Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

MICHAEL CABALIDA RETABALE, et al,

Complainant,

-versus- CASE NO. NCR-12-18380

Labor Arbiter:
Hon. Renaldo O. Hernandez

RS CARSON GEN. CONSTRUCTION CORP.

RAUL M. TUAZON,

Respondents.
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POSITION PAPER
(For the Complainants)

Complainants, assisted by the Public Attorney’s Office, unto this Honorable

Arbitration Branch, most respectfully state that:

THE PARTIES

Complainant MICHAEL CABALIDA RETABALE, is of legal age and

Filipino citizen and may be served with summons and other legal processes at
Imperial St. Barangay E. Rodriguez, Quezon City, NCR 1100. Co-complainant
PREMO PACANG LUMANAO is also of legal age and a Filipino citizen. He may
also be served summons and other legal processes at the above mentioned address.

Respondent Company RS CARSON GEN. CONSTRUCTION CORP., is a

corporation duly organized and existing under Philippine laws and may be served
with summons and other legal processes at Franco Drive, Manalac Industrial Estate,
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Bagumbayan NCR 1631. Respondent RAUL M. TUAZON is impleaded herein as

OWNER/MAGANGER/PRESIDENT of the above corporation and may be served
with summons and other legal processes at the same address.

STATEMENT OF FACTS

I. Complainant MICHAEL C. RETABLE

On August 14, 2017 at Taguig City, Complainant RETABLE signed an

employment contract with RS Carson General Construction Corporation. Attached
hereto as ANNEX “A” is the employment contract of the Complainant. As clearly
indicated in the contract, the Complainant was hired to be a safety officer of the
respondent company in its SM KEPPEL PROJECT. More importantly, according to
the contract, the duration of his work in the said project was CO-TERMINUS with
the project.

In fact, item #8 of the employment contract clearly stated that UPON

STOPPAGE or COMPLETION of the project, or expiration of the contract period the
employment contract/ employee-employer relationship will automatically lapse
without need for further notice.

However, on November 19, 2017, merely three months in, since the SM
KEPPEL Project started the HRD officer summoned the Complainant and informed
him that he has been terminated. When the complainant asked why he was being
terminated, he was informed that management decided to reduce staff members.

The Complainant argued that, it was clearly stated in the contract that his stay
with the company was CO-TERMINUS with the SM KEPPEL PROJECT, and as
such, his termination would be premature and thereby illegal. Also, he was merely
verbally terminated and was not given any prior written notice. This prevented him to
prepare for his untimely separation with the company causing him, and his family
much hardship in the succeeding days after he was terminated.
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II. Complainant PREMO PACANG LUMANAO

Similar with the Complainant RETABLE, Complainant LUMANAO was also

hired to work as a safety officer for SM KEPPEL PROJECT. However, his
termination with the company was not just due to the need reduce staff but allegedly
due to a violation which he committed on NOVEMBER 29, 2017 at 9:45 pm.
According to the Incident report which was used by the company to justify his
termination he was “ALLEGEDLY SLEEPING/STANBY WHILE WAITING to
PULL OUT FROM SITE.” Attached hereto as “ANNEX B” is the INCIDENT
REPORT dated December 1, 2017 for perusal. Through this incident report, the
company wanted to paint a picture that the Complainant was allegedly remiss in his
duties at that time.

When the Complainant found out that he was a candidate for termination by
reason of the said incident, he informed the company that he did not violate any rule
nor committed any action contrary to the rules of the company since at that time he
was “Caught sleeping” he was not on duty. To attest the same, attached hereto as
“ANNEX C” is his LOG SHEET. Clearly showing that on November 29, 2017 he
was already OFF DUTY when he was caught sleeping.

Despite his justification, the company terminated him.

Both SAFETY OFFICERS seek the help of this Honorable Office, because to
their minds, the Respondent company violated their labor rights specifically their
contractual right of security of tenure. The project has not been completed when they
were both terminated. In addition for Complainant Lumanao, he was illegally
terminated without any valid reason.

Both employees are also adamant that their termination was done illegally.
Sometime on December 2017 when they visited their former work place, they
observed that there were already NEW safety officers who were from another project
(OKADA project) who replaced them. Hence, if there was actually a need to reduce
staff on November 2017, hiring new people to replace them was simply illogical.
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ISSUES

Complainants respectfully submit the following as the issues to be resolved by

the Honorable Arbiter in this case:

1. Were the Complainants illegally dismissed?

2. Are the Complainants entitled to damages and other money claims?
3. Are the Complainants entitled to Attorney’s Fees?

ARGUMENTS/DISCUSSIONS

Complainant was illegally dismissed.

As project employees, respondents termination is governed by Section 1 (c)

and Section 2 (III), Rule XXIII (Termination of Employment), Book V of the
Omnibus Rules Implementing the Labor Code.

Section 1 (c), Rule XXIII, Book V of the Omnibus Rules Implementing the
Labor Code states:

Section 1. Security of tenure. (a) In cases of regular

employment, the employer shall not terminate the services of an
employee except for just or authorized causes as provided by law, and
subject to the requirements of due process.

xxxx

(c) In cases of project employment or employment covered

by legitimate contracting or sub-contracting arrangements, no
employee shall be dismissed prior to the completion of the project
or phase thereof for which the employee was engaged, or prior to
the expiration of the contract between the principal and
contractor, unless the dismissal is for just or authorized cause
subject to the requirements of due process or prior notice, or is
brought about by the completion of the phase of the project or
contract for which the employee was engaged (Emphasis Ours)
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The law clearly states that “no employee shall be dismissed prior to the
completion of the project or phase thereof for which the employee was engaged.
Hence, the termination of complainant Retable obviously runs contrary to the spirit
of the law because at the time he was terminated, the SM KEPPEL PROJECT has not
yet been completed.

With regard to Complainant Lumanao, his termination as shown by evidence,

lacks basis. How can he be charged by the company of sleeping while on duty, when
his shift had already ended at the time of the commission of the alleged offense.

The respondent company clearly acted in bad faith and wanton disregard of
rules and procedures laid down by law. He should have not been terminated.

Law provides that project based employees may only be terminated while the
project for which the employees has been hired if (1) the project has already been
completed, (2) if the time or term of the project has already lapsed (3) if there are just
causes which merit his termination provided due process is observed.

Item number three (3) was not applied in this case because his (Lumanao)
termination was not due to a just cause and his counter evidence submitted was
simply disregarded by the respondent company.

In Brahm Industries, Inc. vs NLRC (G.R. No. 118853, October 16, 1997), the
Supreme Court had made it clear that the matter concerning the dismissal of workers
are admittedly within the ambit of management prerogative. However, there were
certain requirements laid down by law which must be complied with to insure that the
prerogative is exercised without arbitrariness or abuse of discretion. Our legal system
dictates that both the reason for and the manner of dismissing a worker must be
appropriate otherwise the termination itself is gravely defective and may be declared
unlawful. This is because a worker’s job has some of the characteristics of
property rights and is therefore within the constitutional mantle of protection
that “no person shall be deprived of life, liberty or property without due process
of law nor shall any persons be denied the equal protection of the laws.
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Complainant is entitled to their money claims.

Considering that the complainants were made to discontinue their work for no
valid reason, they are entitled to reinstatement (if project has not yet been completed)
with full back-wages or separation pay and other benefits due him as provided for
under Labor Code.

Considering that complainants were project-based employees, they should be

given the benefits of holiday pay/premium, rest day premium. Said benefits were non-
existent in respondents’ corporation contract and in violation of the Labor Code and
other existing laws.

Complainants are entitled to the award of Moral Damages, Exemplary Damages

and Litigation Expenses.

Moral damages has been defined as to include physical suffering, mental

anguish, fright, serious anxiety, besmirched reputation and other similar injury.
Albeit moral damages are, as a rule, not capable of pecuniary estimation,
nevertheless, if complainant was able to prove to have suffered any of the
aforementioned feelings, the law authorizes the injured party to recover something
from the wrongdoer in consonance with the maxim, “when there is an injury, there is
remedy”. Upon the other hand, exemplary damages are those imposed by way of
example or correction with the end in view that others may be prevented from
committing similar acts.

In labor cases, however, in order to warrant an award for moral and exemplary
damages, it is not enough that the private complainant suffered injuries. It is of
greatest necessity that the injuries sustained by the private complainant arises out
from the wrongful or perverse act by the respondent. The act of the employer in
illegally terminating or dismissing the employee must be attended by bad faith, fraud
or constitute an act oppressive to labor, or done in a manner contrary to laws, morals,
good customs or public policy.
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In the instant case, not only was there a violation or breach of the
complainant’s right to security of tenure, but more importantly, the respondents acted
fraudulently, in evident bad faith and wanton disregard of the protection accorded by
labor to the working class when it disregarded the complainants’ right to due process.

Moreover, due to the immediate discontinuance of the complainants’ services

from their work, they suffered serious financial instability. Hence, the award of Moral
damages to the complainants are warranted.

Finally, in order to deter other employer from adopting similar devious acts
and to serve as an example to the public in general, public policy dictates that the
wanton and malevolent attitude of the employer be suppressed. Henceforth, the
award of exemplary damages is proper.

Accordingly an award for Attorney’s Fees is proper. Based on the Revised

Implementing Rules of R.A. 9406 also known as the PAO Law, clients represented by
the PAO shall be entitled to 10% of the judgment award. Such award shall be
deposited to the National Treasury.

WHEREFORE, it is respectfully prayed of this Honorable Office that the

judgment be rendered in favor of the complainants and against herein respondents:

a) Declaring the dismissal of herein Complainants as illegal;

b) Directing the respondent company to pay Complainants separation pay and

back wages computed from the time their compensation was withheld from them up
to the time of the finality of the judgment of this Honorable Office;1

c) Directing the respondent to pay Complainants their unpaid, holiday

pay/premium.

c) Moral and Exemplary damages and Attorney’s fees, the amounts of which
are left to the sound discretion of this Honorable Office.

1
Both complainants have a monthly salary of P14,500.00.
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Other reliefs just and equitable under the laws and jurisprudence are likewise
prayed for.

Quezon City, February 16, 2018.

MICHAEL CABALIDA RETABLE

Complainant

PREMO PACANANG LUMANAO

Complainant

By:

ATTY. FRANCIS IMMANUEL DC PANGANIBAN

Counsel of the Complainants
Public Attorney II
Roll No. 66367
IBP Lifetime No./Receipt: AR000285, 12/28/2017
MCLE Comp. Admitted to the Bar 2015
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Republic of the Philippines)

Quezon City ) S.S.

CERTIFICATION AND VERIFICATION

I, the undersigned affiant, after being duly sworn in accordance with law,
depose and state that:

1. I am the complainant in the above-entitled case;

2. I have caused the preparation of the above Position Paper, the contents of
which are true and correct of my own personal knowledge;

3. I certify that I have not commenced any other action or proceeding

involving the same issues in the Supreme Court, Court of Appeals, or different
divisions thereof, or any other tribunal or agency;

4. To the best of my knowledge, no such action is pending in the Supreme

Court, Court of Appeals, or any other tribunal or agency;

5. If I should thereafter learn that similar actions or proceedings have been

filed or is pending before the Supreme Court, Court of Appeals or different divisions
thereof, or any other tribunal or agency, I shall undertake to report that fact to the
Honorable labor Arbiter within five (5) days there from.

IN WITNESS WHEREOF, I have hereunto set my hands this ___ th day of

February, 2018 at Quezon City, Metro Manila.

MICHAEL CABALIDA RETABLE

Complainant

PREMO PACANANG LUMANAO

Complainant

SUBSCRIBED AND SWORN TO BEFORE ME, this ___ day of February,

2018 at Quezon City, Metro Manila.
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