Republic of the PhilippinesNATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VIIITacloban City

SERGIO B. REYES, RAB VIII Case No. 01- 00005 - 11Complainant,

-versus-

BURAUEN QUALITY BREAD BAKESHOP,

Respondent,x - - - - - - - - - - - - - - - - - - - - - x

POSITION PAPER

COMPLAINANT by the undersigned counsel and unto this Honorable

Labor Arbitration Office, most respectfully submits this position paper and

avers the following to wit:

PREFATORY STATEMENT

The Complainant in this case is SERGIO B. REYES, of legal age,

married, with post office address at District 1, San Ramon St., Burauen,

Leyte where he could be served with summons and other legal processes

of this Honorable Office.

The Respondent is BURAUEN QUALITY BREAD BAKESHOP, a business

establishment owned by Dyna and managed by Nilda A. Roca, with

business address at San Luis St., Burauen, Leyte, where the said

establishment and representative could be served with summons and

other legal processes of this Honorable Office.

STATEMENT OF FACTS

The Complainant was formerly a regular employee as baker of

Respondent Burauen Quality Bread Bakeshop since January 1, 2003. The

business undertaking of the said Respondent is to sell bread to the public

which Complainant prepares in the premises of the Respondent. A copy of

the Identification Card issued by the Respondent to the Complainant is

hereto attached as Annex “A” as proof of the latter’s employment.

1

The Complainant worked for seven (7) days a week with no rest day

or day-off. He worked for 9 hours per day with no overtime pay. He was

also made to work on holidays without holiday/premium pay, with the

exception of the following holidays for which there was no work, to wit:

Christmas day, New Years day, Good Friday and on December 8, which is

the fiesta of Burauen, Leyte.

The starting salary of Complainant was Php 100.00 per day. In the

year 2005, this was increased to Php 110.00 per day. Then, in 2006, his

daily wage was increased to Php 115.00. In the year 2007 near the month

of December, his daily wage was increased to Php 120.00 and in the year

2008, his daily wage was again increased to Php 135.00. In the year 2009,

his daily wage was again increased to Php 140.00 and on January 2010,

Complainant’s daily wage was again increased to Php 150.00 until he was

illegally terminated on December 6, 2010. All of the aforementioned daily

wage rates are below the prevailing minimum wage mandated by law and

given effect by the various applicable Wage Orders issued by the Regional

Tripartite Wages and Productivity Board – VIII.

However, during paydays on the 15th and on the last day of the

month, the Complainant was made to sign in a blank payroll consisting of

two sheets of paper and then in a separate paper containing the actual

amount received as salary. Hence, it is possible that the Respondent can

produce a payroll signed by the Complainant containing entries of wage

which is at par or more than the prevailing minimum wage as it is easy to

fill in the desired entries of the amount of wage on the blank but pre-

signed payroll.

Likewise, Complainant was not given the yearly service incentive

leave of five days with pay in accordance to Article 95 of the Labor Code.

On December 6, 2010, Complainant was verbally terminated without

due process from his work by Dyna, the owner of the Burauen Quality

Bread Bakeshop.

The Complainant was not given his 13th month pay for the year

2010, although in the previous years, he was given such every December.

2

Likewise, his salary for the period of December 1-6, 2010 was not given to

him.

That as a result of the unjust termination of employment of the

Complainants by the Respondent, the former suffered mental anguish,

sleepless nights, wounded feelings, serious anxiety, moral shock, and

social humiliation, especially concerning the daily sustenance of his family.

In support of the foregoing allegations is the Affidavit of the herein

Complainant dated February 17, 2011 which is attached and made integral

part of this Position Paper as Annex “B”, as well as his verified Complaint

dated January 10, 2011 which is on the records of this case.

ISSUES

1. WHETHER OR NOT THE COMPLAINANT WAS ILLEGALLY DISMISSED

AND WHETHER OR NOT THE COMPLAINANT WAS AFFORDED THE

PROCEDURAL DUE PROCESS.

2. WHETHER OR NOT COMPLAINANT IS ENTITLED TO SERVICE

INCENTIVE LEAVE PAY, HOLIDAY PAY, REST DAY PAY AND

OVERTIME PAY.

3. WHETHER OR NOT THE COMPLAINANT WAS UNDERPAID.

4. WHETHER OR NOT, THE RESPONDENT IS LIABLE TO THE

COMPLAINANT FOR NOMINAL DAMAGES AND MORAL DAMAGES.

FIRST ISSUE: (Illegal Dismissal and no Procedural Due Process)

From the foregoing facts, it is clear that the dismissal of the

complainant was illegal thus he should be paid of his separation pay as

provided by law. Also, no procedural process was accorded to him prior to

his termination from service.

Insofar as the procedural due process is concerned, Article 277 (b) of

the Labor Code specifically requires the employer to furnish the worker or

employee sought to be dismissed with two written notice, i.e., a notice

3

which apprises the employee of the particular acts or omission for which

his dismissal is sought, and a subsequent notice which informs the

employee of the employer’s decision to dismiss him (Kiamco vs. NLRC,

G.R. No. 129449, June 29, 1999).

In this instant case, clearly the complainant was not afforded of the

procedural due process accorded by law because he was simply verbally

fired from his employment.

In addition, (I)t must be borne in mind that the basic principle in

termination cases is that the burden of proof rests upon the employer to

show that the dismissal is for just and valid cause, and failure to do so

would necessarily mean that the dismissal was not justified and, therefore,

was illegal [Polymedic General Hospital v. NLRC, G.R. No. 64190, January

31, 1985, 134 SCRA 420; and also Article 277 of the Labor Code].

SECOND ISSUE: (SERVICE INCENTIVE LEAVE PAY, HOLIDAY PAY, REST DAY

PAY, OVERTIME PAY)

As to the entitlement of service incentive leave pay, rest day pay

and holiday pay premiums, the Complainant believes that he is entitled to

the same just like all other regular employees and as guaranteed by the

Labor Code of the Philippines. The complainant was deprived of his

service incentive leave pay, holiday and rest day premium pay.

The Labor Code provides for an 8-hour normal hours of work

pursuant to Art. 83 thereof and work rendered in excess of 8 hours should

be paid the overtime pay in accordance with Art. 87. Inasmuch as the

Complainant rendered 9 hours per day of work, he is entitled to overtime

pay.

THIRD ISSUE (UNDERPAYMENT OF SALARY)

The Complainant was underpaid throughout his employment with

the Respondent. For instance, when he was receiving a daily wage of Php

100.00 in 2004 when Wage Order No. RB VIII-11 took effect, the minimum

daily wage mandated was already Php 195.00. The subsequent daily

wage increases granted to the Complainant over the years was not able to

4

reach the amount prescribed in the aforementioned wage order which has

since been superseded by subsequent wage orders.

The Complainant respectfully submit that he should have been

receiving the daily minimum wage so provided by the wage orders issued

by the Regional Tripartite Wages and Productivity Board – VIII and

considering that he has not received the legal wage mandated by law, he

should be paid the salary differential.

FIFTH ISSUE: (NOMINAL DAMAGES, EXEMPLARY DAMAGES AND MORAL

DAMAGES)

Cleary, the Respondent violated the statutory right of the herein

complainant i.e. his right to be furnished of the two written notice prior to

dismissal as specifically provided by Article 277 (b) of the Labor Code of

the Philippines. In a case like this, the proper award is nominal damages

under the Civil Code as it is aimed to vindicate the right to procedural due

process violated by the employer. In the case of Jenny Agabon and Virgilio

Agabon vs. NLRC (G.R. No. 158693, November 17, 2004), for lack of

statutory due process, the employer was ordered to indemnify the

employee for the violation of his statutory right which warrants the

indemnity in the form of nominal damages.

Likewise the herein Complainant is entitled to moral damages

because the dismissal of the complainant was attended by bad faith of

constitutive of an act oppressive to labor. In the case of Lim vs. National

Labor Relations Commission [GR No. 79907 March 16, 1989], the

Supreme Court uphold the award of moral as well as exemplary damages

in view of the bad faith attendant to the treatment of the employee.

In the instant case, there is no other plausible explanation for the

acts (or its conspicuous absence) of the Respondent of the manner

wherein the Complainant was deprived of his employment except bad

faith.

P R A Y E R

5

WHEREFORE, premises considered, it is most respectfully prayed of

this Honorable Labor Arbiter, that decision be rendered, to wit:

1. Declaring the termination of the herein Complainant as

illegal and further, ordering Respondent to pay unto the

Complainant separation pay, the 13th month pay for the year

2010 and his salary for December 1 to 6, 2010.

2. Ordering the Respondent to pay to the Complainant the

salary differential due to him.

3. Ordering the Respondent to pay to the Complainant his

SERVICE INCENTIVE LEAVE PAY, HOLIDAY PAY, REST DAY

PREMIUM PAY AND OVERTIME PAY that were all deprived from

him during his entire employment with the Respondent.

4. Furthermore, it is likewise prayed unto the Honorable

Labor Arbiter to order the Respondent to pay the herein

Complainant nominal damages in the amount of Php 10,000.00

for not affording to the complainant the procedural due process,

the amount of Php 100,000.00 as moral damages and the

amount of Php 50,000.00 as exemplary damages.

Other reliefs just and equitable under the premises are also prayed

for.

RESPECTFULLY SUBMITTED.

Tacloban City, February 24, 2011.

The PUBLIC ATTORNEY’S OFFICE(Counsel for the Complainant)Tacloban District OfficeBulwagan ng KatarunganMagsaysay Blvd., Tacloban City

By:

NEMITZ F. NEGADOPublic Attorney IIRoll of Attorney’s No. 40747IBP No. 05045 (Lifetime)MCLE Compliance No. III - 0017029(June 2, 2010)

6

Copy furnished: (by Registered Mail)

NILDA L. ROCA Registry Receipt No._________ Burauen Quality Bread Bakeshop Date Mailed:_______________San Luis StreetBurauen, Leyte

(VERIFICATION ON THE NEXT PAGE)

7