Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch

Cordillera Administrative Region,

Magsaysay Avenue, Baguio City

ETHAN TROY M. BAUZON

Complainant,

-versus - NLRC-RAB-CAR 09-0000-18

SPRIKITIK BOWOW GRAPHICS

DESIGN, PROMOTION, AND

ADVERTISEMENT

Respondent.

x-------------------------------------------------------x

POSITION PAPER

FOR THE COMPLAINANT

Comes now complainant through the undersigned counsel and

unto this Honorable Commission, respectfully state:

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 THE PARTIES

Complainant Ethan Troy M. Bauzon (hereinafter referred to as

complainant Bauzon) is of legal age, single, and a resident of

Governor Pack Road, Baguio City. He can be served with notices,

orders, resolutions and other processes of this Honorable Labor

Arbitration Branch at the address of his undersigned counsel

Respondent SPRIKITIK BOWOW GRAPHICS DESIGN,

PROMOTION, AND ADVERTISEMENT (hereinafter referred to as

respondent Sprikitik Bowow) is a Philippine corporation engaged in

graphics design used for various promotional material and other

advertising purposes. It may be served with summons, orders,

resolutions and other processes of this Honorable Office at 55 Unit 3,

Malcolm Tower, Baguio City

STATEMENT OF THE CASE AND FACTS

This is a complaint for illegal dismissal filed by Bauzon on

April 27, 2019 against Sprikitik Bowow.

The respondents are engaged in the business of graphics design

wherein they provide visual concepts, using computer software or

analogous means, to communicate ideas that inspire, inform, and

captivate consumers. They develop the overall layout and

production design for various applications such as advertisements,

brochures, magazines, corporate reports, and the like.

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 Attached hereto is a copy of said graphic design as Annex “A”

made by the complainant.

The complainant worked as one of the graphic designers of the

respondent and has been under their employment for the past 10

years. His mode of compensation was based per project. He was

required to be at his workplace every day but he had the discretion to

choose his work hours. He was compensated He was initially being

paid at P500.00 per project which eventually rose to P10,000.00 per

project. Complainant was under the supervision of Matt Jeoffry

Buajuan, who was tasked with the inspection and approval of such

designs.

Attached hereto is a copy of a payslip of the complainant as

Annex “B”.

On March 26, 2019, complainant was given a special project to

create an advertisement for a Chinese company, Fuhquien Xet

International, which was to be submitted on April 16. Said client

supplied the hardware and software and it was agreed upon that

Sprikitik Bowow will not use their own equipment. An orientation

was held on March 27 on how to use the provided facilities. This was

attended by the complainant and his supervisor, Mr. Buajuan, but

only for a limited time due to prior commitments. Nearing deadline,

complainant reverted back to his equipment and old software,

Microsoft Paint, in order to complete the project and as not to incur a

delay in fulfilling the obligation.

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 The result of such action was a violation of the contract

between Fuhquien Xet and Sprikitik Bawow, resulting to the

termination of Mr. Bauzon from the latter company.

Attached hereto is a copy of the said design as Annex “C”

made by the complainant for the Chinese company, Fuhquien Xet

International.

ISSUES

A.) WHETHER OR NOT THE HONORABLE TRIBUNAL HAS

JURISDICTION UNDER EMPLOYER-EMPLOYEE DOCTRINE

B.) FOR THE SAKE OF ARGUENDO, BUT NOT ADMITTING:

THAT THERE IS EMPLOYER-EMPLOYEE RELATIONSHIP.

WHETHER OR NOT THE DISMISSAL WAS PROPER UNDER

JUST CAUSES, AND DUE PROCESS AS OBSERVED.

DISCUSSIONS

A.) WHETHER OR NOT THE HONORABLE TRIBUNAL HAS

JURISDICTION UNDER EMPLOYER-EMPLOYEE

DOCTRINE

For the Honorable Court to have jurisdiction over the subject

matter is by establishing the employer-employee relationship.

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 In determining the existence of an employer-employee

relationship the “four-fold” test is used. This test considers the

following elements: (1) the power to hire; (2) the payment of wages;

(3) the power to dismiss; and (4) the power to control, the last being

the most important element. (Tongko vs The Manufacturers Life

Insurance Co., G.R. No. 167622).

To satisfy the first test is the fact that Bauzon was a probationary

employee when he first entered the company having to be

compensated with P500 pesos only given his said status as shown in

their contract hereby attach as annex “D”. The second test; when

Bauzon was accepted as a regular employee with the discretion of

choosing his work hours, provided that he shall come to work every

working day, his compensation for a project he completes is given by

the company and it gradually increased over time. Third test; Bauzon

had to comply with the rules and policies of the company and a

violation of which shall result to either his suspension or dismissal.

Last test; Matt Jeoffry Buajuan supervises Bauzon concerning his

work on certain projects and he shall follow any order given by his

supervisor. Thus, these facts establish the employer-employee

relationship of the complainant and respondent.

B.) FOR THE SAKE OF ARGUENDO, BUT NOT ADMITTING:

THAT THERE IS EMPLOYER-EMPLOYEE RELATIONSHIP.

WHETHER OR NOT THE DISMISSAL WAS PROPER

UNDER JUST CAUSES, AND DUE PROCESS AS

OBSERVED.

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 The above grounds being interrelated are hereby discussed jointly

in the following.

With all due respect to the Honorable Commission, it is most

respectfully submitted that the constitutional right of the

complainant to due process was violated by the respondents in this

case. As such, his dismissal is illegal not only because he did not

commit any act to justify his dismissal nor any showing that his

performance was not able to meet what was expected of him based

on a set of rules given him before he started his work with the

respondents.

Under the Labor Code, an employee may be dismissed only if

there is a just or authorized cause and only after notice and hearing.

As such, Art. 296 provide:

Article 296 (formerly 282) of the Code speaks of the just

grounds to dismiss an employee.

ART. 296. Termination by employer. - An employer may

terminate an employment for any of the following causes:

(a) Serious misconduct or wilful 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 wilful breach by the employee of the trust

reposed in him by his employer or duly authorized

representative;

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 (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

He is NOT GUILY of SERIOUS MISCONDUCT, GROSS

AND HABITUAL NEGLECT, FRAUD OR WILLFUL BREACH OF

TRUST, OR COMMISSION OF A CRIME AGAINST THE

EMPLOYER OR HIS FAMILY OR REPRESENTATIVES.

2.1 Serious Misconduct

In Imasen Philippine Manufacturing Corporation vs. Alcon

and Papa (G.R. No. 194884, October 22, 2014), Supreme Court

Associate Justice Arturo Brion defined and expounded on

misconduct as:

“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, wilful in character, and implies wrongful intent

and not mere error in judgment. To constitute a valid

cause for the dismissal within the text and meaning of

Article 282 of the Labor Code, the employee’s

misconduct must be serious, i.e., of such grave and

aggravated character, not merely trivial or unimportant.

Additionally, the misconduct must be related to the

performance of the employee’s duties showing him to be

unfit to continue working for the employer.

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 “Further, and equally important and required,

the act or conduct must have been performed with

wrongful intent. To summarize, for misconduct or

improper behaviour to be a just cause for dismissal, the

following elements must concur: (a) the misconduct

must be serious; (b) it must relate to the performance of

the employee’s duties showing that the employee has

become unfit to continue working for the employer; and

(c) it must have been performed with wrongful intent.”

The conduct of employee to use his old software program

instead of using the program that the client provided would not

constitute serious misconduct because the element “(c) it must

have been performed with wrongful intent” is not present. There

was no intent on the part of the employee to intentionally cause

harm to the software project. In this case, the software program of

the client was having technical issues, which employer had

communicated to his supervisor and the client. He had

communicated the problem to the client as can be seen in Annex

“E“, which he had copied his supervisor. He also made 2 follow

up e-mails regarding the said issue. However, due to time

constraint and with the nearing of the deadline he had to use his

initiative to use his old software instead so he can finish the

project on time.

He wanted to finish the project as stated in the contract

since he knew non fulfilment of the contract on the said project

would produce damage to both company and client. He had done

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all the possible remedy to benefit both the company and the client.

It was technically impossible for him to finish the project with the

required software by the client but he proceeded to finish the

project on time by using his old software, which is not inferior to

that of the software the client requested. If the client had provided

the necessary and timely response to the employee’s query about

the new software, the employee would have doubtless finished the

project.

In Bravo vs Urios College (G.R. No. 198066), the Supreme

Court has emphasized that the rank-and-file employee's act must

have been "performed with wrongful intent" to warrant dismissal

based on serious misconduct. 92 Dismissal is deemed too harsh a

penalty to be imposed on employees who are not induced by any

perverse or wrongful motive despite having committed some form

of misconduct.

In Moreno v. San Sebastian College-Recoletos, the Supreme

Court deemed the penalty of dismissal as disproportionate to the

committed offense because the employee was neither induced by

nor motivated by a perverse or wrongful intent in violating the

school's policy on external teaching engagements.

Employee was in good faith in using the old software

because he believed in good faith that his initiative would even be

appreciated by the company and the client because he had still

produced the project even with the ineffectiveness of the new

software being required.

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2.2 Neglect of Duty

Neglect of duty, to be a ground for dismissal under

Article 296 of the Labor Code, must be both gross and

habitual. Gross negligence implies want of care in the performance

of one's duties. Habitual neglect imparts repeated failure to

perform one's duties for a period of time, depending on the

circumstances.

“Habitual neglect implies repeated failure to

perform one’s duties for a period of time, depending on

the circumstances. A single or isolated act of negligence

does not constitute a just cause for the dismissal of the

employee” (AFI International Trading Corp. vs Lorenzo)

Employee is undoubtedly not guilty of duty as he has

never been accused of being tardy. The fact that he had submitted

the software project on time proves that he never neglected his

duty to the company. He has always been on time for duty and

has never been absent on meetings and conferences with the

client, as seen in Annex “F“.

2.3. Fraud or Wilful Breach

In Bravo vs Urios College (G.R. No. 198066), a dismissal

based on wilful breach of trust or loss of trust and confidence

under Article 297 of the Labor Code entails the concurrence of two

(2) conditions.

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 First, the employee whose services are to be terminated

must occupy a position of trust and confidence.

There are two (2) types of positions in which trust and

confidence are reposed by the employer, namely, managerial

employees and fiduciary rank-and-file employees. Managerial

employees are considered to occupy positions of trust and

confidence because they are "entrusted with confidential and

delicate matters." On the other hand, fiduciary rank-and-file

employees refer to those employees, who, "in the normal and

routine exercise of their functions, regularly handle significant

amounts of [the employer's] money or property." Examples of

fiduciary rank-and-file employees are "cashiers, auditors, property

custodians," selling tellers, and sales managers. It must be

emphasized, however, that the nature and scope of work and not

the job title or designation determine whether an employee holds

a position of trust and confidence.

The second condition that must be satisfied is the

presence of some basis for the loss of trust and confidence. This

means that "the employer must establish the existence of an act

justifying the loss of trust and confidence." Otherwise, employees

will be left at the mercy of their employers.

The conditions to satisfy a dismissal based on wilful

breach are not present in this case. Employee is undeniably not

occupying a position of trust and confidence. Even if he does work

on his own, he still has a supervisor to which he reports to. He is

not entrusted with delicate and confidential matters. Hence, he

can not be dismissed based on wilful breach.

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 In Dimabayao v. National Labor Relations Commission, 17 this

Court had occasion to state that:

“Strained relationship may be invoked only

against employees whose positions demand trust and

confidence, or whose differences with their employer

are of such nature or degree as to preclude

reinstatement. In the instant case, however, the

relationship between petitioner, an ordinary employee,

and management was clearly on an impersonal level.

Petitioner did not occupy such a sensitive position as

would require complete trust and confidence, and

where personal ill will would foreclose his

reinstatement.”

2.4 Commission of a Crime

Lastly, there is no question to the fact that the employee

had not done any criminal offense against his employer or any

immediate member of his family or his duly authorized

representatives. There are no facts supporting the said just cause.

AS TO THE ISSUE OF DUE PROCESS

1.) The constitutional right to due process has two aspects:

substantive and procedural. Substantive due process mandates that

an employee may be dismissed based only on just or authorized

causes. Procedural due process requires further that he may be

dismissed only after he has been given an opportunity to be heard.

The due process principle requires compliance with these two aspects

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(Maneja vs. NLRC and Manila Midtown Hotel, G.R. No. 123013, June 5,

1998).

The right to labor is a constitutional as well as a statutory right.

Every man has a natural right to the fruits of his own industry. A

man who has been employed to undertake certain labor and has put

into it his time and effort is entitled to be protected. The right of a

person to his labor is deemed to be property within the meaning of

constitutional guarantees. That is his means of livelihood. He cannot

be deprived of his labor or work without due process of law (Offshore

Indutries, Inc. vs. NLRC, G.R. No. 83108, August 29, 1989; Villegas vs.

Hu Chong Tsai Pao Ho, G.R. No. L-29646, November 10, 1978).

The Supreme Court even had the occasion to say in the case of

Philippine Blooming Mills Employees Organization vs. Philippine

Blooming Mills Co., Inc., G.R. No. L-31195, June 5, 1973 that human

rights occupy a preferred position than property rights since material

loss can be repaired but the debasement of a human being cannot.

2.) For termination of employment based on just causes defined

in Article 297 of the Labor Code, the following are required:

(a) A written notice served on the employee specifying

the ground or grounds for termination, and giving to said

employee reasonable opportunity within which to explain his

side;

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 (b) A hearing or conference during which the employee

concerned, with the assistance of counsel if the employee so

desires, is given opportunity to respond to the charge, present

his evidence or rebut the evidence presented against him; and

(c) A written notice of termination served on the

employee indicating that upon due consideration of all the

circumstances, grounds have been established to justify his

termination.

In the case of New Puerto Commercial et al. vs. Lopez et al., G.R.

No. 1699999, July 26, 2010, the Supreme Court discussed due process

of law in labor cases:

“In order to validly dismiss an employee, he must

be accorded both substantive and procedural due process by

the employer. Procedural due process requires that the

employee be given a notice of the charge against him, an ample

opportunity to be heard, and a notice of termination. Even if the

aforesaid procedure is conducted after the filing of the illegal

dismissal case, the legality of the dismissal, as to its procedural

aspect, will be upheld provided that the employer is able to

show that compliance with these requirements was not a mere

afterthought.

In termination proceedings of employees, procedural due

process consists of the twin requirements of notice and hearing. The

employer must furnish the employee with two written notices before

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the termination of employment can be effected: (1) the first apprises

the employee of the particular acts or omissions for which his

dismissal is sought; and (2) the second informs the employee of the

employer’s decision to dismiss him."

In Perez, et al. vs. Philippine Telegraph and Telephone, Co., et al.,

G.R. No. 152048, April 7, 2009, the Supreme Court held that a hearing

means that a party should be given a chance to adduce his evidence

to support his side of the case and that the evidence should be taken

into account in the adjudication of the controversy. The Court set the

following guiding principles in connection with the hearing

requirement in dismissal cases:

(a) “Ample opportunity to be heard” means any

meaningful opportunity (verbal or written) given to the

employee to answer the charges against him and submit

evidence in support of his defense, whether in a hearing,

conference or some other fair, just and reasonable way.

(b) A formal hearing or conference becomes mandatory

only when requested by the employee in writing or substantial

evidentiary disputes exist or a company rule or practice

requires it, or when similar circumstances justify it.

(c) The “ample opportunity to be heard” in the Labor

Code prevails over the “hearing or conference” requirement in

the IRR.

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 Complainant claims that his dismissal was illegal because his

right to due process was violated when he was abruptly dismissed by

respondent. Complainant was not notified of the reason for his

dismissal, not afforded an ample opportunity to be heard, and not

notified that the reason for his dismissal was established.

Complainant was just dismissed from service without even an iota of

fairness.

3.) There are instances where a hearing is not required and

among of them is where the employee admits his guilt. Other

instances where no hearing is required include the following:

(a) Termination which is justified by any of the

authorized causes under Articles 298;

(b) Termination initiated by the employee (Article 300);

(c) Termination of the probationary period of

employment;

(d) Termination resulting from bona fide suspension of

operation; (Article 301)

(e) In case of project employment, termination upon

completion

Clearly, the case of herein complainant does not fall under any

of the aforementioned instances warranting the dispensation of a

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 hearing. Complainant (a) did not admit his guilt; (b) was terminated

allegedly on the ground of insubordination, a just cause for

termination; (c) did not initiate his termination; (d) was neither under

probationary employment nor project employment; and (e) was not

terminated resulting from bona fide suspension of operation. Hence,

complainant should have been afforded an ample opportunity to be

heard for him to be able to present his side and substantiate his

claims.

PRAYER

WHEREFORE, in the light of the foregoing, it is respectfully prayed

to this Honorable Commission to render judgment in favor of the

complainant and against the respondent in all issues raised and

discussed by the complainants through counsel.

That:

(a) PAYMENT for his performance on the project of P10,000.00.

(b) MORAL DAMAGES of P200,000.00.

(c) EXEMPLARY DAMAGES of P100,000.00.

(d) His RECEIVABLES representing other benefits amounting to

P54,150.00

(e) ATTORNEY’S FEES of Ten Percent of Damages. AWARDED.

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 FINALLY, the respondent respectfully pays for such and other

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

April 25, 2019, Baguio City

MR. ETHAN TROY BAUZON

Complainant

Address: 1 Governor Pack Road, Baguio City, Benguet, Philippines

V E R I F I C A T I O N & CERTIFICATION

I, ETHAN TROY M. BAUZON , Filipino, of legal age

and a resident of #69 Bayan Park Village, Aurora Hill, Baguio City,

after having been duly sworn in accordance with law hereby depose

and state:

That I am the complainant in the above-entitled case;

That I have caused the preparation of the foregoing Position

Paper;

That I have read the contents thereof;

That all the allegations therein are true and correct of my own

personal knowledge and from authentic documents.

That I hereby certify that I have not commenced an action

involving similar issues before the Supreme Court or any of its

division; before the Court of Appeals or any divisions thereof;

before the Regional Trial Courts, Municipal Trial Courts or any

other agency of the government. That if I should learn about

the pendency of similar action, I shall inform the Honorable

Court within five days from knowledge thereof.

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IN WITNESS WHEREOF, I have hereunto set my hand this 5th day

of April, 2019 at Baguio City.

ETHAN TROY M. BAUZON

Affiant

SUBSCRIBED AND SWORN TO BEFORE ME in Baguio City

on April 27,2019, affiant showing his competent proof of identity as

follows: LTO Driver’s License No. DO6-11-145283

Notary Public

Doc. No. 158962

Page No. 145

Book No. 256

Series of 2019.

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 REV. PASCUAL AGUSTO CARLO PONCE TEODORO

Labor Arbiter

Roll No. 65898

MCLE compliance no. VI-0002668 vaid until April 14, 2022

IBP No. 1056817 Baguio-Benguet Chapter 1-10-2017

PTR No. 5012193 La Trinidad, Benguet 1-06-2017

106 Chua Huntay and sons Building, Km. 4 Pico, La Trinidad,

Benguet, Philippines

[email protected] CP# 0927-794-90-40/landline # (074) 422-45-47

Copy Furnished:

Atty. Peter E. Escobar

Counsel for Complainant

(To be personally given during the

hearing on April 29, 2019 at 10:000 AM)

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