Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VII
Cebu City

Hon. Jermelina Pasignajen-Ay-ad

Labor Arbiter

JAY FROILAN SUAREZ

Complainant

-versus NLRC-RAB-VII-08-880-18

LUMAPAS BLANCO LAW OFFICE

Respondent
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REPLY POSITION PAPER

COME NOW the Complainant, through counsel, and to

this Honorable Labor Court, most respectfully state:

PREFATORY STATEMENT

“We have said that the preservation of the lifeblood of the

toiling labourer comes before concern for business profits.
Employers must be reminded to exercise their powers with
caution, for the State will not hesitate to come to the succour of
workers wrongly dismissed by capricious employers.”

Contrary to the insinuation of the Respondent in the

Prefatory Statement of his position paper, the Respondent
mistakenly entertained the idea that the Complainant
despite sanctions imposed upon the latter, continued to
commit misconduct and exhibited undesirable behavior. In
fact, the Complainant, despite wrongfully meted with a

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penalty of suspension by the Respondent in his first offense,
continued to work albeit such suspension was in violation of
their Discipline Policy and was a direct violation of due
process. As such, Complainant is constructively dismissed,
thus, entitled to separation pay.

RESPONDENTS DID NOT

OBSERVE THE DISCIPLINE
POLICY IN RENDERING
APPROPRIATE PENALTY

The Respondent clearly did not follow the Discipline

Policy and FROTHe Table of Offenses & Penalties as
Amended when he suspended the Complainant from his
employment for his first offense dated 18 October 2016. The
said Policy provides a penalty of Final Written Warning only
for the 1st Offense. The Respondent imposed the penalty of
suspension, clearly in violation of the Discipline Policy albeit
it was the Complainant’s 1st Offense.

XXX XXX XXX

8. Sleeping or Serious 1st Offense:

napping on the job Final Written
Warning

2nd Offense:
Suspension

3rd Offense:
Termination

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COMPLAINANT’S RIGHT TO
DUE PROCESS VIOLATED
UPON HIS SUSPENSION

“No person shall be deprived of life, liberty or

property without due process of law, nor shall any
person be denied with the equal protection of the law
(Article III, Section 1, 1987 Constitution)”.

The occupation of the Complainant being his property

cannot be divested from him without the Respondent
observing the rule on just and authorized causes. Any
worker to be removed from his job is entitled to “due
process”. This is a fundamental right, partaking the nature
of human right. The job is livelihood whose denial is no less
equivalent to condemning the worker to struggle for
survival.

The Respondent sent a notice to explain to the

Complainant who in turn imposed a penalty of suspension in
the latter’s 1st Offense for the dates October 27-29 October
2016. Needless to say, Respondent violated their Discipline
Policy guidelines in the imposition of a higher degree of
penalty and clearly a blatant violation of the Complainant’s
right to due process. Considering the gravity of the
committed offense, suspension on the 1st Offense is unjust.

APRIL 11-12 2017 INCIDENTS

WERE NOT CONSIDERED IN
VIOLATION OF THE DISCIPLINE
POLICY

Respondent averred that the other two (2) incidents

after the Complainant was suspended were in violation of
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their Discipline Policy. However, based on the foregoing
arguments, it can be shown that the Complainant did not in
any way violate any policy.

1. 11 April 2017 – Based on the position paper of the

Respondent, the Complainant was discovered sleeping by
their shift supervisor during working hours. It must be noted
that the time the Complainant was discovered sleeping at
9:39 o’clock in the evening and that was beyond the
Complainant’s working hours. The place of work being a Law
Office is of common knowledge that operates and caters
clients up to 5 o’clock in the afternoon. It is highly
impossible for the Complainant to be in the Office during
which it was closed.

The Labor Code provides that an employee’s hours of

work shall not exceed eight (8) hours a day.

Article 83. Normal Hours of Work – The normal hours of

work of any employee shall not exceed eight (8) hours
a day.

The complainant, having discovered sleeping beyond

his tour of duty has not in any way violated the Discipline
Policy contrary to what the Respondent contended in his
position paper.

2. 12 April 2017 – During this incident, the

Complainant was again discovered sleeping in one of the
rooms at around 12 o’clock at noon as this was witnessed by
their shift supervisor. Contrary to the Respondent’s claim,
the Complainant did not violate the Discipline Policy for
sleeping at that time of the day. During that time, the

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Complainant was on his Meal period and this is duly
sanctioned by our Labor Code.

Article 85. Meal Periods – Subject to such

regulations as the Secretary of Labor may prescribe, it shall
be the duty of every employer to give his employees not less
than sixty (60) minutes time-off for their regular meals.

The time the Complainant was discovered sleeping, he

was in his meal break. Although the Complainant was not
taking his meals but instead sleeping, this act did not in any
way violate the Discipline Policy as in this time, an employee
is entitled to do things such as sleeping, and this act cannot
be considered to be inimical to the interest of the
Respondent.

RESPONDENT’S CONDUCT
RESULTED IN THE SEVERANCE
OF THE EMPLOYER-EMPLOYEE
RELATIONSHIP BETWEEN HIM
AND THE COMPLAINANT

The Respondent, a law firm and is equipped with

learned lawyers is expected to follow the rule of law, much
more of their own Discipline Policy. As a firm of lawyers,
they are expected to know the intricacies of law, but this
was not when the Respondent sent a Notice to Explain to the
Complainant in reference to the alleged violation for sleeping
during working hours. The Respondent, as a firm of learned
lawyers is expected to know that beyond the working hours
and during meal breaks, their employees are entitled to rest
or do things of their choice as this is sanctioned by our Labor
Code in Articles 83 and 85.

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 Despite knowing such fact, Respondent considered the
act of the Complainant a violation of the Discipline Policy and
even continued to send to the latter a Notice to Explain for
the subsequent alleged violations. Since the allegations of
the Respondent are baseless, such act was a clear conduct
of severance of the employer-employee relationship between
him and the Complainant.

THE CASE IS NOT FOR

ILLEGAL DISMISSAL BUT
FOR CONSTRUCTIVE DISMISSAL

The conduct of the Respondent of imputing violations to

the Complainant even it is not in accordance with its
Discipline Policy tantamount to a forced resignation on the
part of the Complainant, and forced resignation partakes the
form of constructive dismissal. There is constructive
dismissal when a clear discrimination, insensibility or
disdain by an employer becomes unbearable to the
employee that it could foreclose any choice by him
except to forego his continued employment. It is also
an unjustified action prejudicial to the employee. It is
but clear that the Respondent wanted to terminate the
Complainant’s employment by maliciously imputing
groundless and baseless allegations wherein such is not in
accordance with the Discipline Policy, such act of the
Respondent is clearly by truth is motivated by hidden desire
to expel the Complainant. In addition, a case for
constructive dismissal is never to be construed to be
premature since it is filed before the employee is
terminated.

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EMPLOYEE IS ENTITLED
TO SEPARATION PAY IN
CONSTRUCTIVE DISMISSAL

The Complainant in this case is entitled to separation

pay since the malicious imputation of the Respondent
employer takes the form of forced resignation and resulted
that of constructive dismissal.

After the malicious imputations of the Respondent, the

Complainant has no intention of returning to work by reason
of the severance of their relationship of his employer. The
law provides that when reinstatement is no longer possible,
separation pay is awarded to the employee. It is settled that
separation pay is awarded to an employee when he is
illegally dismissed without his fault.

In this case, the Complainant is not at fault for his

supposed termination of employment as those acts alleged
by the Respondent is a violation to the Discipline Policy and
not in any way inimical to the interest of the Respondent.

PRAYER

WHEREFORE, on the basis of the foregoing facts and

laws, herein complainant prays that he be awarded of
separation pay on the ground that:

1) That the case filed is not illegal dismissal but rather

constructive dismissal;
2) That the acts imputed by the respondent against the
complainant is not a violation to the Discipline Policy;

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 3) That the complainant has no intention of returning to
work due to severance of employer-employee
relationship.

Furthermore, complainant prays that separation pay

be awarded in its favor in the amount of Fifty Thousand
Pesos (P50,000.000).

Complainant likewise prays for such other relief that is

just and reasonable under the premises.

Most respectfully submitted.

Cebu City, Philippines. 10 July 2017

Rigor Mortis Mortem Law Office

123 Black Building, Dead Street
Lahug, Cebu City 6000

By:

ATTY. CULPA T. RIGOR

Counsel for Complainant
Attorney’s Roll No. 12345
MCLE EXEMPT
IBP No.1223345, issued on January 5, 2017 (for 2017)
PTR No.5433221, issued on January 5, 2017 (for 2017)

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