Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
__________ DIVISION

KRISTINE ANGELA G. BAUTISTA,

Complainant,

NLRC LAC ____________________

-versus- NLRC NCR CASE NO. 12-16350-13
HON. MAYJARAN AJAN

SITEL PHILIPPINES / MS. IVY GAMBAN

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

MEMORANDUM OF APPEAL
COMPLAINANT(APPELLANT), unto the Honorable Commission, most
respectfully gives notice that she is appealing the decision of the Honorable Arbiter in
the above entitled case, and states:

TIMELINESS OF THE APPEAL

This is a TIMELY APPEAL of the decision of the Honorable Arbiter MAYJARAN

H. AJAN dated June 25, 2014 which DISMISSED the complaint for illegal dismissal.
The said Decision was received by the undersigned counsel on September 22, 2014,
giving the complainant until October 2, 2014 to file the appeal. Hence, this appeal is
filed on time.

THE PARTIES

COMPLAINANT (APPELLANT) is a Filipino, of legal age, with address at No.

1103 pioneer East Towers, Mandaluyong City, where she could be served with
summons and other legal processes.

RESPONDENT SITEL PHILS. appears to be a corporation organized under

Philippine laws, while individual respondent IVY GAMBAN is the responsible officer
thereof, with address at Sitel Bldg., Ortigas Home Depot Complex, One Juliana
Vargas Ave., Ortigas, Pasig City, where they could be served with summons, notices
and other processes.

STATEMENT OF FACTS

Complainant is a REGULAR employee of respondents since June 22, 2010

with the position of TEAM LEADER (TL). Respondents are engaged in the Business
Process Outsourcing (BPO) industry. As TL, complainant’s responsibilities include:

1
 Complainant faithfully and diligently performed her duties with the respondent.
Complainant herein is NO ORDINARY TEAM LEADER. She is, in fact, one of the
BEST PERFORMING Team Leaders in the respondent company. To prove this,
complainant was “CONSISTENTLY” given the TOP COACH AWARD for TWO (2)
CONSECUTIVE years: --

TOP COACH FOR 1ST TO 2ND QUARTER 2011

TOP COACH FOR JANUARY 2012

As stated in the aforesaid AWARDS, respondent company recognized the

dedication of the complainant to her work with the Virgin Media account. Thus:

“She is the most proactive when it comes to tasks and recommendations. This
translated to CONSISTENTLY BAGGING Upsell’s TOP COACH TITLE.”

Thereafter, in view of her exemplary performance, complainant was one of the

select Team Leaders who were HANDPICKED by the respondent company to be part
of MACY’S, a new and prestigious account of respondent company sometime in May
2012. On account of her exemplary performance, complainant was even sent to the

2
corporate offices of MACY’S in the Mason, Ohio, UNITED STATES OF AMERICA
(USA) for training. Out of the 1200 EMPLOYEES of respondent company,
complainant was chosen with eleven (11) other employees to represent the
respondents company in MACY’s, USA.

Complainant would not have been personally invited by the respondent

company where it not for her extreme dedication in her work. Complainant spent 26
days in training abroad from June 11 to July 6, 2012. After her training, she went back
to respondent company where she was a CONSISTENT TOP PERFORMER in the
MACY’S account. As proof, attached as ANNEX A of the REPLY is the personal
invitation of respondent company to the complainant to attend the MACY’S “Train-the-
Trainer” session in Mason, Ohio, USA, and ANNEX B of the REPLY is the letter
request of MACY’s to the consulate general of the USA in Manila Philippines,
requesting that a VISA be issued to the complainant.

As stated in the personal invitation, the respondent company expressed their

FULL TRUST AND CONFIDENCE to the complainant by stating that “we appreciate
your willingness to attend and know that you will represent us well.”

Aside from those awards, complainant was also awarded the title by the
respondents as: “COACH OF THE YEAR 2011-2012 FOR VIRGIN MEDIA SALES”
As COACH OF THE YEAR, respondents gave the complainant a glass trophy in
recognition of her dedication to her work. However, in spite of her exemplary
performance, complainant was constructively dismissed on November 26, 2013,
without any fault on her part and without due process of law.

In view of complainant’s “consistently bagging xxx the top coach title”in the
Virgin Media account and consistent top performance in the MACY’s account, she was
personally invited to join the FDC account by Ms. Dahlia Romana, Senior Client
Services Manager of the FDC account. This is when her NIGHTMARE began.

As narrated by the complainant:

I, Kristine Angela Gapuz Bautista, 33 years old, currently residing at

U1103 Pioneer East Towers Mandaluyong City. I was hired at Sitel Philippines
last June 22, 2010 as a Team Leader/Coach for Sales.

My first account was Virgin Media Sales for Outbound located at

Cybergate Tower 2, Mandaluyong, I stayed on that account from June 2010 to
May 2012 where I received the Coach of the Year Award. I was then
transferred to Macys Sales from June 2012 to August 2013.

In view of my exemplary performance, I was invited to join FDC account

(First Data Corporation) by Ms. Dahlia Romana, Senior Client Services
Manager of the company sometime in May 2013. I joined the account on
August 2013.

However, for reasons known only to them, I began experiencing

constant humiliation and harassment at the hands of the following senior
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company officials, namely: Senior Operations Manager FRANCIS EDWARD
AYALA, Operations Manager MARC FERDINAND LEONCIO, and also from
Dahlia Romana,. Thus:

October 5, 2013 - I was summoned by Manager Mark Ferdinand

Leoncio sometime around 8:00 am on the vacant room located at the ground
floor of SITEL BUILDING Ortigas Home Depot Complex One Julia Vargas
Avenue, Ortigas Center Pasig City. He was very FURIOUS and made the
following statements to me:

"ALAM MO BANG BADTRIP AKO SAYO, AT PAG BADTRIP AKO SA

TAO, SINASABI KO"
"KAPAG NAHANAPAN KITA NG BUTAS, SISIGURADUHIN KONG
SUSUNUGIN KITA!"
"I AM NOT THREATENING YOU! TANDAAN MO YAN!"

Mr. Leoncio REPRIMANDED me for an office violation of alleged

sleeping while on duty as cited in the company’s Code of Conduct: Acts
Against Good Conduct and Behavior- Personal Demeanor. I received the
CARE Form (Notice to Explain) dated October 8, 2013 and along with
ANOTHER alleged violation of Acts Against House Rules, Safety and Security
27: Breach of Company Policy and Procedure on site Security.

October 8, 2013 – On the same date, I was issued a ANOTHER

company violation: Breach of company policy usage of cellphone inside a PCI
compliant workplace. Please see attachment for my response against the
violation.

October 9, 2013 -I was asked by Dahlia Romana to have a

conversation with Senior Operations Manager Francis Edward Ayala at his
office located at the Ground Floor of of Sitel Building at around 6:00 am. While
pointing his finger at my face, he shouted:

”KAPAG KINAKAUSAP KITA TUMINGIN KA SA AKIN!”

“TUMINGIN KA SA AKIN AT KINAKAUSAP KITA!”
“ALAM MO BA BAKIT AKO DISAPPOINTED SAYO? KASE IKAW ANG
HIGHEST PAID COACH DITO, ALAM MO BA YUN? GUSTO KO LANG
SULITIN BINABAYAD KO SAYO!”

October 14, 2013 - I submitted my response for my allege violation of

Breach of Security

October 16, 2013 –An administrative Hearing was conducted at the

Ground Floor of of Sitel Building where I was constantly harassed verbally by
Mr. Ayala. He even told me to get a “lawyer” since according to him my
company violations were very serious.

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 October 18,2013 – I sent an email to respondent company’s senior
officers to formally inform them of the constant harassment being employed by
Mr. Ayala, Mr. Leoncio and Ms. Romana against me. However, NO ACTION
was taken by the respondents.

October 19, 2013- Ms. Dahlia Romana filed an incident report against
me for alleged “rumor mongering”.

November 5,2013 - I received another Corrective Action Form from

Mark Ferdinand Leoncio and Francis Edward Ayala, this time accusing me of
the following violation: Against Good conduct and Behavior- Personal
Demeanor

November 7, 2013 - I was issued a SUSPENSION for 5 days for

Breach of company policy: Usage of Cellular Phone inside a PCI Compliant
workplace by Mark Leoncio and Francis Edward Ayala

November 15, 2013 - My COMPUTER was REMOVED from my desk

upon the order of Francis Edward Ayala without notifying me ahead of time.
With this, I was effectively DEMOTED from Training Leader (Supervisory lever)
to a regular AGENT.

November 19, 2013 – Dahlia Romana, requested for a formal meeting

with me together with a company representative to complain about alleged
DISRESPECT I committed against her.

November 25, 2013- I was REMOVED from FDC account by Ms. Ivy
Gamban, HR Manager, and was given a Trainee Evaluation Form.

November 26, 2013 – All of my security badges were DISABLED by the

respondents and so I was no longer allowed to enter the company premises.
Likewise, respondents’ SECURITY PERSONNEL PROHIBITED ME FROM
ENTERING THE SITEL BUILDING.

December 6, 2013 when I went to the company office to inquire about

the status of my employment, Francis Edward Ayala saw me and told me:

“HOY! ANONG GINAGAWA MO PA DITO!”

No return to work order was ever given to the complainant by the respondents
after her unjust removal from her last work assignment.

For reference, please see the attached memorandums from the respondents
as ANNEXES B, C, D and E of her Position Paper. Complainant formally informed the
respondents about the incidents of harassment committed against her, copy of which
is hereto attached as ANNEX F. To date, no action was taken by the respondent
company regarding her complaints aside from an email acknowledging receipt of her
email.

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 Accordingly, right after she was removed from the FDC account without a valid
ground or due process, complainant was no longer allowed to enter the company
premises. Thus, complainant had no other recourse but to consider her employment
as TERMINATED by the respondents and to file this complaint for dismissal.

During the hearings for mediation and conciliation before the Honorable
Arbiter, respondents NEVER DENIED that the complainant was already terminated
from employment. They even accused her of committing fraud during her employment
with the company. NO OFFER was made by the respondents for her to return to
work.

In their Position Paper, respondents allegedly “there is no fact of dismissal to

speak of in the instant case” (page 1 thereof.) and yet, they also claim that
respondents have “VALID CAUSES TO DISMISS” the complainant. (see page 14
thereof). Clearly, complainant was CONSTRUCTIVELY DISMISSED when the
respondents subjected the complainant in FOUR (4) different violations of company
rules covered by FIVE (5) incident reports, all against “good conduct and behavior",
and this happened in a span of less than three months as they EXPRESSLY
ADMITTED by the respondents.

Unfortunately, in spite of the overwhelming evidence to the contrary, Honorable

Arbiter AJAN sided with the respondents' version of the events and believed ALL of
the allegations of the respondents as stated in their pleadings. As ruled by Honorable
Arbiter Ajan:

Based on the evidence adduced from the records of the instant case, it
was sufficiently proven by the respondents that complainant committed a
series of infractions of respondent company’s Code of Conduct that
necessitated the imposition of sanctions as provided under the respondent’s
policy. Her series of infractions are bringing in mobile phone inside a secured
area, sleeping while on duty, creating intrigues or making false statements
against another employee, supervisor or officer of the company that harm or
destroy the reputation, authority or official standing of those concerned, failure
to abide the order of respondents to the HR office while awaiting for the
account fit to her profile, and authorized logging in and out of Sitel’s Eastwood
site and withdrawing salary without proof of productivity in the Eastwood site of
Sitel.

While these infractions are not stipulated in respondent company’s

Code of conduct, these are valid causes to dismiss an employee under Article
282 of the Labor Code, as amended. (page 19 thereof.)

With the said infraction, respondent Sitel was still lenient towards the
committed a series of acts previously, she was only given a few days
suspension. In all, the infractions, she was afforded every opportunities to
explain her side. She was even exonerated from the charges in one of the
infractions (fourth violation).

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 All told, the sending of notices for complainant’s series of infractions,
asking her to explain the alleged irregular acts should not be construed as a
form of harassment. This is merely an exercise of management prerogative to
discipline its employees.

Further, complainant was not placed on floating status from November

25, 2013, as she cannot accept the fact that she failed her training evaluation
assessment, she did not obey the order to report to the HR Office even without
diminution of pay nor demotion of rank. Her filing of the complaint on
December 20, 203 or less than allowable six (6) months floating status from
November 25, 2013, showed no constructive dismissal in the instant case.

Records show that complainant was able to withdraw her salary for the
periods in which she lodged in and out at Sitel’s Eastwood site, or for the
period covering December 1, 2013 until January 8, 2014 (Annex “17”) despite
her absence in the HR office.

WHEREFORE, premises above considered, judgment is hereby

rendered dismissing the instant case of constructive illegal dismissal and
monetary claims for lack of merit.

However, upon just and equitable ground the respondent company is

hereby directed to accept complaint back to work upon her option, within the
(10) days from receipt hereof, but without backwages.

SO ORDERED.

From the foregoing, it is clear that SERIOUS ERRORS IN THE FINDING OF

FACTS were made by the Honorable Arbiter which, if not, corrected, will cause grave
and irreparable damage or injury to appellant. Hence this appeal.

THE ISSUES

1. WHETHER OR NOT HONORABLE ARBITER AJAN ERRED IN NOT

DECLARING THAT THE COMPLAINANT WAS ILLEGALLY
2. WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO REINSTATEMENT
WITH FULL BACK WAGES AND/OR SEPARATION PAY AND MONEY CLAIMS;
3. WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO DAMAGES PLUS
ATTORNEY’S FEES.

ARGUMENTS AND DISCUSSION

COMPLAINANT WAS CONSTRUCTIVELY DISMISSED

It is important to emphasize that the complainant is one of the BEST TEAM

LEADERS of the respondent company, as proven by the NUMEROUS AWARDS
given to her by the respondents. Being an exemplary worker, complainant was given
the rare chance to be TRAINED in the Unites States at the expense of the
respondents. The respondent company even expressed their FULL TRUST AND
7
CONFIDENCE to the complainant, by stating that “we xxx know that you will represent
us well.”

Unfortunately, Honorable Arbiter AJAN gave weight to all the allegations of the
respondents and their incumbent employees and disregarded complainant’s narration
of the events, contrary to the guidelines set forth by the High Court in many cases. In
the recent case of JHORIZALDY UY vs. ENTRO CERAMICA CORPORATION (G.R.
No. 174631, October 19, 2011) the Supreme Court declared that:

“As to the affidavits submitted by the respondents, these are at best

SELF-SERVING having been executed by employees beholden to their
employer xxx.” (Emphasis ours.)

In the aforesaid case, the Supreme Court has commanded labor officials to
exercise GREAT CAUTION in giving weight to affidavits submitted by respondents.
Doubts in the evidence presented must be resolved in favor of the employee. Thus:

Furthermore, Article 4 of the Labor Code expresses the basic principle

that all doubts in the interpretation and implementation of the Labor Code
should be interpreted in favor of the workingman. This principle has been
extended by jurisprudence to cover DOUBTS IN THE EVIDENCE presented by
the employer and the employee.Thus we have held that if the evidence
presented by the employer and the employee are in equipoise, the SCALES
OF JUSTICE must be TILTED IN FAVOR OF THE LATTER.(Emphasis ours.)

Proceeding from the above guidelines set forth by the Supreme Court, it
becomes clear that Honorable Arbiter AJAN committed a patent error when he relied
on EVERYTHING that the respondents have alleged in their pleadings.

It is undisputed that the complainant was a REGULAR EMPLOYEE of the

respondents since 2010. Being a regular employee, complainant is therefore entitled
to SECURITY OF TENURE as enshrined in the Constitution and protected by law. In
the case at bar, it is clear that the complainant was CONSTRUCTIVELY DISMISSED
by the respondents after she was subjected by the respondents to CONSTANT
HARASSMENT, BULLYING, VERBAL ABUSE, THREATS, NUMEROUS
UNFOUNDED DISCIPLINARY ACTIONS which culminated to her DEMOTION and
thereafter being PROHIBITED FROM ENTERING COMPANY PREMISES. All of
these acts committed by the respondents against the complainant clearly made her
continued employment IMPOSSIBLE, leaving the complainant with no other choice
but to consider herself terminated by the respondents.

Her NIGHTMARE began when she was transferred to a NEW account (FDC) in
August 2013. There, she began experiencing various forms of THREATS and
INTIMIDATIONS from her NEW SUPERIORS, culminating to her being DEMOTED
and REMOVED from the FDC account, and thereafter being PREVENTED from
entering company premises. As told by the complainant:

1. October 5, 2013 - I was summoned by Manager Mark Ferdinand Leoncio

xxx. He was very FURIOUS and made the following statements to me:
8
 "ALAM MO BANG BADTRIP AKO SAYO, AT PAG BADTRIP AKO SA
TAO, SINASABI KO" "KAPAG NAHANAPAN KITA NG BUTAS,
SISIGURADUHIN KONG SUSUNUGIN KITA!" "I AM NOT THREATENING
YOU! TANDAAN MO YAN!"

2. Mr. Leoncio REPRIMANDED me for an office violation of alleged sleeping

while on duty xxx

3. October 8, 2013 – xxx, I was issued a ANOTHER company violation:

Breach of company policy usage of cellphone inside a PCI compliant
workplace. Please see attachment for my response against the violation.

4. October 9, 2013 -I was asked by Dahlia Romana to have a conversation

with Senior Operations Manager Francis Edward Ayala xxx. While pointing
his finger at my face, he shouted: ”KAPAG KINAKAUSAP KITA TUMINGIN
KA SA AKIN!” “TUMINGIN KA SA AKIN AT KINAKAUSAP KITA!” “ALAM
MO BA BAKIT AKO DISAPPOINTED SAYO? KASE IKAW ANG HIGHEST
PAID COACH DITO, ALAM MO BA YUN? GUSTO KO LANG SULITIN
BINABAYAD KO SAYO!”xxx

5. October 16, 2013 –An administrative Hearing was conducted at the Ground
Floor of of Sitel Building where I was CONSTANTLY HARASSED verbally
by Mr. Ayala. He even told me to get a “lawyer” since according to him my
company violations were very serious.

6. October 19, 2013- Ms. Dahlia Romana filed an incident report against me
for alleged “RUMOR MONGERING”.

7. November 5,2013 - I received another Corrective Action Form from Mark

Ferdinand Leoncio and Francis Edward Ayala, this time accusing me of the
following VIOLATION: AGAINST GOOD CONDUCT AND BEHAVIOR-
Personal Demeanor

8. November 7, 2013 - I was issued a SUSPENSION for 5 days for Breach of

company policy: Usage of Cellular Phone inside a PCI Compliant workplace
by Mark Leoncio and Francis Edward Ayala

9. November 15, 2013 - My COMPUTER was REMOVED from my desk upon

the order of Francis Edward Ayala without notifying me ahead of time. With
this, I was effectively DEMOTED from Training Leader (Supervisory lever)
to a regular AGENT.

10. November 19, 2013 – Dahlia Romana, requested for a formal meeting with
me together with a company representative to complain about alleged
DISRESPECT I committed against her.

11. November 25, 2013- I was REMOVED from FDC account by Ms. Ivy
Gamban, HR Manager, and was given a Trainee Evaluation Form.

9
 12. November 26, 2013 – All of my security badges were DISABLED by the
respondents and so I was no longer allowed to enter the company
premises. Likewise, respondents’ SECURITY PERSONNEL PROHIBITED
ME FROM ENTERING THE SITEL BUILDING.

13. December 6, 2013 when I went to the company office to inquire about the
status of my employment, Francis Edward Ayala saw me and told me:
“HOY! ANONG GINAGAWA MO PA DITO!”

After her unjust dismissal on November 26, 2013, complainant tried her best to
contact the respondents but to no avail. All her text messages to her superiors and
the Human Resources Department were not answered. She was not approached or
contacted by any personnel of the respondents by any means. There was no order
given to her by the respondents for her to return to work. CLEARLY, complainant had
no other recourse but to consider her employment as TERMINATED by the
respondents and to file this complaint for dismissal.

During the hearings for mediation and conciliation before the Honorable
Arbiter, respondents NEVER DENIED that the complainant was already terminated
from employment. They even accused her of committing fraud during her employment
with the company. NO OFFER was made by the respondents for her to return to
work.

It must be noted that JUDICIAL ADMISSIONS made by parties in the

pleadings, or in the course of the trial or other proceedings in the same case are
conclusive and so does not require further evidence to prove them. These admissions
CANNOT be contradicted unless previously shown to have been made through
palpable mistake or that no such admission was made. (Damasco v. NLRC, 400 Phil.
568, 586 (2000), citing Philippine American General Insurance Inc. v. Sweet Lines,
Inc., G.R. No. 87434, August 5, 1992, 212 SCRA 194).

In their Position Paper, respondents even claimed that “she was temporarily
ordered to the HR Office.” (page 11 thereof) THIS IS A LIE. Such BARE
ALLEGATIONS have no merit. Where is the proof that the complainant was “ordered”
to return to the HR Office? NONE. Complainant CATEGORICALLY DENIES that the
respondents “ordered” her to report for work at the HR Office. ABSOLUTELY NO
COMMUNICATION WAS MADE TO THE COMPLAINANT FROM NOVEMBER 26,
2013 TO JANUARY 8, 2014.

Without any evidence, such BARE ALLEGATIONS are clearly BEREFT of any
merit. As CONSISTENTLY ruled by the Supreme Court.: “Certainly, elementary as a
hornbook doctrine is the evidentiary rule in our jurisdiction that bare allegations do not
constitute evidence at all, but the same are self-serving at best (Tuason v. Court of
Appeals 241 SCRA 295 (1995); “Bare allegations, unsubstantiated by evidence are
not equivalent to proof, under the Rules of Court” (Manzano v. Perez 362 SCRA 430
(2001);

As an AFTERTHOUGHT and to correct the error of their ways, the

respondents then CHARGED the complainant for allegedly violating respondents
10
“lawful” order when she failed to report to the HR Office, akin to INSUBORDINATION.
(See Annex 18 of respondents’ Position Paper.). To reiterate, NO such order or
instruction was given to the complainant. Adding insult to injury, when she tried to
report for work, Francis Edward Ayala saw her and shouted: “HOY! ANONG
GINAGAWA MO PA DITO!”.

Finally, the constant ABUSES which she received from the respondents took a
SERIOUS TOLL IN HER PHYSICAL AND MENTAL HEALTH as stated in her email to
the respondents (Annex E of complainant's Position Paper.) From all the foregoing,
it is clear that the complainant was CONSTRUCTIVELY DISMISSED by the
respondents contrary to the findings of Honorable Arbiter Ajan.

As ruled by the High Court: “Constructive dismissal exists where there is

cessation of work because "continued employment is rendered impossible,
unreasonable or unlikely, as an offer involving a demotion in rank or a diminution in
pay" and other benefits. Aptly called a dismissal in disguise or an act amounting to
dismissal but made to appear as if it were not, constructive dismissal may, likewise,
exist if an act of clear discrimination, insensibility, or disdain by an employer becomes
so unbearable on the part of the employee that it could foreclose any choice by him
except to forego his continued employment. (MORALES VS. HARBOUR CENTRE
PORT TERMINAL, INC., G.R. No. 174208, January 25, 2012; citing many cases)
“The test of constructive dismissal is whether a reasonable person in the
employee’s position would have felt compelled to give up his position under the
circumstances. Based on the factual considerations in the present case, we hold that
the hostile and unreasonable working conditions of the petitioner justified the finding of
the NLRC and the CA that respondent was constructively dismissed.” (Philippine
Veterans Bank vs. NLRC, G.R. No. 188882, March 30, 2010)

COMPLAINANT IS ENTITLED TO REINSTATEMENT PLUS FULL BACKWAGES

As a direct consequence of complainant’s unjust termination from service

without due process of law, the complainant is entitled to reinstatement with full back
wages and salaries. Back wages represent the compensation which an employee
could have earned but was not collected because of the unjust dismissal. In general, it
is granted on ground of equity for earnings lost due to illegally effected termination.

As clearly stated under Article 279 of the Labor Code, “An employee who is
unjustly dismissed from work shall be entitled to reinstatement without loss of seniority
rights and other privileges and to his full back wages inclusive of allowance, and to his
other benefits of their monetary equivalent computed from the time his compensation
was withheld from him up to the time of his actual reinstatement.”

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,
11
and payment of backwages computed from the time compensation 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.(MACASERO vs. SOUTHERN INDUSTRIAL GASES
PHILIPPINES (G.R. No. 178524, January 30, 2009)

RESPONDENTS ARE LIABLE FOR DAMAGES AND ATTORNEY’S FEES

In illegal dismissal cases, moral and exemplary damages are awarded to

compensate the affected employee for diverse injuries such as mental anguish,
besmirched reputation, wounded feeling and social humiliation suffered as a
consequence of the termination.

In the case at bar, respondents’ act of preventing the complainant from

entering company premises without a just cause is proof of bad faith on their part.
Respondents’ acts of constantly harassing and verbally abusing the complainant took
a serious toll on her physical and mental health necessitating medical treatment. As a
result of her unjust dismissal, the complainant suffered severe mental anguish and
sleepless nights on account of the sudden loss of income to sustain his family; and
also suffered besmirched reputation and wounded feelings due to the sudden
termination of her employment by the respondents. Clearly, the respondents are in
bad faith for their wanton disregard of the law and are, therefore, liable for moral and
exemplary damages.

"The series of discriminatory and oppressive acts of respondent xxx against

(the complainant) invariably makes respondent liable for moral damages under Art.
1701, which prohibits acts of capital or labor against each other, and Art. 21 on human
relations in relation to Art. 2219 No. 10 and Art. 2220, all of the Civil Code." (SIBAL
vs.NOTRE DAME, NLRC (G.R. No. 75093, February 23, 1990)

Finally, in the pursuit of justice, the complainant was forced to secure the
services of counsel, thereby incurring legal fees in the process. Accordingly,
respondents should also be ordered to pay attorney’s fees equal to ten percent of the
amount of wages recovered as provided for in Art. 111 of the Labor Code.

Settled is the rule that in actions for recovery of wages, or where an employee
was forced to litigate and, thus, incur expenses to protect his rights and interests, a
monetary award by way of attorney’s fees is justifiable under Article 111 of the Labor
Code; Section 8, Rule VIII, Book III of its Implementing Rules; and paragraph 7, Article
2208 of the Civil Code. The award of attorney’s fees is proper, and there need not be
any showing that the employer acted maliciously or in bad faith when it withheld the
wages. There need only be a showing that the lawful wages were not paid
accordingly. (Kaisahan vs. Manila Water Company,G.R. NO. 174179, November 16,
2011)

In closing, the High Court has ruled that "in carrying out and interpreting the
Labor Code's provisions and implementing regulations, THE EMPLOYEE'S
WELFARE SHOULD BE THE PRIMARY AND PARAMOUNT CONSIDERATION.
12
This kind of interpretation gives meaning and substance to the liberal and
compassionate spirit of the law as embodied in Article 4 of the Labor Code (which
provides that "[a]ll doubts in the implementation and interpretation of the provisions of
[the Labor Code], including its implementing rules and regulations, shall be resolved in
favor of labor") and Article 1702 of the Civil Code (which provides that "[i]n case of
doubt, all labor legislation and all labor contracts shall be construed in favor of the
safety and decent living for the laborer”) (PCL Shipping Philippines, Inc. v. NLRC,
G.R. No. 153031, December 14, 2006).

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this Honorable

Office to render judgment in favor of the complainant and against the respondents, as
follows:

1. To REVERSE the decision of the Honorable Arbiter which dismissed the

complaint;
2. To declare the dismissal of the Complainant as ILLEGAL, the same having
been effected without a just cause and without due process;
3. To order the respondents to reinstate the complainant to her former position
without loss of seniority rights and other privileges, and in case this is no
longer possible, to pay the complainant her separation pay;
4. To order the respondents SOLIDARILY liable to pay the complainant
herFULLBACK WAGES, inclusive of allowances and other benefits to be
computed from the time compensation was withheld from her up to her
actual reinstatement;
5. To pay the complainant moral and exemplary damages, plus Attorney’s
Fees.

Other just and equitable remedies are likewise prayed for.

Quezon City, September 30, 2014.

ATTY. PEARLITO B. CAMPANILLA

Suite B 2nd Floor Overland Park Bldg.,
No. 245 Banawe St. cor. Quezon Ave., Quezon City
Roll 37522 / IBP Life 010564 2-3-12 Pasig
PTR 9019138 1-7-14 QC / MCLE IV - 0018064

Copy furnished by mail or courier in view of the lack of manpower to effect personal service to:

ATTY. JOHN GERARDO F. C. VILLACARLOS

UNIT 707, 7TH FLOOR, SOUTH CENTER TOWER,
2206 MARKET ST., MADRIGAL BUSINESS PARK
ALABANG, MUNTINLUPA CITY

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