REPUBLIC OF THE PHILIPPINES

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch
Cordillera Administrative Region
Private Road 2F Manongdo Building
Magsaysay Avenue, Baguio City

Dave Pagurunan,
Complainant, NLRC-RAB Case No.
BAR-00-00000-00
-versus-

P and P Publishing Co., Indiana

Jones, Enrique Mendoza
Respondents.

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PREFATORY STATEMENT

When a person has no property, his job may possibly be his only
possession or means of livelihood and those of his dependents.

When a person loses his job, his dependents suffer as well. The
worker should be protected and insulated against any arbitrary deprivation
of his job.

The Bill of Rights of the Constitution guaranteed the protection of the

worker against deprivation of his job. Section 1 of Article III of our
Constitution provides, “No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be denied the
equal protection of laws”.

Unfortunately, this provision finds application more in its violation than

in its observance especially in the treatment by the employer toward his
worker. Hence, in case of deprivation of job without due process, the poor
laborer has no else to turn to but the State alone.

This call for aid is brought to fore once again in the instant complaint.
An unfortunate employee who, after spending the best years of his life with
the same employer was illegally dismissed from employment due to alleged
violation of company rules and regulations.
 REPLY

WITH UTMOST RESPECT TO THE HONORABLE OFFICE OF THE

NATIONAL LABOR RELATIONS COMMISSION.

COMPLAINANT, Dave Pagurunan through counsel, unto the Honorable

Labor Arbiter, most respectfully submits this REPLY and states that:

ACTION

This is a complaint for illegal dismissal with claim for reinstatement,

payment of back wages, moral damages, and attorney’s fees.

THE PARTIES

1. Dave Pagurunan, prior to his termination from employment worked as

a graphic artist at P and P Publishing, with residence at 702 Mekeni
St., Dug Dug Doremi Village, Baguio City, and for purpose of this
case, is duly represented by Iskul Bukol Law Office through the
undersigned counsels, where he may be served with summons and
other processes of this Honorable Office;

2. On the other hand, Respondent P and P Publishing Co. is a

corporation duly organized and existing under the laws of the
Republic of the Philippines with principal office at 702 De Leon
building, Session rd., Baguio City. Co-respondents Indiana Jones and
Maine Mendoza are the Owner and Manager of P and P Publishing
Co., respectively.

COUNTER ARGUMENTS

The complainant respectfully avers the following:

I. Pagurunan was illegally dismissed considering that:

a. There is no sufficient ground for his dismissal made against the

complainant.

b. The company’s ground for dismissing him based on willful

disobedience and habitual neglect resulting to insubordination was
belied that the complainant secured permission from his manager
to use the old machines and software other than the client’s
machine and software.
II. There is violation of labor due process in dismissing the
complainant considering that there is no compliance with the two
written notices rule before termination of employment can be
legally effected.

III. There being illegal dismissal, the complainant must be entitled to

all the benefits that accrued to her employment.

DISCUSSION

I. Pagurunan was illegally dismissed considering that:

a. There is no sufficient ground for his

Dismissal made against the complainant.

1. The illegal dismissal must be appreciated in this case when the

complainant was immediately dismissed from employment
without proving his alleged acts or omissions without prior
investigation.

2. The Company argues that the dismissal of Pagurunan, due to

the failure to follow explicit instructions from different clients
prior to the foreign account, is valid exercise of their
management prerogative. For the dismissal to be considered a
valid exercise of management prerogative it must have
sufficient ground. However, the Company’s actions invalidate
their claim that such dismissal was done in connection with the
disciplinary measures against the complainant.

3. The ground for the complainant’s dismissal which is willful

disobedience and habitual neglect is contrary to the narration of
the Company, the Complainant secured a permission from the
manager to use another machines and software other than the
prescribed machines and software.

4. Furthermore, the dismissal of the Complainant was not proven

due to the absence of investigation if he really did violates the
explicit instructions. The grounds for termination of employee
are enumerated in the Article 282 of the Labor code,
“Termination by employer. - An employer may terminate an
employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the

employee of the lawful orders of his employer or representative
in connection with his work;
 (b) Gross and habitual neglect by the employee of his
duties;

(c) Fraud or willful breach by the employee of the trust

reposed in him by his employer or duly authorized
representative;

(d) Commission of a crime or offense by the employee

against the person of his employer or any immediate member of
his family or his duly authorized representatives; and

(e) Other causes analogous to the foregoing.

5. The first ground is not present. The acts committed by Dave

does not constitute “SERIOUS MISCONDUCT” as such that
the latter wanted to cause damages to Angelica. A serious
misconduct is defined as an improper or wrong conduct. It is a
transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in character, and
implies wrongful intent and not mere error in judgment.

6. Neither does his act can be considered as willful misconduct;

Willful Misconduct" means any act or failure to act (whether
sole, joint or concurrent) by a person that was intended to
cause or was in reckless disregard of, or wanton indifference to,
the harmful consequences to the safety or property of another
person which the person acting or failing to ac

7. It does not seem that Dave Pagarunan intended to willfully

disobey the instructions of Mendoza. He is in good faith on
rendering his service like he always had been doing for five
years.

8. To support this contention, Dave Pagarunan only wanted to

produce an output which is similar to that of those which were
produced by him from the previous years. It was not done
willfully; Dave Pagarunan added that the software was already
old and was lacking some features.

9. Indeed he was in good faith because from the foregoing facts

stated above, he only wanted the best outcome of his output

10. The second ground as provided above is likewise not

committed. It was not always the case that Dave Pagarunan
habitually neglect orders from Mendoza. Habitual is defined as
regularly or repeatedly doing.

11. Dave Pagarunan had been working for the company for
five years and from those period of which he had been creating
 graphic designs, none of which had been done in deceit or
fraud.

12. It was only that time that he failed to observe the

instructions to him because the instructions given to him were
unclear, and secondly he was only driven by an excitement for
being able to make a graphic design for a foreign company.

13. Fraud and willful breach by the employee, which is the

third ground, are also not present. There was neither fraud
or /willful breach by Dave because fraud as defined is that
wrongful deception intended for personal gain.

14. In the instant case, he was rendering his service for the
sake of the company and not for his personal gain. The
specifications intended by the foreign client, Angelica, in which
he failed to comply with is beyond the meaning of fraud.

15. It is also unlikely that the fourth ground is present

because his failure to follow the instructions does not constitute
a criminal offense. Also, the neglect of the use of software and
machines of Angelica is not so serious as to commit an offense.

b. The company’s ground for dismissing him based on willful

disobedience and habitual neglect resulting to
insubordination was belied that the complainant secured
permission from his manager to use the old machines and
software other than the client’s machine and software.

1. The circumstances that will support the allegation of the

complainant as to his claim of illegal dismissal were
exhaustively discussed and supported with affidavits in his
Position paper. To reiterate the fine points that manifested the
clear discrimination, insensibility or disdain and circumstances
that created the employment unbearable to the employee
included his dismissal from his work,