Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
Quezon City

BONNEVIE G. MOJARES,
Complainant,
NLRC CASE NO. NCR 10-
14969-17

- versus -

HUAWEI TECHNOLOGIES
PHILS. INC. / GAO KEXIN, CAO
PEI, FRANCIS ROSARIO, YULE,
KUANGYANAN, ZHANGWU,
REN ZHENG FEI, LI JIE.
Respondents.
x -----------------------------------------x

REPLY
TO RESPONDENTS’ POSITION PAPER

Complainant Bonnevie G. Mojares, by counsel, respectfully

submits her Reply to Respondents’ Position Paper and in support thereof
states:

PREFATORY STATEMENT

The complainant was under the employment of Huawei for 10

years. During that period, Complainant received just one failing
evaluation grade. Thus, it cannot be said that she was guilty of gross
AND habitual negligence. Moreover, the claim of negligence is
unsubstantiated by any credible evidence. Therefore, the
Complainant’s employment was terminated without just or
authorized cause.

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 DISCUSSION

1. Respondents’ Position Paper is pregnant with bad faith for

it leads the Honorable Office to believe that there was just cause in
the termination of Complainant’s employment.

2. Well-settled is the rule that the employer has the onus of

proving with clear, accurate, consistent and convincing evidence that
the dismissal was for a just cause, and that the employee was
afforded due process prior to dismissal.1 Conversely, the failure of
the employer to discharge the onus would mean that the dismissal is
not justified and, therefore, illegal.2

3. In this case, Respondents utterly failed to prove that

Complainant committed gross and habitual negligence to warrant the
termination of her employment.

Complainant was not negligent in

the performance of her duties.

4. Paragraph 7 of Respondents’ Position Paper alleges that

Complainant received a rating of “C” in her 2016 Half of Year
Performance Cycle. From there, they concluded that Complainant
was negligent in her work for reasons stated in paragraph 7 (a), (b),
(c), and (d).

5. The “C” rating is incorrect because it is not corroborated

by the Respondents. Paragraph 8 of Respondents’ Position Paper states
that:

“Huawei could have dismissed

complainant for her inefficiency and poor
performance, but decided to give her another
chance by enrolling her in a Performance
Improvement Plan (“PIP”).”

6. The statement is ambiguous. PIP is part of the company

process to assist struggling employees in reaching their goals. By

1Aliling vs. Feliciano, G.R. No. 185829, April 25, 2012.

2Prudential Guarantee and Assurance Employee Labor Union vs. NLRC, G.R. No. 185335, June
13, 2012.

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positing that statement, the Respondents would have this Honorable
Office believe that the PIP process is discretionary and that it is
granted ex-gratia.

7. On the contrary, PIP is a contractual obligation and duty

of the employer that must be complied with utmost good faith. It is
part of the due process which must be complied with by the
employer. Accordingly, it is incorrect to treat the PIP as discretionary.
Respondent’s failure to extend the benefits of PIP shows disregard of
company policy and the right of the Complainant to Contractual Due
Process.

8. Furthermore, the PIP goals enumerated as realistic and

possible do not in any way coincide with the goals that was subject of
the Half Year Performance Cycle of 2016. A two-month period to
evaluate an employee due to a low rating received based on a 6-
month period is extremely arbitrary. It cannot be said that the
evaluation made on those two periods would substantiate the overall
performance evaluation of the employee. This position is
strengthened by the fact that Complainant’s work performance was
never previously questioned.

9. Also, Respondents falsely allege that the Complainant

failed to meet all of the assigned task on the PIP. The Complainant
exerted her best efforts in complying with the goals but her efforts
were arbitrarily rejected by the Respondents.

10. The Respondents allege that the Complainant did not

address the allegations against her. This assertion is unfair. The
Respondents did not give Complainant the opportunity to defend
herself nor did they present any proof to substantiate their claim of
negligence. It will be highly impossible for the Complainant to
answer something as vague as “complaints from clients” when the
Respondents fail to elaborate on the same and to produce any
evidence in support thereof.

11. The Respondents further allege that the company

suffered financial loss due to the negligence of the Complainant in
relation to the PLDT contract on early 2017. This allegation is a mere
afterthought as this issue was not raised during the PIP. The issue
was only mentioned in order to support the Respondents’ allegation

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of negligence. It is noteworthy that this is the only recorded incident
wherein the Complainant was accosted by management and even so
there was no evidence that she was the sole cause of the project
mishap.

12. Clearly, the averments in Respondent’s Position Paper are

self-serving assertions which are uncorroborated by supporting
evidence. Respondent’s averments are belied by the common
evidence presented by the parties in this case.

13. It should be noted that the Complainant has been under

the employment of Huawei for 10 years. Within the same period,
Complainant received just one failing evaluation grade. In fact, she
has received commendations from management and colleagues alike.
Thus, it cannot be said that she was guilty of gross AND habitual
negligence. To reiterate, even simple negligence was not proven.

Respondents violated the

Complainant’s right to due
process.

14. To add insult to injury, the Complainant was not only

dismissed from employment without just or valid cause but was also
deprived of due process.

15. In the case of Century Textile Mills, Inc v. NLRC3, the

Supreme Court explained that “the twin requirements of notice and
hearing constitute essential elements of due process in cases of
employee dismissal: the requirement of notice is intended to inform
the employee concerned of the employer's intent to dismiss and the
reason for the proposed dismissal; upon the other hand, the
requirement of hearing affords the employee an opportunity to
answer his employer's charges against him and accordingly to defend
himself therefrom before dismissal is effected. Neither of these two
requirements can be dispensed with without running afoul of the due
process requirement of the 1987 Constitution.”

16. The Respondents would have this Honorable Office

believe that the Complainant was afforded due process because she

3 G.R. No. 77859, May 25, 1988.

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was allegedly given a reasonable opportunity to be heard but that is
not the case.

17. Respondents’ actuations from the PIP procedure to the

administrative proceeding was an illusory procedure tainted with
bad faith. This is because there was no real hearing to speak of when
the Respondents’ discipline body refuses to be objective.

18. It can be recalled that the individuals involved in the PIP

are the very same individuals who were present during the
termination proceeding. Thus, there is evident bias as it is not
expected that the very same individuals will contradict their findings
during the PIP sessions.

19. In view of the foregoing, it is respectfully submitted that

Complainant is entitled to separation pay in lieu of reinstatement,
moral damage, exemplary damage, 13th month pay, and other
benefits as well as attorney’s fees.

PRAYER

WHEREFORE, it is most respectfully prayed of the Honorable

Office that an Order be issued finding the Respondents solidarily
liable for illegal dismissal and violation the Complainant’s right to
due process and ordering them to pay Complainant, separation pay,
backwages, 13th month pay, moral and exemplary damages,
attorney’s fees and costs.

Other just and equitable reliefs are likewise prayed for.

Quezon City; 5 December 2017.

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