REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
REGION VII
CEBU CITY

OFFICE OF LABOR ARBITER x x x

ROOM 311, 3RD FLOOR, PPSTA BLDG.

,JUAN DELA CRUZ

Complainant,
NLRC RAB NCR
- Versus - CASE NO. NCR-

LUGOD MAKERS COMPANY

Respondents.
x-------------------------------------------------------x

POSITION PAPER
FOR THE RESPONDENT

The COMPLAINANT, pro se, respectfully states:

I. STATEMENT OF FACTS

1. The complainant is Juan Dela Cruz, 44 years old, and a resident of

Lahug, Cebu City.

2. The respondent in this case is Pedro Pindoko, the owner of a

company whose trade name is Lugod Makers. The said company is a
manufacturer of a local body scrub, the principal office of which is at
Lahug, Cebu City.

3. His position in the company was a lugod maker.

4. He was hired by the company on July 2003.

5. He started with a daily salary of P150.00 per day.

6. During the time that he was employed, there were several things that
were missing in company premises and he was always the prime
suspect.
7. On August 1, 2007, he was asked to buy some items in the local
hardware. The total amount of the items was only P1,000.00. When he
surrendered the receipt to me, the amount reflected on the receipt was
P3,000.00. There was an indication that the receipt was tampered.

8. I talked to him and asked why the receipt looked tampered. He never
said a word, I became very angry and asked him to never show his face
again. He left without returning the tampered receipt and the money.

9. But that shoving off was only a spur of the moment. On September
3, 2007, I sent a return to work order to him. He received the order
and placed his signature indicating that he was willing to return to work.

10. When he returned to work, he refused to sign the Notice of

Investigation asking him to appear in a formal investigation to be
conducted concerning the tampered receipt. Not only that, he also
refused to return the tampered receipt and the money.

11. He had a brief argument with me because of his refusal. After that,
he did not return to work anymore.

12. On December 3, 2007, Juan Dela Cruz filed a labor case against my
company, Lugod Makers alleging that he was illegally dismissed and
that he is underpaid.

II. ISSUE

The issue is whether or not the complainant was illegally dismissed.

III. DISCUSSION

13.The respondent was not illegally dismissed. In fact, he was given a

return to work order. A copy of the return to work order with his
signature is herein attached as ANNEX A.

14.Upon his return and upon knowing that he was being investigated, he
did not come back to work again. A copy of his DTR is herein attached as
ANNEX B. In other words, he was not illegally dismissed because it
was he who abandoned his job.

15. In the case of Zenaida Angeles vs. Lordy Fernandez, G.R. No. 160213,
the Supreme Court had the occasion to rule that to constitute
abandonment, two elements must concur: (1) the failure to report for work or
absence without valid or justifiable reason; and (2) a clear intention to sever the
employee-employer relationship. Of the two, the second element is the more
determinative factor and should be manifested by some overt acts.
In the case at hand, it is noteworthy that Juan Dela Cruz failed to report to work
after he learned that he was being investigated. Moreover, he manifested an overt
act of wanting to sever the employee-employer relationship when he refused to
return the tampered receipt and the money. Not only did he refuse to return them
but he did not give any explanation as well. Also, the act of not returning to work
itself is a clear indication of his intention to sever the employer-employee
relationship.

16. Finally, illegal dismissal and abandonment of work are mutually exclusive.
Having shown evidence that a return to work order was sent to Juan Dela Cruz and
he even signed it and it was he who failed to report to work as evidenced by his
almost blank DTR, then there can be no conclusion other than that he was not
illegally dismissed, INSTEAD, he abandoned his job.

IV. PRAYER

WHEREFORE, premises considered, it is respectfully prayed that

judgment be issued declaring that the complainant has NOT BEEN
ILLEGALLY DISMISSED by the respondents.

MR. PEDRO PINDOKO

Respondent
Address: Lahug, Cebu City.

SUBSCRIBED AND SWORN TO BEFORE ME in Cebu City on

December 4, 2007, affiant showing his competent proof of identity as
follows: LTO Drivers License No. 123.

Notary Public
Doc. No.
Page No.
Book No.
Series of 2016.

Copy Furnished:

Atty. Xxx Xxx

Counsel for Respondents
(To be personally given during the
hearing on November 29, 2016 at 10:000 AM)