Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
REGIONAL ARBITRATION BRANCH VII
Cebu City

HON. MARIE ANGELICA F. PADRID

Labor Arbiter

ERNESTO GAVINO JR.,

Complainant,

-versus- NLRC-RAB VII Case No. 03-0650-17

NEW CEBU NINO SECURITY

AGENCY and ALTA VISTA
GOLF AND COUNTRY CLUB,
Respondents.
X----------------------------------------------------------------------------------------X

POSITION PAPER
[for the complainant]

COMPLAINANT, through counsel, unto this Honorable

Arbitration Office, most respectfully submits his position paper, AS
FOLLOWS:

PREFATORY STATEMENT

THE PARTIES

Complainant is of legal age, Filipino, married and resident of

Sitio Kawayan, Upper Lucimba, Pardo, Cebu City and can be served
with notices, orders and other processes of this Honorable Arbitration
Office at said address and his counsel.

Respondent Alta Vista Golf and Country Club is a duly

registered non-stock and non-profit corsporation under the
Corporation Code of the Philippines and can be served with notices,
orders and other processes of this Honorable Office through its

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principal office address at Aznar Road, Pardo Hills, Barangay Pardo,
Cebu City.

Respondent New Cebu Nio Security Agency is a business

enterprise and can be served with notices, orders and other processes
of this Honorable Office through its principal office address at 489-A
P. del Rosario Extension, Cebu City.

BRIEF STATEMENT OF FACTS AND OF THE CASE

1. Complainant is a licensed Security Guard who had been in

service for more or less 9 years. He was first employed as a
Security Guard by Glempco Security Agency for two (2) years.

2. Sometime January 2011, complainant applied and was employed

by Equator Knights Agency. He was immediately assigned at
Alta Vista Golf and Country Club. There were several of us who
were assigned in the said club. He was detailed as one of their
security guards.

3. On November 2011, he, together with his other colleagues was

informed by Alta Vista that they had terminated the Contract of
Security Services with Equator Knights Agency.

4. They were informed that Equator Knights Agency failed to

renew their license to operate a security agency.

5. They further informed them that a new agency, the New Cebu
Nino Security Agency will take the place of Equator Knights
Agency.

6. Alta Vista informed them that they may facilitate their transfer
to New Cebu Nino Security Agency. Complainant later learned
that Ramonito Arquiza, the owner of New Cebu Nino Security
Agency, is a shareholder of Alta Vista Golf and Country Club. It
was Ramonito Arquiza who convinced them. Complainant later
learned that Ramonito Arquiza is Alta Vistas Chairman of
Caddie Committee.

7. They were told that there will be no more hassle in transferring

to New Cebu Nino Security Agency since they were already
favorably endorsed by Alta Vista Golf and Country Club.

8. There was no need for them to go through the whole hiring

process because Alta Vista had already endorsed them and that

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 the former were pleased and contented of their work
performance.

9. Because complainant had nowhere to go, he agreed to what Alta

Vista management had suggested. Complainant, and with
several others were made to be under New Cebu Nino Security
Agency.

10. They were only made to submit the basic requirements to New
Cebu Nino Security Agency, the 201 File, which comprises
among others, the following; Police Clearance, Barangay
Clearance, Drug and Neuro Test.

11.They were never interviewed by New Cebu Nino Security

Agency, nor were their service to Alta Vista interrupted. They
never get any detail assignment from the management of New
Cebu Nino Security Agency. They simply continued their work
in Alta Vista Golf and Country Club.

12.Since then, complainants work was supervised by Alta Vista

Golf and Country Club, through its Corporate Security Officer

13.Last 22 February 2017, complainant received a Recall Order /

Relief Order from the Office of New Cebu Nino Security Agency.
The Order was in pursuance to a Letter Request for his relief
because of this alleged unsatisfactory / inconsistent
performance, as recommended by Alta Vistas Corporate
Security Officer Modesto Bajenting. Attached herewith as
ANNEX A is the Recall Order dated 22 February 2017.

14.Complainant was informed by New Cebu Nino Security Agency

that due to his Recall Order / Relief Order, his new work
assignment shall be at SM Seaside City Cebu, which was
relatively far from his previous workplace. It was likewise
inconvenient for complainant to attend to his new workplace, as
it is located several kilometers away from this residence.
Moreover, there are no public utility jeepneys that traverse to SM
Seaside City Cebu.

ISSUES

WHETHER OR NOT THERE EXISTS AN EMPLOYER-EMPLOYEE

RELATIONSHIP BETWEEN ALTA VISTA GOLF AND
COUNTRY CLUB AND COMPLAINANT;

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 WHETHER OR NOT THE COMPLAINANT WAS ILLEGALLY
DISMISSED BY ALTA VISTA GOLF AND COUNTRY CLUB;

WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO

BACKWAGES AND HIS OTHER CLAIMS.

ARGUMENTS AND DISCUSSION

AN EMPLOYER-EMPLOYEE RELATIONSHIP EXISTS BETWEEN

ALTA VISTA GOLF AND COUNTRY CLUB AND COMPLAINANT.

The determination of whether an employer-employee

relationship exists between parties is vital. Under the Labor Code,
entitlement to the basic labor standards benefits and other labor
relations are largely dependent on the existence of employer-
employee relationship between the parties.

Secondly, the existence of employer-employee relationship

between the parties will determine whether the controversy should fall
within the exclusive jurisdiction of this Honorable Board. Otherwise,
it may be cognizable by other courts.

Is the complainant an employee of Alta Vista Golf and Country

Club? Or of New Cebu Nino Security Agency?

Complainant is an employee of Alta Vista Golf and Country

Club, and not of New Cebu Nino Security Agency.

As decided in the case of Gregorio V. Tongko v. The Manufacturers

Life Insurance Co. (Phils.), Inc. and Renato A. Vergel de Dios, G.R. No.
167622, January 25, 2011, and in formidable line of numerous decisions
by the Supreme Court, the latter has laid down the four-fold test to be
generally considered in determining the existence of an employer-
employee relationship; 1.) selection and engagement of the employee;
2.) the payment of wages; 3.) the power of dismissal; 4.) the
employers power to control the employee with respect to the means
and method by-which the work is to be accomplished

1. SELECTION AND ENGAGEMENT OF THE EMPLOYEE

Complainant was initially hired by Equator Knights Security
Agency sometime January 2011. He was interviewed, screened and
was asked to file his 201 File, which comprises the basic employment

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requirements. He was then detailed to be one of the Security Guards
of Alta Vista Golf and Country Club. His deployment to Alta Vista was
by virtue of a Service Agreement between Alta Vista and Equator
Knights Security Agency.

On November 2011, it was announced by Alta Vista management

that they had terminated the service contract with Equator Knights
due to the fact that the latter failed to renew their license to operate a
security agency. They later learned that New Cebu Nino Security
Agency is the agency contracted with by Alta Vista.

The complainants, with all the other security guards were talked to
by Mr. Ramonito Arquiza, a stockholder of Alta Vista Golf and
Country Club, and the Chairman of the Caddie Committee of the
latter. He convinced the former guards of Equator Knights to transfer
to New Cebu Nino Security Agency. The complainant later learned
that Mr. Ramonito Arquiza is the owner/proprietor of New Cebu
Nino Security Agency.

They were convinced that since Alta Vista is contented and pleased
of their performance, they need not undergo the process of selection
and hiring. They only need to submit an updated 201 File. While all
these talks were made, their work and assignments in Alta Vista
continued. There was no stoppage of employment.

In effect, it was Alta Vista Golf and Country Club who endorsed
and hired complainant

2. PAYMENT OF WAGES

Since the very beginning, the salaries / wages of complainant were

paid by Alta Vista Golf and Country Club. Attached herewith are pay
slips issued to complainant which reflected the name Alta Vista.
Attached are copies of payslips of the complainant which reflect the
company name Alta Vista, marked as ANNEXES B, C, D, E
and F.

3. THE POWER OF DISMISSAL

The power to discipline and dismiss is only to be exercised by the

employer.

Ever since the complainant started working in Alta Vista Golf and
Country Club its Corporate Security Officer was responsible in giving

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 them, among others; orders on attendance, behavior, attendance and
shifting.

Alta Vista Corporate Security Officer, in the person of Modesto

Bajenting on a regular basis, conducts a meeting with all the security
guards detailed in Alta Vista. It is in these meetings where the policies
and orders are relayed to the security guards.

More importantly, Corporate Security Officer makes a periodic

evaluation of the guards performance at work. He makes letter of
requests for discipline or relief or other necessary recommendations.

It was through Mr. Bajentings letter request to New Cebu Nino

Security Agency that complainant was relieved from his work at Alta
Vista.

In a Recall Order dated 22 February 2017, Corporate Security

Officer Bajenting made a Letter Request (dated 221 February 2017) to
New Cebu Nino Security Agency to relieve complainant from his
assignment in Alta Vista. It was in this letter that complainant was
ordered relieved due to his unsatisfactory / inconsistent performance
as per Mr. Bajentings evaluation.

The Recall Order was dated only one day after the letter request of
Alta Vista was sent to New Cebu Nino Security Agency. Clearly, the
recommendation of Alta Vista was openly adopted by New Cebu Nino
Security Agency. There was no investigation conducted to validate the
truthfulness of the allegations made by the Security Officer. New Cebu
Nino Security Agency never made any queries to the complainant. He
was never asked if the allegations by Mr. Bajenting were true.
Obviously, it was Alta Vista who caused the discipline and dismissal
/ relief of complainant from work.

4. THE EMPLOYERS POWER TO CONTROL THE EMPLOYEE WITH

RESPECT TO THE MEANS AND METHOD BY WHICH THE WORK
IS TO BE ACCOMPLISHED

Of the above-mentioned elements, the right of control is

considered as the most important element in determining the existence
of employment relation.

The control test initially found application in the case of Viaa vs.
Al-Lagadan and Piga, G.R. No. L-8967. May 31, 1956, where the court
held that there is an employer-employee relationship when the person
for whom the services are performed reserves the right to control not

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only the end achieved but also the manner and means used to achieve
that end.

Since then, the Supreme Court had been consistent in applying

this doctrine when it comes to determining if an employer-employee
relationship exists.

Control test refers to the employers power to control the

employees conduct not only as to the result of the work to be done but
also with respect to the means and methods by which the work is to be
accomplished.

Alta Vista controls the conduct of the guards work not only as to
the result of the work to be achieved, but most especially with respect
to the means and methods by which the work is to be accomplished.

During the regular meetings conducted by Alta Vistas

Corporate Security Officer Bajenting with the security guards, the
former usually gives orders / commands about guards uniforms, and
attendance. He also orders the assignment of posts of the guards
within Alta Vista. He also has the liberty to rotate or change the work
assignments of the guards. He gives instructions on work shifting,
proper work behavior and discipline. Security Officer Bajenting
reprimands erring guards. The security guards are required to comply
with Alta Vistas policies, rules and regulations.

Evidently, applying the four-fold test in determining employer-

employee relationship, it can be concluded that the complainant is an
employee of Alta Vista Golf and Country Club.

In summary;

1. Alta Vista selected and hired complainant and had him

automatically absorbed by New Cebu Nino Security Agency;
2. Alta Vista pays the wage / salary of complainant was evidenced
by the pay slips attached herein;
3. Alta Vista disciplined complainant, and is responsible in
terminating his employment through letter requests /
recommendations it sends to New Cebu Nino Security Agency;
4. Alta Vista controls the manner in which the complainant
conducts his work, how he performs it and on how to achieve
the end result that the club desires.

With all of the foregoing facts, it can be gleaned that complainant is

an employee of Alta Vista Golf and Country Club.

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 Complainant is not an employee of New Cebu Nino Security
Agency.

1. He was not hired by New Cebu Nino Security Agency. He was

merely asked to submit his updated 201 File to its office.
2. His salary was not paid by New Cebu Nino Security Agency.
Nowhere in the complainants payslips will show the name New
Cebu Nino Security Agency. Most, if not all, showed the
company name Alta Vista.
3. He was not disciplined by New Cebu Nino Security Agency. It
was Alta Vista that reprimanded, gave orders and instructed
complainant to adopt the clubs policies.
4. The manner in which he conducts his work was not directed to
by New Cebu Nino Security Agency. It was Alta Vista who
controlled the manner and method by which complainant
worked in the premises of Alta Vista.

COMPLAINANT WAS ILLEGALLY TERMINATED BY ITS

EMPLOYER ALTA VISTA GOLF AND COUNTRY CLUB

After having clearly established that complainant was an

employee of Alta Vista, it is of equal importance to determine if his
termination from service was done in compliance with the substantive
and procedural due process under the Labor Code.

Under the Labor Code, an employees employment may only be

terminated if it is due to a just / authorized cause, and that the
employer followed the 2-notice rule in the conduct of investigation and
termination. It is evident in the above-stated case that the Alta Vista
neither complied with the substantive due process, nor with the
procedural due process.

In a string of cases decided by the Supreme Court, among it was

King of Kings Transport, Inc. v. Mamac, G.R. No. 166208, June 29, 2007,
the following steps must be followed to ensure that the dismissed
employee is given due process:

(1) The first written notice to be served on the employees

should contain the specific causes or grounds for termination
against them, and a directive that the employees are given the
opportunity to submit their written explanation within a
reasonable period. Reasonable opportunity under the Omnibus
Rules means every kind of assistance that management must
accord to the employees to enable them to prepare adequately for

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 their defense. This should be construed as a period of at least five
calendar days from receipt of the notice xxxx Moreover, in order
to enable the employees to intelligently prepare their explanation
and defenses, the notice should contain a detailed narration of the
facts and circumstances that will serve as basis for the charge
against the employees. A general description of the charge will
not suffice. Lastly, the notice should specifically mention which
company rules, if any, are violated and/or which among the
grounds under Art. 288 [of the Labor Code] is being charged
against the employees

(2) After serving the first notice, the employees should

schedule and conduct a hearing or conference wherein the
employees will be given the opportunity to (1) explain and clarify
their defenses to the charge against them; (2) present evidence in
support of their defenses; and (3) rebut the evidence presented
against them by the management. During the hearing or
conference, the employees are given the chance to defend
themselves personally, with the assistance of a representative or
counsel of their choice x x x.

(3) After determining that termination is justified, the

employer shall serve the employees a written notice of
termination indicating that: (1) all the circumstances involving
the charge against the employees have been considered; and (2)
grounds have been established to justify the severance of their
employment.

In the case of the complainant, he was only given a Notice of

Termination, in a form of Recall Order, dated 22 February 2017,
relieving him from his post at Alta Vista. This was due to the
recommendation made by Alta Vista Corporate Security Officer
Modesto Bajenting.

Complainant was never given a chance to explain, nor was he given

a hearing for him to air his side.

He was simply furnished a copy of a decision relieving him from

post allegedly due to his poor performance.

Complainant was dismissed by his employer Alta Vista Golf and

Country Club without due process of law.
When the a copy of the Recall Order was furnished to the
complainant, he was simply informed by New Cebu Nino Security
Agency that his work new work assignment shall be at SM Seaside
Cebu.

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 In the case of ICT MAJRKETING SERVICES, INC. (NOW KNOWN
AS SYKES MARKETING SERVICES, INC.) vs. MARIPHIL L. SALES,
G.R. No. 202090, September 09, 2015, the Supreme Court laid down
jurisprudential guidelines concerning the transfer of employees. To
wit;

(a) a transfer is a movement from one position to another

of equivalent rank, level or salary without break in the service or
a lateral movement from one position to another of equivalent
rank or salary; (b) the employer has the inherent right to transfer
or reassign an employee for legitimate business purposes; (c) a
transfer becomes unlawful where it is motivated by
discrimination or bad faith or is effected as a form of punishment
or is a demotion without sufficient cause; (d) the employer must
be able to show that the transfer is not unreasonable,
inconvenient, or prejudicial to the employee.

The transfer of complainant from his post in Alta Vista to his new
assigned post at SM Seaside Cebu was clearly made in bad faith and
with discrimination. It was not made as a legitimate business decision,
but one that is tainted with vengeance and spite by its Corporate
Security Officer Modesto Bajenting.

On several occasions, misunderstandings between the complainant

and Security Officer Bajenting occurred. As a matter of fact,
complainant had confronted Mr. Bajenting regarding numerous
anomalies and irregularities inside the premises of Alta Vista. On all
of these complaints, Mr. Bajenting always placed the blame on
complainant.

Therefore, it is patently unfair and illegal to terminate

complainants work at Alta Vista and give him another post only on
the basis of the personal issues between an officer of Alta Vista, and
not based on the any of the just / authorized causes given by the Labor
Code.

Aside from that, unsatisfactory performance may only be

acceptable when it can be clearly and distinctly shown that said
performance amounted to gross and habitual neglect of duty, which is
one of the just causes of dismissal.
The principle in jurisprudence that the onus of proving that the
employee was dismissed for a just cause rests upon the employer still
stands. The failure of Alta Vista to discharge that burden would result
in finding that the dismissal is unjustified.

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 There was no showing that complainant was investigated for his
poor performance. There was no mention of infractions or violations
of company policies.

Thus, the only tenable reason why he was transferred was with the
spats that he had with Corporate Secretary Bajenting. He was not
transferred due to his poor performance which led to habitual neglect
of duty.

In the above-cited case of ICT MAJRKETING SERVICES, INC.

(NOW KNOWN AS SYKES MARKETING SERVICES, INC.)
vs. MARIPHIL L. SALES, Supreme Court ruled that;

Thus, the only conceivable reason why petitioner transferred

respondent to another account is the fact that she openly and
bravely complained about the supposed anomalies in the
Washington Mutual account; it is not her "derogatory record"
or her "attendance and punctuality issues", which are
insignificant and thus irrelevant to her overall performance in
the Washington Mutual account. And, as earlier stated,
respondent's "attendance and punctuality issues" were
attributable to petitioner's indifference, inaction, and lack of
sensitivity in failing to timely address respondent's complaint.
It should share the blame for respondent's resultant
delinquencies.

Thus, in causing respondent's transfer, petitioner clearly acted

in bad faith and with discrimination, insensibility and disdain;
the transfer was effected as a form of punishment for her raising
a valid grievance related to her work. Furthermore, said transfer
was obviously unreasonable, not to mention contrary to
experience, logic, and good business sense. This being the case,
the transfer amounted to constructive dismissal.

The managerial prerogative to transfer personnel must be

exercised without grave abuse of discretion, bearing in
mind the basic elements of justice and fair play. Having the
right should not be confused with the manner in which that right
is exercised. Thus, it cannot be used as a subterfuge by the
employer to rid himself of an undesirable worker. In
particular, the employer must be able to show that the
transfer is not unreasonable, inconvenient or prejudicial
to the employee; nor does it involve a demotion in rank or
a diminution of his salaries, privileges and other
benefits. Should the employer fail to overcome this burden

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 of proof, the employee's transfer shall be tantamount to
constructive dismissal, which has been defined as a quitting
because continued employment is rendered impossible,
unreasonable or unlikely; as an offer involving a demotion in
rank and diminution in pay. Likewise, constructive
dismissal exists when an act of clear discrimination,
insensibility or disdain by an employer has become so
unbearable to the employee leaving him with no option
but to forego with his continued employment.

Evidently, complainant was constructively dismissed. His transfer

was tainted with evident bad faith and discrimination. It was
unreasonable, prejudicial to the employee, without sufficient basis and
inconvenient.

Aside from that, it is extremely inconvenient for complainant to

report to SM Seaside Cebu. He is residing close to Alta Vista Golf and
Country Club. His transfer to SM Seaside Cebu would entail
additional transportation costs and travel time. There is no public
utility jeepney that traverses from his home to SM Seaside Cebu. As a
matter of fact, no public utility jeepney reaches SM Seaside Cebu. One
has to use his/her own vehicle or hire a taxicab.

COMPLAINANT IS ENTITLED TO BACKWAGES AND OTHER

CLAIMS

Since it had been undeniably shown that complainant was illegally

terminated, he must be accorded with backwages from the time he was
illegally terminated until he is reinstated to work, if reinstatement is
still viable.

In the case of Golden Ace Builders v. Talde, G.R. No. 187200, May 05,
2010, the Court ruled;

Thus, an illegally dismissed employee is entitled to two

reliefs: backwages and reinstatement. The two reliefs provided
are separate and distinct. In instances where reinstatement is no
longer feasible because of strained relations between the employee
and the employer, separation pay is granted. In effect, an illegally
dismissed employee is entitled to either reinstatement, if viable,
or separation pay if reinstatement is no longer viable, and
backwages.

The normal consequences of respondents illegal dismissal,

then, are reinstatement without loss of seniority rights, and
payment of backwages computed from the time compensation
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 was withheld up to the date of actual reinstatement. Where
reinstatement is no longer viable as an option, separation pay
equivalent to one (1) month salary for every year of service
should be awarded as an alternative. The payment of separation
pay is in addition to payment of backwages.

Further, in the case of Velasco v. National Labor Relations Commission,

G.R. No. 161694, June 26, 2006, the Court emphasized that,

Under the doctrine of strained relations, the

payment of separation pay is considered an acceptable
alternative to reinstatement when the latter option is no
longer desirable or viable. On one hand, such payment
liberates the employee from what could be a highly oppressive
work environment. On the other hand, it releases the employer
from the grossly unpalatable obligation of maintaining in its
employ a worker it could no longer trust.

Strained relations must be demonstrated as a

fact, however, to be adequately supported by evidence
substantial evidence to show that the relationship between the
employer and the employee is indeed strained as a necessary
consequence of the judicial controversy.

In the present case, the Labor Arbiter found that

actual animosity existed between petitioner Azul and
respondent as a result of the filing of the illegal dismissal
case. Such finding, especially when affirmed by the
appellate court as in the case at bar, is binding upon the
Court, consistent with the prevailing rules that this Court
will not try facts anew and that findings of facts of quasi-
judicial bodies are accorded great respect, even finality.

With the arbitrary dismissal, it is clearly manifested that there is an

atmosphere of antagonism and distrust between the complainant and
Corporate Security Officer.

Thus, complainant must be given backwages and separation pay, in

lieu of reinstatement.

Complainant is entitled to separation pay which is computed at

one-month salary for every year of service, a fraction of at least six (6)
months considered as one whole year. In the computation of
separation pay, the period where backwages are awarded must be
included.

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 Therefore, he is to be paid backwages of Php 20,206.62 (for 68 days,
from February 23 to May 12, 2017, at a rate of Php 42.63 per hour) and
separation pay of Php 53,202.24 (for 6 years from January 2011
December 216 at a rate of Php 8,867.04 per month with 208 hours per
day at Php 42.63 per hour).

Thus, complainant is entitled to a total of Php 73,408.86.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

for of this Honorable Commission that judgment be rendered on the
following;

1. Declaring the dismissal of the complainants as illegal;

2. Ordering Alta Vista Golf and Country Club to pay complainants

backwages and separation pay for a total of Php 73,408.86.

Other relief, just and equitable under the premises are likewise
prayed for.

12 May 2017. Cebu City, Philippines.

NEUMERAN JAYMA & ASSOCIATES

Suite 312-A, WDC Bldg., Osmea Blvd., Cebu City
Counsel for the complainant
Tel. No. 254-0440
Email: john.neumeran@lawyer.com

By:

TIFFANY L. TUACAO
Attorneys Roll No. 65185
IBP No. 1042622, 06-15-2016 Ermita Manila
PTR No.1035775, 07-19-2016 Cebu City
MCLE Compliance EXEMPT, admitted to the Bar on 17 June 2016

COPY FURNISHED/EXPLANATION:

NEW CEBU NINO SECURITY AGENCY

489-A P. del Rosario Extension, Cebu City

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Registry Receipt No. ____________
Issued on ____ May 2017
Issued at Cebu City Hall Post Office

ALTA VISTA GOLF AND COUNTRY CLUB

Aznar Road, Pardo Hills, Pardo, Cebu City
Registry Receipt No. ____________
Issued on ____ May 2017
Issued at Cebu City Hall Post Office

Copy of this Position Paper was furnished to the above-named offices by

registered mail per registry receipt numbers as above-indicated personal service
being impracticable due to time constraints, the unfamiliarity with the
respondents counsels office address and the citys heavy traffic to conduct the
same.

Tiffany L. Tuacao

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