Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration, Legazpi City Branch
Legazpi City, Albay

MARIO M. MAURER,
Complainant,

-versus- NLRC-RAB V Case No.

V-03-42020-01

Labor Arbiter
HON. ERIKA ALIDIO

PLATONIC CULINARY SCHOOL,

MR. TONY C. STARK,
MS. PEPPER P. POTTS,
Respondents.

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RESPONDENTS’ POSITION PAPER

-----------------------------------

Respondents by counsel, to the Honorable Labor Arbiter, respectfully

submit the foregoing position paper.

PREFATORY STATEMENT

“While the Constitution is committed to the policy of social justice

and protection of the working class, not every dispute shall be automatically
decided in favor of labor. Justice is due to the deserving, and must be
dispensed in the light of established facts and the applicable law and
doctrine. Thus, it should not be supposed that any complaint instituted by
one will be automatically decided in favor of the worker. Employers like
herein Respondent Company also have their own rights, which as such, are
entitled to respect and enforcement in the interest of simple fair play.”

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 STATEMENT OF FACTS OF THE CASE

1. On June 12, 2017, respondent, Platonic Culinary School was

established as a new culinary arts school in Malibog, Albay.

2. Mario M. Maurer, complainant, was hired by Platonic Culinary School

CEO, Tony C. Stark in August 2017, as a chef and instructor.

3. The complainant was bound by a contract, to which both the

complainant and the respondents are parties. Said contract had a clause
stipulated that complainant would only acquire regularization and
permanency in the position once he has already complied with and
completed all requirements for regularization, and that until such time,
his employment will be on probationary status.

4. One of the requirement for regularization and permanency enumerated

in the contract, was to secure the necessary government license to
establish his credibility and legitimacy, and ensure his tenure in the
company.

5. The complainant was the chief architect of the culinary school’s

curriculum, and subsequently, the school earned reputation as one of
the best culinary schools in Albay.

6. Platonic sought accreditation from the Philippine Culinary Foundation-

Education Foundation Accreditation Commission (PCFEF), in January
2019. One of the requirements for accreditation was the government
license of the instructors in the school, which the complainant has still
not possessed up to this date.

7. The non-possession of the required government license by the

complainant had already caused much delay, and had put the
accreditation of the Platonic Culinary School in jeopardy and in a very
precarious situation.

8. Despite the respondent’s generosity and leniency in giving the

complainant more than enough time to comply with and settle all the
necessary requirements for regularization and permanency, the
complainant has still failed in doing so.

9. On May 3, 2019, Respondent, through its president, Pepper P. Potts,

was left with no choice but to issue a memorandum ordering the
complainant to take an indefinite leave without compensation.

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 10. The complainant was later on no longer allowed to report to work.

11. Hence, the respondent Platonic Culinary School, represented by Mr.

Tony C. Stark and MS. Pepper P. Potts, seeks the before this honorable
Commission, to resolve issues on the dismissal.

PROPOSED ISSUES FOR RESOLUTION

1. Whether or not the complainant was illegally dismissed.

2. Whether or not the complainant is entitled to reinstatement.
3. Whether or not the complainant is entitled to payment of back wages,
moral, nominal and exemplary damages.

DISCUSSION

The respondents, thru undersigned counsel respectfully submits in the

negative for all the issues.

THE COMPLAINANT WAS NOT

ILLEGALLY DISMISSED

The respondent school herein, dismissed the complainant upon just

cause. Article 281 of the Labor Code, provides:

x x x The services of an employee who has been engaged

on a probationary basis may be terminated for a just cause or
when he fails to qualify as a regular employee in accordance
with reasonable standards made known by the employer to the
employee at the time of his engagement. An employee who is
allowed to work after a probationary period shall be considered
a regular employee.

Upon hiring of the complainant, the respondent made known of the

probationary period and other requirements that were needed for him to be
regularized. In Colegio del Santisimo Rosario and Mofada vs. Rojo, the Court
held that, “such employment for fixed terms during the teachers’
probationary period is an accepted practice in the teaching profession.”

It was reiterated in many labor cases and labor laws that the employer
has every right to terminate contracts of employers under probationary
period upon not having satisfactorily completed his or her probationary
period. Article 281, supported by Section 93 of the 1992 Manual which
provides:
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 Sec. 93. Regular or Permanent Status. - Those who have served
the probationary period shall be made regular or permanent.
Full-time teachers who have satisfactorily completed their
probationary period shall be considered regular or permanent.

In Mofada, the Supreme Court discussed the above provision, “the

provision clearly provides that full-time teachers become regular or
permanent employees once they have satisfactorily completed the
probationary period of three school years. The use of the term satisfactorily
necessarily connotes the requirement for schools to set reasonable standards
to be followed by teachers on probationary employment. For how else can
one determine if probationary teachers have satisfactorily completed the
probationary period if standards therefor are not provided?”

In the instant case, the complainant did not satisfactorily complete his
probationary period since he clearly failed to comply with the required
license as a reasonable standard set by the respondent school. The
respondent has given the complainant ample time to comply with the license
requirement. The latter was hired in 2017 and his contract was even
extended for another year from 2018 to 2019, but in those period he was not
able to secure the license he is required of.

In view of this, the Supreme Court held in Mofada that, “no vested
right to a permanent appointment shall accrue until the employee has
completed the prerequisite three-year period necessary for the acquisition of
a permanent status. [However, it must be emphasized that] mere rendition of
service for three consecutive years does not automatically ripen into a
permanent appointment. It is also necessary that the employee be a full-time
teacher, and that the services he rendered are satisfactory.”

Two points could be taken out of this ruling, first, the complainant
was hired in 2017 and was only an employee of the respondent for two
consecutive years until 2019 when he was dismissed from work. He has not
yet completed the three-year period necessary for the acquisition of
permanent status. Yet, again his lack of license means he has not
satisfactorily rendered services to respondent despite him being the one who
constructed the school’s curriculum. This could not be used as a legal
ground for him to be reinstated and the respondent could only give him
enough leeway to meet the school’s set policies which for such ample
period, he did not.

The complainant was

given due process

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 Dismissals based on just causes involve the two-notice rule:

1. A written notice, commonly referred to as a notice to explain

specifying the grounds for termination and giving the employee ample
opportunity to explain their side;
2. A hearing or conference to allow the employee to respond to the
charge/s, present evidence, or rebut the evidence presented against
them; and
3. A notice of decision indicating the justification for termination as well
as the corresponding sanctions (if any) after due consideration of all
evidence.

The complainant was given due process before he was finally

dismissed from his job. The respondent has given complainant due notice of
his pending termination stating the lack of license as a primary ground.
Aside from the stipulation in the contract which stated the needed
government license for regularization of their employees, the respondent, a
month before the Philippine Culinary Foundation-Education Foundation
Accreditation Commission (PCFEF) accreditation, which required the
instructors of the school to secure government’s license, notified
complainant of his license issue.

The respondent requested the complainant’s presence during the

conference meeting, which he attended, to address the issues the school had
before the accreditation. Respondents exhausted all efforts to give
complainant the time to carry out his responsibilities which to no avail.

After due consideration of all the evidence, the respondent

reasonably decided to dismiss the complainant from service.

Book VI, Rule I, Section 2 of the IRR of the Labor Code provides:

Section 2. 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.

(b) The foregoing shall also apply in cases of probationary

employment; provided, however, that in such cases, termination
of employment due to failure of the employee to qualify in
accordance with the standards of the employer made known to
the former at the time of engagement may also be a ground for
termination of employment.

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 Furthermore, the Supreme Court also stated in Mofada that, “if the
termination is brought about by the completion of a contract or phase
thereof, or by failure of an employee to meet the standards of the employer
in the case of probationary employment, it shall be sufficient that a written
notice is served the employee, within a reasonable time from the effective
date of termination.”

In this case, the due process in termination of employee were all

satisfactorily and justly observed by the respondent.

THE COMPLAINANT IS NOT

ENTITLED TO REINSTATEMENT

The administration of Platonics Culinary School was not in error of

issuing a temporary suspension of employment as instructor to Mario
Maurer under the following premises:

The CHED Memorandum Order No. 40, Series of 2008 “Manual of

Regulations for Private Higher Education” published in the Official Gazette,
Volume 104, Number 47 page 7923-68, issued on Nov 24, 2008 explicitly
provides in paragraph 1 Section 116:

Section 16. Employment Contract. Before or at the start

of school term, the institution shall execute a written
employment contract with its teaching and non-teaching
academic employees, whether permanent, probationary or
part-time. The contract with a permanent teaching and non-
teaching academic employee does not affect his/her tenure or
status, but binds him/her to work for the entire school term and
to complete the requirements thereof, including the submission
of final grades.

Such contract entered into with Mario Maurer allows the School in its
discretion to mandate its instructors to comply with the requirements as set
forth by the academic institution. This includes licensing requirement
needed for all instructors including the complainant. His failure to provide
such compliance shall temporarily prohibit him from practicing without
effect on his employment status particularly him being on probation.

Further, on the same provision. It was mention in paragraph 2 to wit:

Par. 2. Every contract of employment shall specify the

designation, qualification, salary rate, the term and nature of
service, the date of effectivity, such terms and conditions of

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 employment as may be consistent with laws, and institutional
policies, rules and regulations. A copy of the contract shall be
furnished the personnel concerned.

Stated differently, despite a fair warning and reasonable extension

granted to him for the latter to obtain the licensing requirement per
regulatory measure exercised by the State. His failure to secure a license
renders him ineligible for the position and considered unqualified not just by
the same institution through its internal policies, rules and regulations but as
well as statutory laws.

However, on the basis of Mario Maurer’s employment status being on

probation and his being issued a suspension order the following provisions
may apply.

Section 117. Probationary Period. An academic

teaching personnel, who does not possess the minimum
academic qualifications prescribed under Sections 35 and 36 of
this Manual shall be considered as part-time employee, and
therefore cannot avail of the status and privileges of a
probationary employment. A part –time employee cannot
acquire regular permanent status, and hence, may be
terminated when a qualified teacher becomes available.

The probationary employment of academic teaching

personnel shall not be more than a period of six (6) consecutive
semesters or nine consecutive trimesters of satisfactory service,
as the case may be.

In cognizance with the above provision, the act of the administration

of Platonics Culinary School is justified and that at the liberal act of granting
suspension rather than termination should be accepted by the complainant
wholeheartedly.

THE COMPLAINANT IS NOT

ENTITLED TO PAYMENT OF
BACKWAGES AND
CIVIL INDEMNITIES

Evidently, the respondents did not violate the statutory right of the
complainant pursuant to the Article 279 of the Labor Code. The dismissal of
complainant from service was reasonably and undoubtedly justified which
does not entail him any award for back wages, inclusive of allowances and
other benefits of their monetary equivalent from the time compensation was
withheld up to the time of reinstatement and civil indemnities.
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 The respondents were able to give sufficient and legal proof to justify
the cause of the termination of service of the complainant. Furthermore,
there was no violation of due process clause by the respondent.
PRAYER

WHEREFORE, premises considered, it is respectfully prayed that

judgment be issued declaring that the complainant has been LEGALLY
DISMISSED by way of JUST CAUSE under Article 281 of the Labor Code
by the respondents and that the complainant is not entitled to
REINSTATEMENT.

FINALLY, the complainant respectfully pays for such and other

reliefs as may be deemed just and equitable in the premises.

Most respectfully submitted.

Legazpi City, Albay. 8 March 2020.

PLATONIC CULINARY SCHOOL

MR. TONY C. STARK
MS. PEPPER P. POTTS
Respondents

Magdaong Tuanqui Cajegas Law Offices

3F Bonto Bldg., Bicol University
Rizal St., Legazpi City
Tel. No. 234-8700
mtc_2024@gmail.com

By:

ATTY. JOHN C. MAGDAONG, CPA

c/o Magdaong Tuanqui Cajegas Law Offices
3F Bonto Bldg., Bicol University
Rizal St., Legazpi City
IBP No. 06187; 01-12-2020, Legazpi City
PTR No. 3825817;1-11-2020, Legazpi City
MCLE No. VI-00094 (valid until 04-14-22)

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 Roll No. 20280
Tel. No. 234-8703
magdaong.john.c.jd@gmail.com

ATTY. SUZENE T. CAJEGAS

c/o Magdaong Tuanqui Cajegas Law Offices
3F Bonto Bldg., Bicol University
Rizal St., Legazpi City
IBP No. 04189; 01-12-12, Legazpi City
PTR No. 1869914;1-12-2020, Legazpi City
MCLE No. VI-00418 (valid until 04-14-22)
Roll No. 20244
Tel. No. 234-8701
suzenecajegas@gmail.com

ATTY. HOWARD B. TUANQUI

c/o Magdaong Tuanqui Cajegas Law Offices
3F Bonto Bldg., Bicol University
Rizal St., Legazpi City
IBP No. 05689; 01-12-2020, Legazpi City
PTR No. 3451267;1-11-2020, Legazpi City
MCLE No. VI-00089 (valid until 04-14-22)
Roll No. 22890
Tel. No. 234-8702
howardbtuanqui@gmail.com

COPY FURNISHED:

MARIO M. MAURER
69 Sesame St.
Brgy. Malibog
Legazpi, Albay

ATTY. INAH MAE RANOCO, CPA

Unit 143 Callecos Corporate Center
Nr 1 Arnoco Avenue

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Legazpi City, Albay
Tel. No. 782-11-11
mailaw@everyday.com

EXPLANATION

Copies of the foregoing Position Paper were filed and delivered

through personal service.

ATTY. SUZENE T. CAJEGAS

c/o Magdaong Tuanqui Cajegas Law Offices
3F Bonto Bldg., Bicol University
Rizal St., Legazpi City
IBP No. 04189; 01-12-12, Legazpi City
PTR No. 1869914;1-12-2020, Legazpi City
MCLE No. VI-00418 (valid until 04-14-22)
Roll No. 20244
Tel. No. 234-8701
suzenecajegas@gmail.com

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