Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Quezon City

SIXTH DIVISION

VIRGILIO MARLON U. TESORO,

Complainant-Appellant,

-versus- NLRC CASE NO. LAC 10-002569-10

RAB CASE NO. NCR-07-10921-09

JAPAN TOBACCO INT’L (PHILS.) INC/

MR. ROGER LAMB/MR.NESTOR DE CASTRO/
MICAHEL AQUINO,
Respondents-Appellees.
x------------------------------------------------------------x

COMMENT/OPPOSITION
TO THE MOTION FOR PARTIAL RECONSIDERATION

Complainant-Appellant received on 25 May 2011 a copy of the

Respondents’/Appellees’ MOTION FOR PARTIAL RECONSIDERATION of the

Decision of the Honorable National Labor Relations (“Commission”), Sixth

Division. Thus, complainant-appellant under the law has ten (10) days from

his receipt within which to file this COMMENT/OPPOSITION or on 4 June 2011.

Since the last day of filing the same falls on a Saturday, complainant-

appellant’s last day is on June 6, 2011.

The Honorable Commission promulgated its Decision on 18 April 2011,

the dispositive portion of which reads:

“WHEREFORE, premises considered, the appealed

Decision is Affirmed subject to the MODIFICATION that
respondents-appellees are ordered to pay complainant-appelant
the sum of P30,000 as and by way of nominal damages.

SO ORDERED.”
 Upon this Decision, Respondents moved for partial reconsideration on

the sole ground, to wit:

“WITH ALL DUE RESPECT, THE HONORABLE
COMMISSION COMMITTED SERIOUS AND REVERSIBLE
EROR IN AWARDING NOMINAL DAMAGES TO THE
COMPLAINANT.”

Complainant-appellant fully agrees with the finding of the Honorable

National Labor Relations Commission (NLRC) that indeed respondent-

appellees violated the former’s right to due process of law. This was clearly

stated in the Decision, to wit:

“This having been said, it must be underscored that
complainant-appellant as probationary employee is entitled
to security of tenure in a limited sense. Thus, it is not
enough that there be just cause for his dismissal. It is
equally imperative that the manner by which his dismissal
is effected must conform with the requirements of due
process, particularly in its procedural aspect.

In the case of complainant-appellant, it is clear that his

right to due process was transgressed when he was
immediately terminated from his probationary employment
simultaneous with the service to him of the Employee
Confrimation Assessment. Consequently, he was denied the
opportunity to defend himself and be heard on the
performance assessment made by his superior. Section 2 of
Rule 1 Book VI of the Rules Implementing the Labor Code
requires that a written notice shall be served on the
employee within a reasonable time from the effective date
of termination based on failure to meet the standard of the
employer.

Clearly, with haste that attended complainant-appellant’s

dismissal, such standard of due process has not been
observed. Consequently, he should be awarded nominal
damages. The sum of P30,000.00 is hereby awarded to the
complainant-appellant in recognition and vindication of the
fundamental right granted to him by the Labor Code and it
Implementing Rules (Agabon v. National Labor Relations
Commission, G.R. No. 158693, 17 November 2004;
Philemploy Services and Resources, Inc. v. Anita
Rodriguez G.R. No. 152616, March 31, 2006).”

It bears stressing that complainant-appellant strongly denies that he

was apprise of the alleged standards, because in truth and in fact he was

informed only regarding his failure to meet the alleged standards on the day
he received the Employee Confirmation Assessment form, containing his

rating, simultaneous with his verbal termination from employment.

There is in fact evident bad faith in effecting the termination of the

complainant-appellant, since it was done a week before complainant can

become a regular employee. They should have terminated complainant even

much more earlier if indeed there is truth as to the failure to meet standards

that were really set forth by respondents to complainant are true.

We reiterate the decision of the Honorable Supreme Court in Cebu

Marine Beach Resort, et al. vs. NLRC et al., GR No. 143252, October 23, 2003

where the latter declared that, “It is settled that while probationary

employees do not enjoy permanent status, they are entitled to the

constitutional protection of security of tenure. Their employment

may only be terminated for just cause or when they fail to qualify as

regular employees in accordance with reasonable standards made

known to them by their employer at the time of engagement, and

after due process.”

Worthy to note is the very aspect of the due process requirement

which neither the Honorable Labor Arbiter a quo failed to remark or by the

respondents themselves. The decision of the Honorable Labor Arbiter mainly

focused on the reasonableness of the standards on whether the same was

duly made known to complainant at the time of his engagement for work,

sadly, no importance was given to the glaring fact that complainant was not

afforded his basic and statutory right to due process.

Nowhere in the records of the instant case that would clearly show that

indeed complainant was afforded opportunity or even a slight chance to

defend or rebut the allegations being leveled against him. If it was true that

complainant was really remiss in his duties and obligations as a Marketing

Representative then respondents should have at least allowed him to

explain, as the saying goes hit the hammer heavy but hear me first.

Definitely, complainant was not given his chance to explain what was

actually going on; what the respondents did was they called the attention of

the complainant one (1) week before he becomes a regular employee where

right there and then perfunctorily dismissed him on the pretext of an

evaluation letter. Verily also, is the fact that it was merely through self-

serving affidavits and photos that respondents are trying to impress the idea

of complying with the required reasonable standards they actually have and

done to justify their defense of validly terminating the employment of

complainant.

The necessity of notice during the probation period was categorically

written in the TERMS AND CONDITIONS OF EMPLOYMENT given to the

complainant-appellant, duly signed by Mr. Michael Macapagal, Head, Human

Resources and Administration, to wit:

“A. COMMENCEMENT DATE AND NOTICE OF TERMINATION

The date of commencement of your employment will be on May 1,

2009. The first three (3) months of your employment, depending
on your performance, will be considered as probationary. The
company reserves the right to extend the probationary period by
not more than three (3) additional months as it may deem fit.
During your probation period, either party must give one (1)
written notice or payment of one week salary in lieu of notice if
the employment is to be terminated. Thereafter, either party must
give Three (3) month’s notice or payment of Three-month’s salary
in lieu of notice if employment is to be terminated (emphasis
supplied).”

A copy of Terms and Conditions of Employment was signed by and

submitted to the company to signify acceptance by the complainant-

appellant and to commence his employment therein. It was drawn up by the

company itself, therefore it is expected that they should honor the said

document (a copy is hereto attached as Annex “A”).

The case of Philippine Daily Inquirer, Inc. v. Leon Magtibay Jr., et al. 528 SCRA 355

(2007) finds no application in this present case. While Respondents hold that
the complainant-appellant was informed of the reasonable standards

expected of him, it does not exculpate the respondents from giving the one

(1) week notice that they have purposely stated in the Terms and Condition

of Employment. The said document is in the nature of a contract that binds

the parties. In effect it becomes the law governing the contract of

employment even of the probationary employee like the complainant-

appellant himself.

The breach committed by the respondent is tantamount to bad faith.

Consequently, the award of nominal damages is just, proper and equitable.

In fact, the amount is inadequate considering the factual milieu of this case.

To reiterate, complainant-appellant was terminated absent the one

(1) week notice stipulated in the very terms and conditions that

respondents imposes on its employees. Likewise the manner by which the

termination was effected is without an iota of reasonableness considering

that complainant was immediately terminated upon showing to him an

Employee Confirmation Assessment (a copy is attached as Annex “B”). The

said form was signed only by Mr. Nestor G. de Castro (Field Operations

Supervisor) and by Mr. Mike Aquino (Head of Department). It must be noted

that the Assessment was prepared as early as July 15, 2009 and signed by

Mr. Aquino on even date. And yet the proponent, Mr. de Castro only signed

the same on July 24, 2009. It is highly irregular that the head of Department

will sign a document first before the supervisor. Nonetheless, it must be

noted that the Assessment is only recommendatory in nature. It does

partake of the actual document validly terminating the employment of herein

complainant-appellant. No actual document of termination was validly served

by the Human Resources and Administration office, which for all intents and

purposes, is the proper entity to serve such notice or decision.

 Based on the foregoing, complainant-appellant strongly opposes the

Motion for Partial Reconsideration of the respondent, and more specifically in

the deletion of nominal damages in the amount of P30,000.00

WHEREFORE, premises considered, it is most respectfully prayed of

the Honorable Commission that the Motion for Partial Reconsideration be

denied and the decision of the Honorable Commission be upheld.

OTHER RELIEFS, just and equitable under the premises are likewise

being prayed for.

Carmona, Cavite for Quezon City, 6 June 2011.

VIRGILIO MARLON U. TESORO

Complainant-Appellant
Phase 6, Block 22 Lot 19, Carmona Estates
Carmona, Cavite

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, VIRGILIO MARLON U. TESORO, of legal age, after having been

duly sworn to in accordance with law, hereby depose and state THAT - -

I am the COMPLAINANT-APPELLANT in the above-entitled case: I have

caused the preparation of the foregoing COMMENT/OPPOSITION TO THE
MOTION FOR PARTIAL RECONSIDERATION; I have read and understood
all the allegations contained therein and the same are true and correct based
on my own personal knowledge and belief.

I have not commenced any other action or proceeding involving the

same issues or have sought similar remedy that is pending in the Supreme
Court or any other court tribunal or agency.

To the best of my knowledge, no such action or proceeding involving

the same issues or remedy being sought for that is pending in the Supreme
Court or any other court, tribunal or agency.
 If I should learn that another similar action or proceeding has been
filed or is pending before the Supreme Court, or any other court, tribunal or
agency, I shall notify the Honorable Court within five (5) days from
knowledge thereof.

VIRGILIO MARLON U. TESORO

Affiant

SUBSCRIBED AND SWORN to before me this 6th day of June 2011 at

Las Pinas City; affiant exhibiting to me his Social Security System
No.043416259-8, issued March 2, 1997.

Doc. No.____
Page No.____
Book No.____
SERIES OF 2011

Copy furnished:

DELA ROSA & NOGRALES

Counsel for the Respondents
22nd Floor, Philippine Stock Exchange Centre
West Tower, Exchange Road
Ortigas Center, Pasig City

EXPLANATION

Copy of the foregoing Comment/Opposition to the Motion for Partial;

Reconsideration was served to counsel for the Respondent thru registered
mail, due to distance, time constraint and lack of messengerial personnel to
effect personal service.

VIRGILIO MARLON U.

TESORO