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PAULINE E. BARDENAS
Complainant,
-versus-
TELE-SKILLS CALL
CENTER,
Respondent.
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POSITION PAPER
Respondent by counsel, respectfully states:
PREFATORY
Security of tenure is a constitutionally guaranteed right. Employees
may not be terminated from their regular employment except for just or
authorized causes under the Labor Code and other pertinent laws. To protect
the labor from the employers oppressions, our Labor laws as well as the
present Constitution provide rigid parameter to cause a valid and legitimate
dismissal and severance of employment contract. Nonetheless, the foregoing
parameter, i.e. legal grounds for dismissal and two notice rule to suffice due
process, will only be applied if there is an actual dismissal per se, and cannot
indiscriminately invoked to perpetrate employees malicious scheme in
bribing their employers.
Worse, the foregoing rule should not supposedly be used and exploit
by an arrogant employee1 to hold hostage an innocent employer from its
baseless Complaint, by painting before the Honorable Office that she was
illegally dismissed, when in truth and in fact, shes the one who abandoned
her work, which consequently causes hefty stress to her innocent employer2.
Simply put, this present case is baseless, unwarranted so to speak as
there is no dismissal happened at the first place, its all a by-product of
1
2
b.
Defiance
policy and order.
to
reasonable
company
c.
Initiating trouble and fight within the
work premises and with other employees.
d.
Casting
respondents.
bad
views
against
8.
Since the account she handled was very important, respondent
merely stomached complainants undesirable attitudes, despite the same is a
clear violation of its internal policy on how employee should and supposedly
conduct their selves in dealing and performing their assigned tasked.
9.
To address the above discussed nervy defiance of the company
s rules and regulation, memorandum and several incident report was given
to complainant. Nonetheless, she merely ignored the same.
In her vain attempt not to be bound by it, she refused to receive such
memorandum or take necessary action to correct any of the incident reports,
where she was involved.
A copy of the said incidents reports is hereto attached as Annex 1, 1A, 1-B, respectively.
Memorandum given to complainant as Annex 2, 2-A, 2-B and 2-C,
respectively.
A copy of complainants Facebook public conversation is attached as
Annex 2.
10. On 05 June 2015, complainant approached respondent,
requesting that she will be allowed to absent as she had to attend some
personal events, which comes to her knowledge almost two (2) weeks
earlier. Considering that the said request was done badly out of time,
respondent refused to heed the same as it cannot abruptly pull out any other
agents for her replacement.
11. Frustrated by the foregoing refusal, complainant with her
sarcastic attitude, insulted respondent by using foul words that could
provoke a fight. In order not to cause altercation or any form of oral tirade
with complainant, respondents on the other hand, merely ignored the same.
12. Cannot be deterred with her fervent desired to absent, which
was denied, complainant again bad mounted respondents when she was
about to get her salary on the even date. With an intention merely to
vindicate itself from intemperate remarks spill out from the very mount of
complainant, respondent break its silence when it handed complainants full
and complete salary by uttering a words; ari sweldo mo, sa lunes wala
kana diri balikan
Incident Report is hereto attached as Annex 3
13. With her boundless enthusiasm to humiliate respondent,
complainants answered back by saying nga-a hindi mo ako pagbalikun
haw, mabalik pa ako sa lunes para magkuha sang COEand swiftly left the
premises, and swiftly left the premises shouting loudly some malicious
statement that can be heard throughout the building.
14. Respondent merely moves its neck from left to right and
scratches its head as it become speechless on how far complainant took his
arrogance against the one, who feed her mount and her family.
15. Without any intention to terminate her employment,
respondents on the next working day, waited complainant to appear before
its office to at least, once and for all, settled whatever issues that transpired
in untoward incident. Nonetheless, complainants never appeared, even the
glimpse of her shadows never showed up on the next succeeding working
days.
16. It is unfortunate that in order to save his neck from the ill
effects of his clear and apparent arrogance, which apparently surprise
respondent, complainant filed this present unfounded Complaints.
ISSUES
I.
WHETHER OR NOT, COMPLAINANT IS
ILLEGALY DISMISSED OR SHE HERESELF ABANDONED
HER WORK.
II.
WHETHER OR NOT THAT THE UTTERANCE
MADE BY THE COMPLAINANT IS TANTAMOUNT TO
RESIGNATION.
III. WHETHER OR NOT COMPLAINANT IS
ENTITED
WITH
SEPARATION
PAY,
SERVICE
INCENTIVES LEAVE PAY AND DAMAGES.
ARGUMENTS/DISCUSSION
Complainant was not illegally
dismissed, she intentionally
abandoned
her
work,
breeching her employment
contract.
states:
Fair evidentiary rule dictates that before
employers are burdened to prove that they did not
commit illegal dismissal, it is incumbent upon
the employee to first establish the fact of his or
her dismissal
In the same case, the Supreme Court also ruled that:
The one who alleges a fact has the burden of
proving it and the proof should be clear, positive
and convincing. In this case, aside from mere
allegations, no evidence was proffered by the
petitioners that they were dismissed from
employment. The records are bereft of any
indication that petitioners were prevented from
returning to work or otherwise deprived of any
work assignment by respondents4.
Based on the foregoing fair rule, following queries herein should be
asked.
(i)
Was there any evidence so to speak to prove
that complainant was dismissed from work?
3
4
11
It bears stressing that before complainant get wild due to refusal of her
request to absent from work. She already made a statement that clearly
entails intention to relinquish her employment contract with respondent i.e.
mabalik pa ako sa lunes para magkuha sang COE
Normally, the above statement is being uttered by an employee right
after he/she resigned from work to signify closure and severance of
employee-employer relationship, and such Certification can be utilized as a
proof of his/her employment history that should be presented in his/her
subsequent employer. Hence, there is no doubt that complainant, at any rate,
have a strong intention to resigned from her work due to the fact that she
could no longer accommodate all her hectic schedule of long list of personal
event to attend with, wherein to disassociate herself from respondent is her
only recourse, in order not to compromise such personal engagement.
Hence, the above discussed last utterance made by the complainant is
considered as a significant indication that she is resigning from work. As a
consequences of the said resignation, complainant also relinquish whatever
benefits she is entitled under the premises of law. The foregoing is based on
the general rule enunciated by the Supreme Court in Mendoza v. HMS
Credit12, which states:
generally, an employee who voluntarily
resigns from employment is not entitled to
separation pay, an arrangement whereby the
employee would receive separation pay despite
having resigned voluntarily constitutes a contract
which is freely entered into and which must be
performed in good faith
Since there is no standing agreement or whatsoever that effectuate the
claim of separation fee upon resignation. Thus, complainant is not entitled
the same.
Complainant is not entitled for
Service Incentive Leave Pay as
she does not rendered a
required period to entitle such
Monetary Claim.
24. To lend semblance that the monetary claim she sought as relief
in the present Complaint is legitimate, complainant made it appears that she
is entitled with the Service Incentive Leave Pay.
12
MARIANIE C. TANATE
PTR No. 3738164/ 1-14-2015/Iloilo City
IBP Lifetime Mem. No. 0986661/6-24-2015/Iloilo Chapter
Attorneys Roll No. 63444
(Admitted to BAR in 2014; exempted until next compliance period)
MELCHOR C. VILLALOBOS
PTR No. 0349017/01-05-15/Pasig City
IBP No. LRN-0981340/01-05-2015/ Iloilo Chapter
Attorneys Roll No. 61783
(Admitted to BAR in 2013; exempted until next compliance period)