. 12 November 2007.

LAW & ASSOCIATES Counsel for Petitioner