Professional Documents
Culture Documents
VERSUS -
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REPLY
(To Respondents Position Paper)
COMPLAINANT, by himself and unto this Honorable Office, most
respectfully submits this Reply to Respondents Position Paper, thus avers
that:
1. Respondents, in paragraph #3, page #2 of their position paper
alleged that - Mr. Aswin Sukumar never passed any derogatory or racist
remark to Complainant.
Complainant denies the foregoing allegation. Nowhere in the email of
Respondent Sukumar sent to Complainant on 26 November 2014 (Annex 6
of Respondents position paper) that he ever denied casting aspersions
against the reputation of Complainant on 21 November 2014 when he,
together with Respondents Reyes and Argana, served the 5-day suspension
notice. All that he said in his email reply was we do feel that you are
wrongly interpreting things.
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prolapse,
peripheral
neuropathy,
cervical
stenosis,
cervical
deserve
scant
consideration.
Those
illnesses
are
mere
Where did
Respondents get all these medical terms if Complainant truly did not submit
any medical certificate?
Whereas,
the
truth
is
that
Complainant
has
never
verbally
justify
The truth is that the Respondents are the one with a very creative
mind. They suppressed the truth that Complainant in fact submitted medical
certificates duly verified by Respondent Sitels Clinic Team 1
All of these
of
cervical
stenosis,
cervical
radiculopathy,
myofascial
pain
with
copies
of
Complainants
verified
medical
certificates.
of
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(b) For union dues, in cases where the right of the worker or his union to
check-off has been recognized by the employer or authorized in writing by the
individual worker concerned; and
(c) In cases where the employer is authorized by law or regulations issued by
the Secretary of Labor.
As correctly pointed out by the LA, "absent a showing that the withholding
of complainants wages falls under the exceptions provided in Article 113,
the withholding thereof is thus unlawful."
In the same case, the Supreme Court also held that:
What made it impossible, unreasonable or unlikely for respondent to continue
working for SHS was the unlawful withholding of his salary. For said reason,
he was forced to resign (underscoring supplied).
XX
XX
XX
What is significant is that the respondent prepared and served his resignation
letter right after he was informed that his salary was being withheld. It would
be absurd to require respondent to tolerate the unlawful withholding of his
salary for a longer period before his employment can be considered as so
impossible, unreasonable or unlikely as to constitute constructive dismissal.
Even granting that the withholding of respondents salary on November 30,
2005, would not constitute an unlawful act, the continued refusal to release his
salary after the payroll period was clearly unlawful (underscoring supplied).
The petitioners claim that they prepared the check ready for pick-up cannot
undo the unlawful withholding.
It is worthy to note that in his resignation letter, respondent cited petitioners
"illegal and unfair labor practice" as his cause for resignation. As correctly
noted by the CA, respondent lost no time in submitting his resignation letter
and eventually filing a complaint for illegal dismissal just a few days after his
salary was withheld. These circumstances are inconsistent with voluntary
resignation and bolster the finding of constructive dismissal. (underscoring
supplied)
xxxx
Though not doing anything, this agent is still being paid by Respondent
Sitel.
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against Remion.
3[] Attached hereto as Annex C and made an integral part hereof is a copy of the electronic
mail correspondence of Zaldy Espaola, coach of Diosdado Remion, dated 29 June 2014
4[] Attached hereto as Annex D and made an integral hereof is a copy of the electronic mail
correspondence of Complainant Pascual dated 21 July 2014
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admits
that
in
fact
he
sent
an
electronic
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In Dr. Danilo T. Ting and Mrs. Elena Ting VS. Court of Appeals, G.R. No.
146174, July 12, 2006, the Supreme Court said
Indeed, as keenly pointed out by the Executive Labor Arbiter, and
seconded by the appellate court, sickness justifies an employee from being absent
or leaving his work. To demand from private respondent to remain in F/B Liza
V despite the excruciating physical pain that he was suffering on the day of 11
June 1998, would be to ignore that labor is a human capital subject to the frailties
of the physical body (underscoring supplied).
8.
alleged that Though the infraction of Complainant was a very serious offense that would
warrant his termination, management recognized the fact that the root of the
problem was not of Complainants doing but of another supervisor who had
long resigned from Sitel. Nevertheless, management still found fault by way
of omission on the part of Complainant warranting his suspension.
Complainant denies any omission on his part. Hence, his suspension
has no basis in fact and in law. The real parties who are grossly negligent are
the Respondents themselves. Their combined inaction is the proximate and
immediate cause why Sitel sustained pecuniary losses occasioned by
Remions continued employment. For had anyone among the Respondents
been faithful in the performance of their obligations as required by Sitel Code
of Conduct, as follows:
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I. FUNDAMENTAL RESPONSIBILITIES
XX
XX
XX
Complainant
admits
that
Respondent
Sukumar,
together
with
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admits
that
he
received
the
aforesaid
of
anything that will cause him to be branded as truly anti-Filipino and will
reinforced the contents of Complainants 25 November 2014 email.
The events that transpired during the service of 5-day suspension at
the 31st floor conference room of Respondent Sitel on the early morning of 21
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November 2014 and the tenor of the words and phrases by which
Respondent Sukumar couched his 25 November 2014 reply email are two
separate but inter-locking events. The first being the real scenario (vividly
described in Complainants email dated 25 November 2014 [Annex P up to
Annex P-1 of Complainants position paper] and 30 November 2014 [Annex
Q up to Annex Q-2 of Complainants position paper]) that transpired
when three managers of Sitel in the persons of Respondents Sukumar,
Reyes, and Argana bonded together solely for the purpose of serving the 5day Notice of Suspension to Complainant.
2014 at the Comcast CSG production floor and provided her with a copy of
his
resignation
letter.
Respondent
Reyes
receive
the
notice
from
[c]
9:24
A.M.
(Annex
up
to
Annex
U-3
of
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an immense sense of
insecurity with his job the threat of immediate termination from work, if
not aggression. This is a heavy burden carried on Complainants shoulder
which resulted to a resolution on his part to protect himself from
uncertainty. Thus, Complainant felt compelled to give up his employment.
14. Respondents, in pages #9 of their position paper, alleged that During the mediation, SENa Mediator Ma. Zenaida Nicolas consistently
advised Complainant to speak up and air out his concerns to reach an
amicable settlement between the parties.
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spoke nor uttered even a single word as he just pointed to his adviser who
was allegedly an HR practitioner who did all the talking.
Complainant denies the foregoing allegation. The truth is that during
the 1st conciliation conference on 7 January 2015, Respondents legal
counsel, who arrived one hour late, requested for a re-scheduling of the
conciliation conference on 21 January 2015 adducing reason that she has not
studied the documents provided her by Respondent Sitel.
Thus, effectively
shutting the door for any further conciliation meeting. Hence, the parties
were ordered to simultaneously file their position papers.
15. Respondents, in paragraph #1, page #11 of their position paper for
the nth time re-stated their fantastically imagined sheer fabrication-by-theComplainant theory.
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subjected to was the five-day suspension for his omission when it appeared
that Complainant took no action about his unproductive agents situation
since July 2014 and simply allowed the agent to report for work every day
without taking calls. The penalty of suspension is clearly warranted under
the circumstances.
Complainant denies any omission on his part. Hence, his suspension
and withholding of salaries have no basis in fact and in law. The real parties
who are grossly negligent are the Respondents themselves. Their inaction is
the proximate and immediate cause why Sitel sustained pecuniary losses
occasioned by Remions continued employment. For had anyone among the
Respondents been faithful in the performance of their obligations as required
by Sitel Code of Conduct, as follows:
I. FUNDAMENTAL RESPONSIBILITIES
XX
XX
XX
all
of
them
(Respondents)
had
been
remiss
in
the
performance of their duties causing the Remion case to drag on and remain
unresolved until such time Complainant joined Comcast CSG account as
Coach (Supervisor).
17.
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19.
paper, alleged that Instead, he did not air his concerns in the meeting with
Aswin Sukumar and only kept quiet for the entire duration of the meeting
insisting that he was advised by his lawyer not to speak at all.
Complainant admits the allegation above only with regards to the
conduct of a meeting; provided, that such meeting was the one held at the
31st floor conference room of Respondent Sitel on 21 November 2014.
bears
stressing
that
there
has
never
been
any
occasion
It
whereby
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Respondents,
could not claim innocence that his Quality Team was unable to prepare a
transcript of call which is condition precedent by Human Resources
Department in the preparation of Sitel CARE form 1.
Hence, a notice to
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Therefore, the inescapable conclusion is that the real parties who are
grossly negligent are the Respondents themselves who are occupying the
ranks of either manager or senior manager in Respondent Sitel. It is not the
hapless coach (Complainant Pascual) whom Respondents, in cahoots with
one another, tried in futility to be held liable solely and ultimately.
Logic
Such
22.
coach as assessed by his agents. His repeated failure to report Mr. Remions
inactive status to management is a clear indication that Complainant was
not doing his job, or at the very least, he was not doing it properly.
Complainant denies the foregoing allegation.
Complainant was transferred to the Comcast CSG account that his health
drastically deteriorated due to the harsh, hostile, and unfavorable conditions
set for him (Complainant) by Respondents. Also, after Complainant acquired
knowledge from [former] Operations Manager Kuan about the ploy to oust
him at the behest of Respondent Canda (Respondent Sitel Sr. Operations
Manager Comcast CST and Head of Comcast Quality Team). Consequently,
Complainant was constrained to make use of his annual sick leave benefit
credits.
In Dr. Danilo T. Ting and Mrs. Elena Ting VS. Court of Appeals, G.R. No.
146174, July 12, 2006, the Supreme Court said
Indeed, as keenly pointed out by the Executive Labor Arbiter, and
seconded by the appellate court, sickness justifies an employee from being absent
or leaving his work. To demand from private respondent to remain in F/B Liza
V despite the excruciating physical pain that he was suffering on the day of 11
June 1998, would be to ignore that labor is a human capital subject to the frailties
of the physical body.
24.
Respondents, in
companys policies which regulate their employees attendance are not only
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reasonable and just; they also reflect the Respondents compassion and
understanding for their employees plight.
There is no reason for Complainant to be grateful that the penalty of
termination of employment was reconsidered and commuted to 5-day
suspension only.
cold disdain.
26. Respondents like a broken music record of the old days incessantly
pressed on their allegation that former Operations Manager Glenn Kuan [who
was hired by Respondent Sitel on 15 June 2014, but for unknown reason
suddenly stopped to report for work commencing on 1 November 2014]
allegedly instructed Complainant to refer the alleged violation of Comcast
Zero Tolerance Policy by Diosdado Remion and seek assistance from the
Human Resources Department and the Quality Team are nothing but
hearsay, uncorroborated, and untrustworthy. It deserves scant consideration
because Respondents are unable to proffer any evidentiary support of this
alleged instruction of Kuan.
Indeed, the production or suppression of the following documents by
Respondents open the avenues for speculations and suspicions:
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on
13
November
2014.
The
alleged
December
2014
by
Respondent
Reyes
[marked
Annex
in
allegedly hand
hereof.
It is here that the following, the teaching from De Leon vs. Juyco, [G.R. No. L46153, June 5, 1942], citing I Wigmore on Evidence, sec. 277, pp. 566-568,
finds relevancy, viz:
"A party's falsehood or other fraud in the preparation and presentation of his
cause, his fabrication or suspension of evidence by bribery or spoliation, and
all similar conduct, is receivable against him as an indication of his
consciousness that his case is weak or unfounded, and from that
consciousness may be inferred the fact itself of the cause's lack of truth and
merit."
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ARVIN A. PASCUAL
Complainant
Republic of the Philippines)
: s.s
Quezon City
)
VERIFICATION
I, Complainant in the instant case, under oath, depose and say:
1. That I have caused the preparation of the foregoing Reply to
Respondents position paper ;
2. That I have read and understood the contents thereof; and
3. That the allegations therein are correct and true to the best of my
own knowledge and belief and based on authentic records.
ARVIN A. PASCUAL
Complainant/Affiant
____________________
Administering Officer
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Copy furnished:
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