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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:
THE PARTIES
STATEMENT OF FACTS
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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: --
“She is the most proactive when it comes to tasks and recommendations. This
translated to CONSISTENTLY BAGGING Upsell’s TOP COACH TITLE.”
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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.
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.
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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 25, 2013- I was REMOVED from FDC account by Ms. Ivy
Gamban, HR Manager, and was given a Trainee Evaluation Form.
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.
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.
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.
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.
SO ORDERED.
THE ISSUES
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:
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:
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.
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:
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”.
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.
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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.
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);
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 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.”
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.
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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
Copy furnished by mail or courier in view of the lack of manpower to effect personal service to:
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