Republic of the Philippines NATIONAL LABOR RELATIONS COMMISSION Regional Arbitration Branch No.

VII Cebu City

JEOMON SANCHEZ, Complainant

NLRC RAB-VII CASE NO. 06-0889-12 FOR: Illegal Dismissal, Money Claims, Back Wages, Damages, and Attorneys Fees.

-versusRMG MANAGEMENT CORPORATION (JULIES BAKESHOP) Respondent x---------------------------------x POSITION PAPER FOR THE COMPLAINANT

Complainant JEOMON SANCHEZ, through the undersigned counsel, unto this Honorable Labor Arbiter, most respectfully submits his position paper and further alleges:

PREFATORY STATEMENT This is a case of illegal dismissal and non-payment of salary differential, overtime pay differential, night shift differential, holiday pay differential, service incentive leave, backwages, damages and Attorneys Fees filed by JOEMON SANCHEZ against RMG CORPORATION (JULIES BAKESHOP). The case had undergone the two mandatory mediation and conciliation conference but both parties did not agree on an amicable settlement. In view of such failed mediation and conciliation, the Honorable Labor Arbiter ordered both parties to submit their respective position papers. Hence, this position paper for the Complainant JEOMON SANCHEZ.

PARTIES
1. Complainant JEOMON SANCHEZ (SANCHEZ for brevity) is a Filipino, of legal age,

married, and a resident of Cabantan St., Brgy. Luz, Cebu City, Philippines. He may be served with notices and processes of the Honorable Office through the undersigned counsel at Mendoza Law Office, Suite 3E, JL Bldg., Don Jose Avila St., Capitol Site, Cebu City, Philippines.
2. Respondent RMG MANAGEMENT CORPORATION (RMG for brevity) is engaged in a

Bakeshop business that owns and/or manages a chain of JULIES BAKESHOPS in the Philippines and is a corporation organized and existing under the laws of the Philippines. Its
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main office is located at Ouano Road, North Reclamation Area, Mandaue City, Cebu, Philippines. STATEMENT OF FACTS
3. Complainant SANCHEZ was employed by respondent RMG as a Baker in one of its branches

of JULIES BAKESHOP located at Aznar Road, Urgello 1, Cebu City, Philippines on September 8, 2008. The machine copy of his Company Identification Card (ID) issued by RMG Corporation is attached herewith as ANNEX A and made an integral part hereof;
4. He was initially hired as Day Shift Baker until March 8, 2009;

5. Starting March 9, 2009 until his suspension day on May 10, 2012, he was suffered to work

perpetually as a Night Shift Baker with a shift schedule from Twelve (12) Midnight to Ten (10) oclock in the morning or a Ten (10) hour work shift despite his numerous demands to be transferred to Day Shift;

6. From the time he was hired until his suspension, complainant was assigned to different branches, namely: South Bus Terminal Branch, Urgellio 1 Branch, and eventually in Aznar Branch where he was terminated;
7. Further, from the day he was hired on September 8, 2008 until his suspension on May 10,

2012, Sanchez suffered to work for seven days a week without any rest day because the Company did not allow him to take a day-off;
8. Furthermore, in his entire work shift, he had only maximum of Ten (10) minutes to take his

meal because of the demands of his work.

9. Moreover, all throughout his employment, he only enjoyed the following holidays: New Years

Day, All Saints Day, Labor Day, Independence Day, National Heroes Day, Eidul Fitr and Christmas Day and nothing else;
10. From September 8, 2008 until April 8, 2009, SANCHEZ faithfully attended his work as a

baker but was paid only One Hundred Thirty Pesos (P130.00) per day of work for seven days a week when the minimum wage at that time was Two Hundred Sixty Seven Pesos (P267.00) 1 per eight (8) hours of work;

WAGE ORDER NO. ROVII-14. Effective June 16, 2008

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11. Nevertheless, from April 9, 2009 until October 8, 2009, he got an increase and was paid One

Hundred Fifty Pesos (P150.00) per day of work. However, that was still below the minimum wage law as the minimum wage at that time was at Two Hundred Sixty Seven Pesos (P267.00)2 per eight (8) hours of work;
12. Complainant once again got an increased wage from October 9, 2009 to October 8, 2011 and

was paid One Hundred Seventy Pesos (P170.00) per day but still the same was below the minimum wage because the minimum at that time was set already at Two Hundred Eighty Five Pesos (P285.00)3 per day;

13. Complainant enjoyed his last increase from October 9, 2011 until his suspension on May 10,

2012 as his wage was Two Hundred Pesos (P200.00) per day. Still this was below the minimum wage because at this time the minimum was Three Hundred Five Pesos (P305.00)4;
14. Original Copies of SANCHEZS former co-employees AFFIDAVITS to attest the truth of the

aforementioned circumstances, specifically paragraphs five (5) to twelve (12), are attached herewith as ANNEXES B and B-1 because he was not given any copies of his payslips and daily time record and the same payslips and daily time record were written in pencils;
15. Nevertheless, complainant, through his own efforts and pity from the cashier in his plight, he

was able to secure a photocopy of his payslip and daily time record from April 29 to May 9, 2012 and attached herewith as ANNEXES C and D respectively, to also prove the allegations in paragraph twelve (12); PERTINENT FACTS THAT LEAD TO COMPLAINANTS ILLEGAL TERMINATION
16. It all started when prior to his suspension on May 10, 2012, the bakeshop always suffered

shortage of cash despite its sale;

17. The management always reprimanded the night shift schedule personnel wherein complainant

SANCHEZ belonged because, according to the management and day shift personnel, only the night shift had the opportunity to steal money for the sole reason (non-sequitor) that they worked at night time;

Ibid. WAGE ORDER NO. ROVII-15/a Effective: September 1, 2010. Wage Order No. ROVII-16 a/ Effective: September 22, 2011.

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18. On March 09, 2012,5 SANCHEZ, in full good faith, wanted to solve the existing problem,

devised his own little way to know the real culprit because he did not want that innocent night shift staff like him, would be blamed on the shortage of cash. To do it, he came up of the idea of testing the cashier named Glenda Fortiza6, as he was suspicious of her. He pretended to entice the cashier to get money from the cashbox. The portion of his letter explanation addressed to the management as to this matter is quoted as follows: xxx. I did it because I felt something with a day shift staff that resulted in cash shortage and it was blamed on the night shift staff. I was trying to test if the cashier will take money from the cash register if someone asked her to do so. I believed that there were some people who took the money from the cash box with the connivance of the cashier without the management knowledge. Because many times I caught one of the staff who was (sic) lot (sic) of money on his or her locker. And because of it, I tried my own little way on how to expose them but I was (sic) failed.7
19. On March 14, 2012, SANCHEZ badly needed money for his fare. He asked the same cashier to

loan him Fifty pesos (P50) for his fare. However, the cashier instead told him to open the cash box and take money from there;
20. He did not take money from the cash box, instead, he took One Hundred Pesos (P100.00)

which was placed on top of the cash register and gave back to the cashier Fifty Pesos (P50.00) as he needed only Fifty Pesos (P50.00) for his fare;8
21. Due to the two incidents mentioned above, a Memorandum was issued addressed to the

Complainant SANCHEZ from the management dated May 9, 2012 with a subject POSSIBLE MISCONDUCT. The said Memorandum is attached herewith as ANNEX E.
22. Complainant SANCHEZ duly abided with the said Memorandum and submitted his

handwritten explanation thereof on May 10, 2012, explaining his good faith and necessity that respectively caused the two abovementioned incidents. The letter explanation is attached herewith as ANNEX F. It must be noted, however, that the two complained acts did not happen in the same day as wrongly stated in the Memorandum.

Contrary to the date stated in the Memorandum which was March 14, 2012. The fact was: the two complained acts did not happen in the same day. A dayshift scaler but assigned as night shift cashier at that time because the night shift cahier (Sanchezs partner) was on leave. Part of the 2nd paragraph of Complainants Letter explanation addressed to the management in accordance to the Memorandum issued on May 9, 2012. Such letter explanation is attached herewith as Annex F.
8 7 6

Please read the 3rd paragraph of the complainants letter explanation which is attached herewith as Annex

D.

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23. However , despite SANCHEZS letter explanation, the management, through Mr. Reynaldo

Argel, called up complainants presence in the HR Office and the latter asked the former to sign a blank paper. Believing that it was merely for attendance purposes, SANCHEZ signed the same;
24. SANCHEZ was not even informed of his right to know that the investigation had a purview of

possible dismissal. In fact, the HR Officer just told the complainant that it was merely for PREVENTIVE INVESTIGATION. There was even no hint or a shadow of information given by the management that he has the right to counsel for purposes of such investigation;
25. SANCHEZ was interviewed by the HR officer pertaining to the aforesaid memorandum and

the former reiterated his explanation as written in his letter. What frustrated SANCHEZ was that the Cashier whom he pretended to entice to get money from the cashbox and the same cashier whom he asked for a loan of FIFTY PESOS (P50.00) was not presented to him. In short, he was not given the opportunity to confront the cashier face to face and so to attest the truth about the incident of him asking FIFTY PESOS (P50.00) for a loan from the cashier;
26. On June 10, 2012, when he reported back to the HR Office to follow-up his status after the 30

day suspension (without pay) imposed on him, Complainant SANCHEZ was informed of his termination. He was not even given a copy of a letter of termination if indeed there was such letter;
27. Truly aggrieved by the injustice he suffered from the conduct of his employer, complainant

immediately consulted the undersigned lawyer and so eventually filed a Complaint9 for monetary claims, illegal dismissal, damages, and attorneys fees against the respondent on June 13, 2012. Hence, this present case. ISSUES
1. WETHER OR NOT COMPLAINANT SANCHEZ WAS ILLEGALLY DISMISSED

BY THE RESPONDENT.
2. WHETHER OR NOT COMPLAINANT SANCHEZ IS ENTITLED TO HIS

MONETARY CLAIMS AGAINST THE RESPONDENT.

3. WHETHER OR NOT COMPLAINANT SANCHEZ IS ENTITLED TO DAMAGES

AND ATTORNEYS FEES. ARGUMENTS

1.0 Complainant SANCHEZ was illegally dismissed by the respondent.

9

Attached herewith as ANNEX G.

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On the issue of whether or not complainant SANCHEZ was illegally terminated by the respondent, the answer is in AFFIRMATIVE. First, it must be noted that Complainant is no doubt a REGULAR EMPLOYEE. He worked for more than Three (3) years as a Baker which is truly and usually necessary and desirable in the usual business or trade of his employer being a bakery shop. Article 280 of the Labor Code provides, to wit: Art. 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. (emphasis ours) As provided by the above-quoted provision of law, complainant SANCHEZ is a regular employee despite provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties. Second, since Complainant SANCHEZ is a regular employee, he is under the protective mantle of the security of tenure clause provided by no less than the Labor Code of the Philippines. Article 279 of the said law says: Art. 279. Security of tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (emphasis and underscore provided) Hence, for a legal termination by the employer by reason of just cause to operate, two requirements are to be met, namely: a) substantial; and, b) procedural. The substantial requirement is provided under Article 282 of the Labor Code, to wit: Article 282. Termination by employer. An employer may terminate an employment for any of the following causes:

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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. (Emphasis ours) The procedural requirement, on the other hand, necessitates the Twin Notice Rule to be followed by the employer before terminating an employee. The first notice which must indicate specifically the infractions committed by the employee and the latter is given the opportunity to explain why he should not be terminated; and the second notice which informs the employee of the fact of his termination and the grounds relied upon by the employer. It is humbly submitted that both requirements, substantial and procedural, were not met by the respondent in terminating the complainant, thereby making the dismissal illegal.
1.1 The substantial requirement for valid

termination was not met by the respondent. As can be gleaned from the memorandum10 dated May 9, 2012 issued by the management to SANCHEZ, the subject is only: POSSIBLE MISCONDUCT. Indeed, this ground is not one of those provided for by law as a just cause for termination. The law is clear that for misconduct to be a ground for termination, it must be SERIOUS MISCONDUCT or WILLFUL DISOBEDIENCE by the employee of the lawful orders of his employer or representative in connection with his work. Clearly, the employer violated this requirement as he himself, through its HR Officer MR. ARGEL, was not even certain that the acts of SANCHEZ complained of constituted SERIOUS or merely a POSSIBLE MISCONDUCT. Further, the employer did not even inform the employee about company rules and regulations that may constitute SERIOUS MISCONDUCT or WILLFUL DISOBEDIENCE as a valid ground for termination. The complainant had not received any handbook or manual of company rules and regulations. Furthermore, the management was not even sure that the first complained act which was enticing the cashier to get money from the cashiers box without proper authorization11 is considered as SERIOUS MISCONDUCT. The Memorandum itself says: This action MAYBE considered similar to an act of encouraging others to steal or to violate company rules, regulations and policies.12 No stretch of imagination can accommodate the
10

Attached herewith as ANNEX E. Part of the Memorandum. Ibid.

11

12

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thinking that encouraging others to steal or to violate company rules, regulations and policies constitute SERIOUS MISCONDUCT. The management itself was not certain if the act complained of is even misconduct, thus dubbed it only as POSSIBLE MISCONDUCT. Moreover, the second complained act: you got money (P100.00) from the cashiers box without proper authorization from management13 was aptly explained by SANCHEZ in his letter explanation14 in this wise: On this occasion, I admit I asked the cashier to lend me some money because I did not have enough to pay for may (sic) fare. The cashier told me to open the cashbox and take money. But I did not do it and instead I took a P100 bill that was on top of the cash register and I gave back to the cashier P50 because I only needed enough for my fare. I asked the cashier to lend me some money from her own purse and not from the cashbox.15 As can be read in the memorandum, the report stated that complainant only got money from the cashiers box. The report did not say that complainant stole money. It is precisely because there was no stealing that happened. How can there be stealing if the one in charge in the cashiers box was present and was even the one who suggested to the complainant to get money from it as clearly explained by the complainant? Further, granting without admitting that there was indeed stealing that took place, how come only the complainant was under suspension and eventually terminated while the said cashier was not? What bothered the complainant is that the said cashier was not presented in front of the complainant to clarify and to speak the truth about the incident despite the latters request during the investigation. Rather, as pointed out above, they were summoned to the HR Office individually. In short, the act complained of was not stealing that may constitute SERIOUS MISCONDUCT. Pertinent jurisprudence defines SERIOUS MISCONDUCT as follows: Misconduct has been defined as improper or wrong conduct. It is the 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. For misconduct to be considered serious it must be of such grave and aggravated character and not merely trivial or unimportant.16 Misconduct 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.17 Moreover, mere error in judgment cannot qualify as misconduct (much less a serious one) because of lack wrongful intent. As held in NLRC vs. Salgarino18 , it is not sufficient that the act or
13

Number 2 in the Memorandum attached herewith as ANNEX E.

14

Attached herewith as ANNEX D. Third paragraph of complainants letter explanation attached herewith as ANNEX C.
16

15

Austria vs. National Labor Relations Commission, (G.R. No. 124382), August 16, 1999. Colegio de San Juan de Letran-Calamba vs. Villas, (G.R. No. 137795), March 26, 2003. G.R. No. 164376, July 31, 2006

17

18

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conduct complained of has violated some established rules or policies. It is equally important and required that the act or conduct must have been performed with wrongful intent. As clearly explained by the complainant, he pretended to entice the cashier to get money from the cashbox because he wanted to solve the existing problem of cash shortage. It was, at the most, a mere error of judgment which, as held by the Supreme Court, does not constitute serious misconduct. Moreover, the misconduct must not only be serious but it must also be in connection with or be related to the performance of the employees duties and must show that he has become unfit to continue working for the employer.19 The act complained of against the complainant was in no way connected with or related to the latters duties as a baker. Granting, for arguments sake, that respondent relied on Article 282, Paragraph (e) of the Labor Code, to wit: e. Other causes analogous to the foregoing., still the complainants complained acts could not be considered as analogous to any of the grounds provided for by law. The procedural requirement for valid termination was not met by the respondent. The other requirement for valid termination due to just cause is the procedural requirement which is also known as the TWIN NOTICE RULE. These two notices requirement were not properly issued by the respondent thereby violating complainants right to procedural due process. True, the respondent sent a notice called memorandum addressed to the complainant. However, for such notice to qualify in the standards set by law, the Supreme Court held: Article 277 (b) of the Labor Code and Section 2, Rule XXIII, Book V of the Rules Implementing the Labor Code further require the employer to furnish the employee with two (2) written notices, to wit: (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; and, (b) 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. The first notice, which may be considered as the proper charge, serves to apprise the employee of the particular acts or omissions for which his dismissal is sought. The second notice on the other hand seeks to inform the employee of the employer's decision to dismiss him. This decision, however, must come only after the employee is given a reasonable period from receipt of the first notice within which to answer the charge and ample opportunity to be heard and defend himself with the assistance of a representative, if he so desires. This is in consonance with the express provision of the law on the protection to labor and the broader dictates of procedural due process. Noncompliance therewith is fatal because these requirements are conditions sine qua non before dismissal may be validly effected.20 (Emphasis supplied)
19

G.R. No. 148205, February 28, 2005.

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It is very clear that the notice must contain specifically the acts complained of and to explain why the employee concerned should not be terminated. In short, the notice must specify that penalty of termination is being sought by the employer. This was patently violated by the notice sent to the complainant. Note that the notice merely cited the infraction as POSSIBLE MISCONDUCT. Moreover, the memorandum only stated: In this connection, you are hereby directed to explain in writing within forty eight (48) hours upon receipt of this memorandum why no disciplinary action will be imposed on for (the) above-mentioned acts.21 (emphasis supplied) Clearly, the memorandum sent to the complainant did not specifically seek for the termination of the latter. Rather, it only wanted for a disciplinary action. Thus, such notice did not qualify as the notice required by law. In effect, the respondent violated the complainants right to be properly informed of the charges against him. As to the second notice, the complainant was only orally informed that he was already terminated and nothing else. He was given no notice whatsoever that contain the fact of his termination and the grounds relied upon for his termination. 2.6. Complainant must be granted separation pay in lieu of reinstatement and full backwages. Thus, as duly established above that complainants dismissal was illegal, the complainant is entitled to his reinstatement and full backwages. The law clearly provides: Art. 279. Security of tenure. xxx. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. Since, in the present case, a strained relationship between the complainant and respondent had developed, reinstatement is no longer a practical solution. In a case where reinstatement is no longer desirable by both parties, the Supreme Court ruled, to wit: [T]he award of separation pay is inconsistent with a finding that there was no illegal dismissal, for under Article 279 of the Labor Code and as held in a catena of cases, an employee who is dismissed without just cause and without due process is entitled to backwages and reinstatement or payment of separation pay in lieu thereof: Thus, an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted. In effect, an
20
21

Austria vs. National Labor Relations Commission, (G.R. No. 124382), August 16, 1999.

Part of the memorandum which is attached herewith as ANNEX D.

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illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages. The normal consequences of respondents illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. The payment of separation pay is in addition to payment of backwages.22 (emphasis, italics and underscoring supplied) Furthermore, The Supreme Court in Velasco v. National Labor Relations Commission emphasizes: The accepted doctrine is that separation pay may avail in lieu of reinstatement if reinstatement is no longer practical or in the best interest of the parties. Separation pay in lieu of reinstatement may likewise be awarded if the employee decides not to be reinstated.23 (emphasis in the original; italics supplied) Moreover, the Supreme Court further discusses:

Under the doctrine of strained relations, the payment of separation pay is considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. On one hand, such payment liberates the employee from what could be a highly oppressive work environment. On the other hand, it releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust.24

2.0. Complainant SANCHEZ is clearly entitled to his monetary claims against the respondent. On the SECOND ISSUE: whether or not the complainant is entitled to his monetary claims, undoubtedly, the answer is again in AFFIRMATIVE. Under labor standards law, complainant is clearly entitled to his money claims against the respondent. 2.1. The respondent is liable to pay the complainant wage differentials. When complainant SANCHEZ worked for the respondents bakeshop from September 8, 2008 until his illegal termination on June 10, 2012, he rendered service for seven days a week. However, what is more painful is that the complainants wage was way below the minimum set by law. The respondent is not exempt from complying the minimum wage law because it employs more than Ten (10) workers as it owns a chain of JULIES BAKESHOP around the country. Although, complainant got an increase of wage on some occasions but the same were still below
22

Macasero v. Southern Industrial Gases Philippines, (G.R. No. 178524), January 30, 2009.

Golden Ace Builders v. Talde, (G.R. No. 187200), May 5, 2010; Coca Cola v. Daniel, (G.R. No. 156893), June 21, 2005.
24

23

Ibid.

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the minimum wage law. Abiding the prescriptive period of three (3) years, the period of employment covered is from May 10, 2009 to May 10, 2012 (date of suspension). The wage differentials are set below as follows: From May 10, 2009 to Oct. 8, 2009, he was paid only with One hundred fifty pesos (P150) while the minimum wage was wage at that time was Two Hundred Sixty Seven Pesos (P267.00)25 per eight (8) hours of work. So, he was entitled to wage differential in the amount of One hundred Seventeen Pesos (P117.00) a day starting May 10, 2009 to October 8, 2009 or a total of Seventeen Thousand Five Hundred Fifty Pesos (P17,550.00). From Oct. 9, 2009 to Oct. 8, 2010, he got an increase of Twenty Pesos (P20.00) a day hence he was paid a rate of One Hundred Seventy (P170) per day. However, the minimum wage from June 16, 2008 to September 1, 2010 was Two Hundred Sixty Seven (P267.00) per day. Thus, he was still underpaid from Oct. 9, 2009 to Sept. 1, 2010 for Ninety Seven Pesos (P97.00) a day or a total of Thirty One Thousand Forty Pesos (P31,040). However, the minimum wage rate from September 1, 2010 to October 30, 2011 was increase to Two Hundred Eighty Five Pesos (P285)26 per day. From September 1, 2010 to Oct. 8, 2010, he was paid only with One Hundred Seventy Pesos (P170) a day. So, he was underpaid of One Hundred Fifteen Pesos (P115) per day for 7 days or a total of Eight Hundred Five Pesos (P805.00). From October 9, 2010 to May 10, 2012, he got an increase of P30 a day and so was paid a rate of Two Hundred Pesos (P200.00) a day. However, he was still underpaid because the minimum wage rate from September 1, 2010 to August 30, 2011 is Two Hundred Eighty Five Pesos (P285.00) a day. So, his working days from October 9, 2010 to August 30, 2011 were underpaid of Eighty Five Pesos (P85.00) a day or a total of Twenty Seven Thousand Two Hundred Pesos (P27,200.00). From Sept. 1, 2011 to the present, the minimum wage rate is Three Hundred Five Pesos (P305.00) a day. But, from October 8, 2011 to May 10, 2012 (date of suspension), he was paid only with Two Hundred Pesos (P200.00) a day. Hence, he was underpaid of One Hundred Five Pesos (P105.00) a day or the amount of Twenty Two Thousand Fifty Pesos (P22,050.00).

25

WAGE ORDER NO. ROVII-14. Effective June 16, 2008 WAGE ORDER NO. ROVII-15/a Effective : September 1, 2010

26

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Therefore, complainant is entitled to wage differential for not complying the correct minimum wage rate, exclusive of other benefits under the labor law, amounting to Ninety Eight Thousand Six Hundred Forty Five Pesos (P98,645.00). 2.1 Complainant is entitled to a rest day premium. As asserted above, the complainant worked for seven days a week during his entire employment period. By law, he is entitled to a rest day. Article 91 of the Labor Code is very clear on this matter. It says: Art. 91. Right to weekly rest day. a. It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days. However, he was given none by the employer as he suffered to work for seven days a week. Thus, by law, he must have worked his rest day and so entitled to a rest day premium. The Omnibus Rules Implementing the Labor Code provides, to wit: SECTION 9. Premium and overtime pay for holiday and rest day work. (a) Except employees referred to under Section 2 of this Rule, an employee who is permitted or suffered to work on special holidays or on his designated rest days not falling on regular holidays, shall be paid with an additional compensation as premium pay of not less than thirty percent (30%) of his regular wage. For work performed in excess of eight (8) hours on special holidays and rest days not falling on regular holidays, an employee shall be paid an additional compensation for the overtime work equivalent to his rate for the first eight hours on a special holiday or rest day plus at least thirty percent (30%) thereof. Since he worked for Seven (7) days a week, one day of which he worked on is considered as his rest day. Still subject to the Three year prescriptive period (the covered period is from May 10, 2009 to May 10, 2012), thus: From May 10, 2009 to September 1, 2010, the minimum wage was wage at that time was Two Hundred Sixty Seven Pesos (P267.00)27 per eight (8) hours of work. By law, the rest day premium is 30% of the regular wage which is Eighty Pesos (P80.1). Hence, from May 10, 2009 to September 1, 2010, there were Fourteen (14) months and there are 4 days in every month or a total of Fifty Six (56) days which were not paid or a total of Four Thousand Four Hundred Eighty Five (P4,485.00). From Sept. 2, 2010 to August 30, 2011, the minimum wage was Two Hundred Eighty Five Pesos (P285) per day. The Thirty percent (30%) of which is Eighty Five Pesos and Fifty Cents (P85.50) which is his rightful rest day premium per rest day worked. During that period, there were
27

WAGE ORDER NO. ROVII-14. Effective June 16, 2008

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Twelve (12) months or a total of Forty eight (48) days. Thus, he is entitled to Four Thousand One Hundred Four Pesos (P4,104.00) for those dates. From September 1, 2011 up to the present, the minimum wage is Three Hundred Five Pesos (P305). So, from September 1, 2011 until his suspension on May 10, 2012, there were Eight (8) months or Thirty (30) days and his rest day premium is Ninety One Pesos and Fifty cents. (P91.50). Hence, he is entitled to Three Thousand Six Hundred Sixty Pesos (P3,660.00) rest day premium. All in all, he is entitled to Twelve Thousand Two Hundred Forty Nine Pesos (P12,249.00) for unpaid rest day premium. 2.2. The Complainant is entitled to his unpaid holiday premium. As narrated in the facts of the case, the complainant admits that he was paid Holiday premium but only as to the following holidays: New Years Day, All Saints Day, Labor Day, Independence Day, National Heroes Day, Eidul Fitr and Christmas Day or only for seven holidays in a year and nothing else. The law provides for Twelve Regular Holidays and other special days. Thus, the respondent is liable to the complainant to the unpaid regular holidays including the holiday differentials and special days. Again, subject to the Three year prescription, the period covered is from May 10, 2009 to May 10, 2012. Admittedly, complainant was paid seven (7) regular holidays. However, his pay was below the minimum wage. So, he is entitled to the difference. From May 10, 2009 to Dec. 31, 2009, the minimum wage was Two Hundred Sixty Seven Pesos (P267.00) a day but he was paid only One Hundred Fifty Pesos (P150.00) per day. Thus, he is entitled to the difference of One Thousand Six Hundred Thirty Eight Pesos (P1,638.00) for the holidays in which he was paid for. Still, for the other five regular holidays which he worked for but not paid, he is entitled to 200% of the minimum wage. Thus, from May 10, 2009 to Dec. 31, 2009, the respondent is liable for Two Thousand Six Hundred Seventy Pesos (2,670.00). From January 1, 2010 to August 30, 2010, there were eight (8) regular holidays but he was paid only for seven (7) holidays and the minimum wage was Two Hundred Sixty Seven Pesos (P267.00) a day. Thus, he is entitled to the difference of One Thousand Six Hundred Thirty Eight Pesos (P1,638.00) for the holidays he was paid for plus Five Hundred Thirty Four Pesos (P534.00) for the one (1) unpaid holiday.
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From September 1, 2010 to December 31, 2010, there were 4 regular holidays which were not paid. Note that the minimum wage was at that time was Two Hundred Eighty Five Pesos (P285.00) per day. Thus, complainant is entitled to regular holiday pay of One Thousand Sixty Eight Pesos (P1,068.00). From January 1, 2010 to August 30, 2010, there were two (2) special non-working holidays and the minimum wage was P267 (x 30%). Thus, complainant is entitled to One Hundred Sixty Pesos (P160.00). From Sept. 1, 2010 to Dec. 31, 2010, there were 2 special non-working holidays and the minimum wage was P285 (x 30%). Thus, he is entitled to One Hundred Seventy One Pesos (P171.00). From Jan. 1, 2011 to August 30, 2011, there were 7 regular holidays and the minimum wage was Two Hundred Eighty Five Pesos (P285.00). He was paid for these regular holidays but below the minimum. Thus, he is entitled to the difference of One Thousand Two Hundred Ten (P1,210.00). From January 1, 2011 to August 30, 2011, there were two (2) special non-working holidays which were not paid. Thus, he is entitled to One Hundred Seventy One (P171.00) for January 1, 2011 to August 30, 2011 special days. From September 1, 2011 until his suspension May 10, 2012, there were nine (9) regular holidays and the minimum wage was Three Hundred Five Pesos (P305.00). Out of these nine (9) regular holidays, he was paid only for five (5) holidays for Two Hundred Pesos (200.00) a day. Thus, complainant is entitled to the difference of One Thousand Fifty (P1,050.00). From September 1, 2011 until suspension on May 10, 2012, there were 3 special nonworking holidays and the minimum wage was P305. Thus, he is entitled to unpaid special days amounting to Two Hundred Seventy Four pesos and Fifty Cents (P274.50). All in all, he is entitled to holiday premium and differential of Ten Thousand Four Hundred Thirteen Pesos and Fifty Cents (P10,413.50). 2.3. The Complainant is entitled to Unpaid Overtime and Overtime Differential.

As to the issue of overtime pay, the law could not be any clearer that the complainant is entitled to such overtime pay and overtime pay differential. The Labor Code says: Art. 87. Overtime work. Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent
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(25%) thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof. As asserted above, from the start of employment until his suspension, complainant is required to work for ten (10) hours (from 12:00 Midnight to 10 a.m.). He was paid only for one hour as overtime pay. His meal time which was only for maximum of 10 minutes was not paid for. Although, he was paid for one hour overtime, such payment was based on his regular pay which was below the minimum wage set by law. Thus, he is entitled to overtime pay differential. Hence: From May 10, 2009 to October 8, 2009, he was paid only with P150/day. So, his overtime pay was only P23.44/hour for 148 hours. However, by law, he must be paid with P41.72/hour (minimum wage x 25% / 8 hours). Therefore, he is entitled to overtime differential of P18/hour. Hence, he is entitled to Two Thousand Six Hundred Sixty Four Pesos (P2,664.00). From Oct. 9, 2009 to Oct. 8, 2010, he got an increase of P20 a day hence he was paid a rate of P170 a day. However, the minimum wage at those dates was P285/day. So, his overtime pay was only P26.56/hour. However, by law, he must be paid with P44.53/hour. Therefore, he is entitled to overtime differential of P17.97/hour. There were 365 hours. Hence, he is entitled to Six Thousand Five Hundred Fifty Nine Pesos and fifty Cents (P6,559.50). From Oct. 9, 2010 to his suspension on May, 10, 2012, he got an increase of P30 a day and so was paid a rate of P200 day. However, he was still underpaid because the minimum wage rate from Sept. 1, 2010 to August 30, 2011 is P285/day. He was paid with an overtime rate of P31.25 where he should be paid with P44.53/hour overtime rate. From Oct. 9, 2010 to August 30, 2011, there were a total of 330 working hours. So, the difference is P13.28/hour. Thus, he is entitled to Four Thousand Three Hundred Eighty Two Pesos and Eighty One Cents (P4,382.81). From September 1, 2011 to the present, the minimum wage rate is P305. But, from October 8, 2011 to suspension on May 10, 2012 or for 237 hours, he was paid only with P31.25/hour where he should be paid with P47.65/hour overtime rate. Hence, he is entitled to a differential of P16.41/hour. Therefore, his unpaid overtime differential is Three Thousand Eight Hundred Eighty Eight Pesos and Twenty Eight cents (P3,888.28). All in all, his unpaid overtime differential is Seventeen Thousand Four Hundred Ninety Three and Seventy Eight Pesos (P17,493.78). Unpaid Overtime Pay
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From the start of employment until suspension, complainant is required to work for ten (10) hours a day for seven days a week (from 12:00 Midnight to 10 A.M.). He was paid only for one hour as computed above. However, his meal time which was only for maximum of Ten (10) minutes was not paid for. The law clearly states: SECTION 7. Meal and Rest Periods. Every employer shall give his employees, regardless of sex, not less than one (1) hour time-off for regular meals, except in the following cases when a meal period of not less than twenty (20) minutes may be given by the employer provided that such shorter meal period is credited as compensable hours worked of the employee: xxx Rest periods or coffee breaks running from five (5) to twenty (20) minutes shall be considered as compensable working time. (Emphasis ours) Thus, complainant is entitled to his unpaid overtime pay. Hence: From May 10, 2009 to Oct. 8, 2009, there were a total of 158 days. Thus, he rendered also One Hundred Fifty Eight (158) hours. By law, he must be paid with P41.72/hour (minimum wage x 25% / 8 hours). Hence, he is entitled to Six Thousand Five Hundred Ninety One Pesos and Seventy Six Cents (P6,591.76). From Oct. 9, 2009 to Oct. 8, 2010, the minimum wage was P285/day. There were 365 hours. By law, he must be paid with P44.53/hour. Therefore, he is entitled to unpaid overtime pay of Sixteen Thousand Two Hundred Fifty Three and Forty Five Cents (P16,253.45). From Oct. 9, 2010 to suspension on May 10, 2012, the minimum wage rate from Sept. 1, 2010 to August 30, 2011 was P285/day. By law, he must be paid with P44.53/hour. From Oct. 9, 2010 to August 30, 2011, there were a total of 330 working hours. So, his unpaid overtime pay is Fourteen Six Hundred Ninety Four and Ninety Cents (P14,694.90). From Sept. 1, 2011 to the present, the minimum wage rate is P305 and so the overtime pay must be P47.65/hour. From Oct. 8, 2011 to suspension date on May 10, 2012, there were 217 hours worked. Hence, he is entitled to unpaid overtime pay of Ten Thousand Three Hundred Forty Pesos and Five Cents (P10,340.05). All in all, his unpaid overtime pay is Forty Seven Thousand Eight Hundred Eighty Pesos and Sixteen Cents (P47,880.16). 2.4. Complainant is entitled to his 13th Month Pay Differential Complainant admits that he was paid with 13th Month Pay. However, his 13th month pay is based from his basic wage which was way below the minimum wage. His 13th month pay must be
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based from the minimum wage set by law. Thus, complainant is no doubt entitled to the 13th month pay differential. Hence: From May 10, 2009 to December 2009, his daily wage was only P150.00 plus P23.43 overtime or monthly pay of P5,202. The 13th month pay paid to him was only P3,035.00. However, by law, his 13th month pay from May to December 2009 should be P5,460. Therefore, he is entitled to the difference of Two Thousand Four Hundred Twenty Pesos (P2,420.00) From January 2010 to Dec. 2010, he received P6,450 as 13th month pay. By law, he should have received P9,930 as 13th month pay. Thus he is entitled to the difference of Three Thousand Four Hundred Eighty Pesos (P3,480.00). For January 2011 to December 2011, he received P6,450 as 13th month pay. By law, he should have received P9,930 as 13th month pay. Thus he is entitled to the difference of Three Thousand Four Hundred Eighty Pesos (P3,480.00). For January 2012 to May 2012, he should have received P2,312 as 13th month pay. By law, he should receive P3,526.56 as 13th month pay. Thus he is entitled to the difference of One Thousand Two Hundred Fourteen Pesos and Fifty Six Cents (P1,214.00). All in all, respondent is liable to the complainant to pay the 13 th month pay differential in the total amount of ten Thousand Five Hundred Ninety Four Pesos and Fifty Six Cents (P10,594.56). 2.4. Respondent is liable to pay the complainant Night Shift Differential. Above all else, for the complainant, the most painful thing in his employment is to be perpetually assigned in the night shift schedule. Despite his numerous demands to be assigned in the day shift for fear that this may toll on his health, he was still suffered to work in the night shift. He was a night shift baker starting from March 2009 until he was suspended on May 10, 2012. All those times, he worked from Twelve (12) Midnight to Ten (10) oclock in the morning. The law is very clear on this matter. The Labor Code provides, to wit: Art. 86. Night shift differential. Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of work performed between ten oclock in the evening and six oclock in the morning. The Omnibus Rules Implementing the Labor Code provides for the exception of this law. It says:
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Night Shift Differential SECTION 1. Coverage. This Rule shall apply to all employees except: (a) Those of the government and any of its political subdivisions, including government-owned and/or controlled corporations; (b) Those of retail and service establishments regularly employing not more than five (5) workers; (c) Domestic helpers and persons in the personal service of another; (d) Managerial employees as defined in Book Three of this Code; (e) Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.

Nothing, however, in any of the aforementioned exceptions that respondent belongs. Thus, no doubt, that the respondent is liable to pay the complainant night shift differential of six (6) hours a day because he worked from Twelve (12) Midnight to Ten (10) A.M. From May 10, 2009 to October 8, 200928 or a total of 156 days, complainant is entitled to Thirty Six Thousand One Hundred Twenty Nine Pesos and Sixty Cents (P36,129.60). From October 9, 2009 to August 30, 201029, there were 355 days worked in the same schedule. Thus, he is entitled to Fifty Six Thousand Eight Hundred Seventy One Pesos (P56,871.00). From September 1, 2010 to August 30, 201130 or 330 days of work in the same night shift schedule, respondent is liable to the complainant in the amount of Fifty Six Thousand Four Hundred Thirty Pesos (P56,430.00). From Sept. 1, 2011 to May 10, 201231 (suspension date) or a total of 247 days of work, still in the same nightshift schedule, the entitled amount is Forty Five Thousand Two Hundred One Pesos (P45,201.00). All in all, complainant is entitled to his unpaid night shift differential in the amount One Hundred Ninety Four Thousand Six Hundred Thirty One Pesos and Sixty Cents (P194,631.69). To summarize, Labor Standards Law and pertinent jurisprudence dictate that respondent is liable to pay the complainant the following money claims and their corresponding amounts:
28

Minimum wage was P267/day. Minimum wage was P267/day. P285/day minimum wage. Minimum wage was P305/day.

29

30

31

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Wage differentials --------------------------------------- P98,645.00 Rest day premium --------------------------------------- P12,249.00 Holiday Premium And Differential ------------------ P10,413.50 Unpaid Overtime Differential-------------------------- P17,493.78 Unpaid Overtime Pay------------------------------------ P47,880.16 13th Month Pay Differential----------------------------- P10,594.56 Night Shift Differential ---------------------------------P194,631.69 P391,907.69 Assuming, for the sake of argument, that the complainant voluntarily agreed with his compensation, the law mandates that he is entitled to recover the deficiency from the respondent. Article 1419 of the New Civil Code of the Philippines states: When the law sets, or authorizes the setting of minimum wage for laborers, and a contract is agreed upon by which a laborer accepts a lower wage, he shall be entitled to recover the deficiency.32 Thus, the act of the complainant in agreeing to receive a wage below the minimum set by law cannot be taken against him. It is expressly provided for by law that complainant shall be entitled to recover the deficiency from the respondent. 3.0. Complainant is clearly entitled to damages and attorneys fees. The issue of whether or not complainant SANCHEZ is entitled to damages and attorneys fees must be answered in the AFFIRMATIVE. The act of the respondent in unjustly and illegally dismissing complainant SANCHEZ caused him serious anxiety, wounded feelings, besmirched reputation, and sleepless nights as he was unduly branded in the workplace as a theft. He was not given the opportunity to confront the cashier face to face to clarify the truth of the incident. Further, after the suspension and termination, he was literally confronted with the problem of where to get his next meal. To compensate the moral damage suffered by the complainant, respondent must pay the latter moral damages in the amount of One Hundred Thousand Pesos (P100,000.00). Although respondent sent notice to the complainant, the same was already intended to terminate the complainant and not really to discover the truth of the complaint against the complainant. The cashier concerned was not even presented in front of the complainant. Such act by the respondent indicated bad faith and wanton disregard of the rights and plight of the complainant. Moreover, the act of the respondent in perpetually assigning the complainant to night
32

Article 1419 of the New Civil Code.

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shift schedule despite the latters numerous demands to be transferred or sometimes relieved in the said shift clearly constitute bad faith and undue indifference to the health and person of the complainant. Thus, respondent must be held liable to pay the complainant exemplary damages in the amount of One Hundred Thousand Pesos (P100,000.00) as a deterrent and to prevent any repetition thereof. Granting without admitting that the dismissal was anchored on a just cause, still the respondent must be made liable to pay damages for violating procedural due process. As established above, the Twin Notice Rule was not aptly met by the respondent. Hence, as enunciated in Agabon Doctrine, the Supreme Court ruled, to wit: The violation of the petitioners right to statutory due process by the private respondent warrants the payment of indemnity in the form of nominal damages. The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant circumstances. Considering the prevailing circumstances in the case at bar, we deem it proper to fix it at P30,000.00. We believe this form of damages would serve to deter employers from future violations of the statutory due process rights of employees. At the very least, it provides a vindication or recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules. Last, since the complainant was constrained to hire a lawyer because of his illegal dismissal, the respondent must pay attorneys fees. PRAYER WHEREFORE, in view of the foregoing premises, it is most respectfully prayed of this Honorable Office to: a) Declare the dismissal of the complainant as illegal; b) Grant the complainant backwages starting from his undue suspension on May 10, 2012 and separation pay in lieu of reinstatement equivalent to one month for every year of service; c) Grant the monetary claims of complainant against the respondent;
d) Award the complainant moral damages in the amount of One Hundred Thousand Pesos

(P100,000.00) and exemplary damages amounting to One Hundred Thousand Pesos (P100,000.00);
e) Order the respondent to pay complainant nominal damages as enunciated in Agabon

Doctrine in the amount of Thirty Thousand Pesos (P30,000.00); f) Award attorneys fees in favor of the complainant. All other reliefs just and equitable under the foregoing premises are likewise prayed for.

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Cebu City, Philippines. July, 14, 2012.

ATTY. GREGORIO R. REFUGIO Counsel for the Complainant Mendoza Law Office Suite 3E, JL Bldg., Don Jose Avila St., Capitol Site, Cebu City Roll No. 60311/ March 23, 2012 PTR No. 2611041/May 7, 2012/ Cebu City IBP No. 89383, /March 19, 2012/Manila MCLE EXEMPT

Copy Furnished: RMG MANAGEMENT CORPORATION (JULIES BAKESHOP)

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