Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR AND RELATIONS COMMISSION
Region IV
Calamba City, Laguna

JUMAR BUSAING,
Complainant,

-versus- RAB-IV-06-009-16-R

CLAYTON INDUSTRIAL Labor Arbiter Renell Joseph

CORPORATION, Dela Cruz
Respondent.

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

POSITION PAPER FOR RESPONDENT

Respondent CLAYTON INDUSTRIAL CORPORATIONx(the

Company), by counsel, respectfully submits its Position Paper for
the consideration of this Honorable Office, and in support thereof,
states:

I.

THE CASE

1.1 This is a case against the Company for alleged unfair

labor practices, illegal dismissal, and payment of attorneys fees, with
prayer for reinstatement with full backwages and thirteenth month
pay.

1.2 The Company respectfully submits that Jumar Busaing

(the Complainant) was lawfully terminated from work for just and
valid cause after compliance with substantial and procedural due
process by reason of his gross and habitual neglect in his duties to the
detriment of the Company and in violation of Company Rules and
Regulations.Thus, Complainants claims should be dismissed
outright for utter lack of merit.
 2

II.

THE PARTIES

2.1 Complainant JUMAR BUSAINGis of legal age, Filipino,

and resides at 802 Kamagong Street, Napico Manggahan, Pasig City.

2.2 Respondent CLAYTON INDUSTRIAL CORPORATION

is a domestic corporation duly organized and existing under and in
accordance with the laws of the Republic of the Philippines, with
principal office address at Cabrera Road, Hapay na Mangga Brgy.
Dolores, Taytay, Rizal. It may be served with notices, orders, and
other legal processes of this Honorable Labor Arbiter through the
undersigned counsel.

III.

STATEMENT OF FACTS AND

ANTECEDENT PROCEEDINGS

3.1 Complainant requested for a conciliation with the

Company before the Department of Labor and Employment, Rizal
Provincial Office.

3.2 During the scheduled conference, Complainant alleged

that he was illegally dismissed by the Company and insisted on
reinstatement.

3.3 When asked to explain the alleged illegal dismissal,

Complainant insisted that the Company simply dismissed him for
being a union member. On the other hand, the Company maintained
that the Complainant was terminated due to the latters violation of
the Company policies.

3.4 After several conferences held at 2nd Flr. J & P Building,

Lot 3, Block 17, V.V. Soliven Avenue I, San Isidro, Cainta, Rizal, the
parties failed to settle amicably.
 3

3.5 Thus, on 10 June 2016, Complainant formally filed a

complaint for illegal dismissal before National Labor Relations
Commission, Regional Arbitration Branch No. IV in Calamba City.

3.6 During the mandatory conference on 28 July 2016 before

Labor Arbiter Renell Joseph Dela Cruz, Complainant refused to settle
and insisted on reinstatement. On the other hand, the Company
insisted that Complainant was terminated with just causes and was
afforded due process.

3.7 Due to the failure of the parties to settle amicably, this

Honorable Office required the parties to simultaneously submit their
respective position papers on 23 August 2016.

IV.

ISSUES

A.

WHETHER OR NOT COMPLAINANT

WAS ILLEGALLY DISMISSED;

B.

WHETHER OR NOT RESPONDENTIS

GUILTY OF COMMITTING UNFAIR
LABOR PRACTICES IN DISMISSING
COMPLAINANT;

C.

WHETHER OR NOT COMPLAINANT IS

ENTITLED TO REINSTATEMENT AND
BACKWAGES; and

D.

WHETHER OR NOT COMPLAINANT IS

ENTITLED TO HIS CLAIM OF
 4

THIRTEENTH MONTH PAY AND

ATTORNEYS FEES.

DISCUSSION/ARGUMENTS

A.

COMPLAINANT WAS LEGALLY

DISMISSED.

5.1 The law in protecting the rights of the laborer authorizes

neither oppression nor self-destruction of the employer. 1 While the
Constitution is committed to the policy of social justice and the
protection of the working class, it should not be supposed that every
labor dispute will be automatically decided in favor of labor.
Management also has its own rights, which as such are entitled to
respect and enforcement in the interest of simple fair play. Out of its
concern for those with lesser privileges in life, the Supreme Court has
inclined more often than not toward the worker and upheld his cause
in his conflicts with the employer. Such favoritism, however, has not
blinded the Court to rule that justice in every case for the deserving,
to be dispensed in the light of the established facts and applicable law
and doctrine.2

5.2 In his Complaint, Complainant alleged he was illegally

dismissed from respondent Company and that he is entitled to
different monetary claims. He further alleged he is entitled to
reinstatement and payment of backwages and allowances.

5.3 These allegations are bereft of merit. Complainant has no

cause of action against the respondent.

Complainant was dismissed for

just cause.
--------------------------------------

1
Bondoc v. National Labor Relations Commission, 342 Phil. 250, 262 (1997).
2
Mercury Drug Corporation v. National Labor Relations Commission, G.R. No. 75662, 15
September 1969; Filipro Inc. v. National Labor Relations Commission, G.R. No. 70546, 16
October 1986.
 5

5.4 Respondent Company has the right to dismiss its erring

employees if only as a measure of self-protection against acts inimical
to its interest.3 Like any other employer, respondent Company
cannot be compelled to continue with the employment of a person
who admittedly was guilty of malfeasance and whose continuance in
the service of the latter is patently inimical to its interest.4

20 JUNE 2015 INCIDENT

5.5 On 20 June 2015, the guard on duty, Gantalao and
Domingo, as well as production line supervisor, Arcelita Torcino
reported that complainant reported to work intoxicated. A Notice to
Explain was given to the complainant and in his explanation, he
admitted coming to work intoxicated. Thus, the Complainant was
suspended for fifteen working days from work from 24 June 2016 up
to 10 July 2015 for coming to work under the influence of alcohol
which is in violation of the Company Rules and Regulations.

A copy of the abovementioned Reports and Memorandum is

attached hereto and made an integral part hereof as Annexes 1 to
3.

11 JULY 2015 INCIDENT

5.6 A Notice to Explain was given to the Complainant on 11
July 2015, which states:

It had been brought to our attention that you

logged in for work at 4:49PM on 20 June 2015, but
immediately left the company premises. You
returned to the company premises at 9:00PM to
sleep inside the company premises during work
hours, while under the influence of alcohol.

A copy of the above Notice to Explain is attached hereto and

made an integral part hereof as Annex 4.

5.7 On 14 July 2015, Complainant admitted sleeping inside

the company premises during work hours while he was under the
3
Reyes v. Ministry of Labor, G.R. No. 48705, 09 February 1989; Philippine Long Distance
Telephone Company v. National Labor Relations Commission, G.R. No. L-74562, July 31,
1987.
4
Lopez v. National Labor Relations Commission, G.R. No. 167385, 13 December 2005,
citing GT Printers v. National Labor Relations Commission, G.R. No. 100749, 24 April
1992.
 6

influence of alcohol. Despite complainants admission, respondent

company was simply reprimanded of his actions as stated in the
Memorandum dated 24 July 2015.

A copy of the above Explanation and Memorandum of Decision is

attached hereto and made an integral part hereof as Annexes 5and
6, respectively.

06 APRIL 2016 INCIDENT

5.8 On 07 April 2016, a Show Cause Memorandum was

issued to complainant asking him to explain why he reported for
work while under the influence of alcohol on 06 April 2016, in
violation of Article 7.2 of the Company Rules and Regulations.

A copy of the above Show Cause Memorandumis attached hereto

and made an integral part hereof as Annex 7.

5.9 On the same day, complainant submitted his written

explanation admitting that he was drunk when he reported to work.

A copy of the above Explanation is attached hereto and made an

integral part hereof as Annex 8.

08 APRIL 2016 INCIDENT

5.10 On 08 April 2016, a Show Cause Memorandum was

issued to complainant for false or malicious statement/accusation
made against a company official, which was in violation of Article 6.4
of the Company Rules and Regulations. In his explanation, he
admitted that he told Mr. Eduardo Barretto, siguro kay maam
malaki and binigay sayo.

A copy of the above Show Cause Memorandum and Explanation is

attached hereto and made an integral part hereof as Annexes 9and
10, respectively.

5.11 Complainant, in the said incident was accusing Ms.

Leticia Tan Chua, executive vice president of the respondent
Company, of giving Mr. Eduardo Barretto money to purchase a
motorcycle.
 7

5.12 After all these repeated gross infractions of Company

Rules and Regulations, the Company decided to finally terminate the
Complainant for gross negligence and serious misconduct in its
Notice of Termination dated 27 April 2016.

A copy of the above Notice of Termination is attached hereto and

made an integral part hereof as Annex 11.

5.13 In Valiao vs. CA5, the Supreme Court defined gross

negligence as want of care in the performance of ones duties and
habitual neglect as repeated failure to perform ones duties for a
period of time, depending upon the circumstances. On the other
hand, misconduct is defined as 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. 6These are not overly technical terms,
which, in the first place, are expressly sanctioned by the Labor Code
of the Philippines,7to wit:

ART. 282. Termination by employer. - An

employer may terminate an employment for
any of the following causes:

(a) Serious misconduct or willful

disobedience by the employee of the law
order of his employer or representative in
connection with his work;

(b) Gross and habitual neglect by the

employee of his duties;

x x x

5.14 Complainants gross and habitual negligence in his

duties, well as his serious misconduct as aMachine Maintenance is
crystal clear. How do you expect a Machine Maintenance to work
properly if he is either drunk or sleeping during work hours. As a
factory, the machines are the soul of respondent Company. Thus, the
5
G.R. No. 146621, July 30, 2004.
6
NLMK-OLALIA-KMU and Helen Valenzuela v. Keihin Philippines Corporation, G.R.
No. 171115, August 9, 2010 citing Austria v. National Labor Relations Commission, 371
Phil. 340, 360 (1999).
7
Mansion Printing Center Vs. Bitara, G.R. No. 168120, January 25, 2012.
 8

penalty of dismissal from employment is commensurate to

complainants past infractions and offenses.

5.15 According to the records, complainant was involved in

four (4) serious incidents from the years 2015 2016. These incidents
violated the Company Rules and Regulations and have a
corresponding penalty depending on the offense involved.

5.16 Considering the number of offenses committed by

complainant, the totality of infractions doctrine is applicable.

5.17 The Supreme Court expounded on the principle of

totality of infractions in Merin v. National Labor Relations
Commission:8Thus:

The totality of infractions or the number of

violations committed during the period of
employment shall be considered in
determining the penalty to be imposed upon
an erring employee. The offenses committed
by petitioner should not be taken singly and
separately. Fitness for continued
employment cannot be compartmentalized
into tight little cubicles of aspects of
character, conduct and ability separate and
independent of each other. While it may be
true that petitioner was penalized for his
previous infractions, this does not and should
not mean that his employment record would
be wiped clean of his infractions. After all,
the record of an employee is a relevant
consideration in determining the penalty
that should be meted out since an
employee's past misconduct and present
behavior must be taken together in
determining the proper imposable
penalty[.]Despite the sanctions imposed upon
petitioner, he continued to commit
misconduct and exhibit undesirable behavior
on board. Indeed, the employer cannot be
compelled to retain a misbehaving employee,

8
G.R. No. 171790, October 17, 2008.
 9

or one who is guilty of acts inimical to its

interests. (Emphasis supplied).

5.18 While a penalty in the form of suspension had already

been imposed on Complainantdue to reporting to work under the
influence of alcohol sometime in June 2015, the principle of totality
of infractions sanctions the act of respondent Company of
considering such previous infractions in decreeing dismissal as the
proper penalty for his offenses incurred afterwards. Complainants
repeated violations of the Company Rules are a clear manifestation of
the gross and habitual neglect of his duties that are adverse to
respondent Companys interest.

5.19 In fact, complainants final offense before his termination,

that involving the same offense of reporting for work under the
influence of alcohol, is an offense which, if done for the second time,
can be a ground for his termination.

5.20 As such, this Honorable Office cannot simply tolerate the

injustice to employers if only to protect the welfare of undeserving
employees9. In the words of then Associate Justice Ma. Alicia Austria-
Martinez in Philippine Long Distance and Telephone Company, Inc.
v. Balbastro:10

While it is true that compassion and human

consideration should guide the disposition of
cases involving termination of employment
since it affects one's source or means of
livelihood, it should not be overlooked that
the benefits accorded to labor do not include
compelling an employer to retain the
services of an employee who has been
shown to be a gross liability to the employer.
The law in protecting the rights of the
employees authorizes neither oppression nor
self-destruction of the employer. It should be
made clear that when the law tilts the scale of
justice in favor of labor, it is but a recognition
of the inherent economic inequality between
labor and management. The intent is to
balance the scale of justice; to put the two
parties on relatively equal positions. There
9
Realda vs. New Age Graphics, Inc., G.R. No. 192190, April 25, 2012.
G.R. No. 157202, 28 March 2007.
10
 10

may be cases where the circumstances

warrant favoring labor over the interests of
management but never should the scale be so
tilted if the result is an injustice to the
employer. Justitia nemini neganda est (Justice is
to be denied to none). (Emphasis supplied).

5.21 In view of the foregoing, Complainants repeated

infractions of company rules manifest gross and habitual neglect of
duty and serious misconducted that merited the imposition of the
supreme penalty of dismissal from work.

Complainant was accorded due

process
------------------------------------

5.22 Procedural due process entails compliance with the two-

notice rule in dismissing an employee, to wit: (1) the employer must
inform the employee of the specific acts or omissions for which his
dismissal is sought; and (2) after the employee has been given the
opportunity to be heard, the employer must inform him of the
decision to terminate his employment.11

5.23 Apart from the existence of a just cause, respondent

Company likewise complied with standards of procedural due
process, as shown by giving at least two (2) Memorandums which it
sent to complainant.

5.23.1The first notice gave complainant ample

opportunity to be heard and answer the charges
against him.

5.23.2The second notice informed complainant of

respondent Companys decision to terminate his
employment upon due consideration of all the
circumstances, grounds have been established to
justify his termination.

5.24 Considering the aforementioned compliance with the

statutory and jurisprudential requirements in effecting a valid
11
Mansion Printing Center vs. Bitara, G.R. No. 168120 January 25, 2012.
 11

dismissal, respondent Company has validly exercised its

management prerogative in dismissing complainant. The existence
of a just cause and respondent Companys observance of due process
requirements strongly temper complainants insistence on his claim
for illegal dismissal.12

B.

COMPLAINANT HAS NO BASIS IN

CHARGING RESPONDENT WITH ANY
OF THE UNFAIR LABOR PRACTICES
FOUND IN ARTICLE 248 OF THE LABOR
CODE

5.25 Complainant, aside from being a union member of

respondent Companys Union, has no basis in charging respondent
with the commission of any unfair labor practice found in Article 248
of the Labor Code.

5.26 The case of Culili vs. Eastern Telecommunications

Philippines, Inc.13 is enlightening on the matter:

In the past, we have ruled that unfair labor

practice refers to acts that violate the workers'
right to organize. The prohibited acts are
related to the workers' right to self-
organization and to the observance of a CBA.
We have likewise declared that there should
be no dispute that all the prohibited acts
constituting unfair labor practice in essence
relate to the workers' right to self-
organization. Thus, an employer may only
be held liable for unfair labor practice if it
can be shown that his acts affect in whatever
manner the right of his employees to self-
organize.(Emphasis supplied).

5.27 The facts and evidence on record clearly show that in no

instance did respondent commit any act that has affected
complainants right to self-organize. As complainant was dismissed
12
MGG Marine Services Inc. v. National Labor Relations Commission, G.R. No. 114313, 29
July 1996.
13
G.R. No. 165381, February 9, 2011.
 12

due to just causes, specifically due to his numerous violations of

Company Rules and Regulations, there is no factual or legal support
for any charge of unfair labor practices to be imputed against the
respondent.

C.

COMPLAINANT IS NOT ENTITLED TO

REINSTATEMENT AND PAYMENT OF
BACKWAGES.

5.28 From the foregoing facts, complainant is not entitled to

reinstatement and backwages because he was validly dismissed from
respondent Company. To rule otherwise would unjustly reward
complainant at the expense of respondent Company.

5.29 Complainants prayer for backwages, which is granted

only when an employee was illegally dismissed, is completely
unavailing. Backwages are granted on grounds of equity for
earnings which a worker or employee has lost due to illegal
dismissal. Thus, there can be no award of backwages where an
employee is validly dismissed, as in this case, as the employee would
be unjustly enriching himself at the expense of the employer.

5.30 The claim for reinstatement must likewise fall. As

respondents have sufficiently established the legality and necessity of
complainants dismissal, which was the result of its statutory
prerogative to determine who to hire and deny employment, there is
no occasion for reinstatement, which finds application only where
there was illegal dismissal.

5.31 Complainants claims for backwages and reinstatement

deserve scant consideration. These two reliefs are only given to an
illegally dismissed employee and are incompatible with a finding of
guilt.14

D.

14
Labor Code of the Philippines, Article 279; Industrial Timber Corporation-Stanply
Operations v. National Labor Relations Commission, G.R. No. 112069, 14 February 1996;
Colgate Palmolive Philippines v. Ople, G.R. No. 73681, 30 June 1988; Santos v. National
Labor Relations Commission, G.R. No. 76721, 21 September 1987.
 13

COMPLAINANT IS NOT ENTITLED TO

THIRTEENTH MONTH PAY INCLUDING
ATTORNEYS FEES.

5.32 The rest of complainants monetary claims are without

factual or legal basis. Complainant did not suffer actual damages as
he was not illegally dismissed.

5.33 Third, complainant is not entitled to attorneys fees in

view of the good faith of respondent in terminating the complainant.
In the case of Moreno v. San Sebastian College-Recoletos, Manila,
the Supreme Court reiterated hornbook jurisprudence that attorneys
fees may only be awarded when the dismissal was attended by bad
faith.

It is a well- settled principle that even if a

claimant is compelled to litigate with third
persons or to incur expenses to protect the
claimants rights, attorneys fees may still not
be awarded where no sufficient showing of
bad faith could be reflected in a partys
persistence in a case other than an erroneous
conviction of the righteousness of his cause.

5.34 Furthermore, Article 2208 of the Civil Code enumerates

the cases in which attorneys fees may be awarded, none of which are
applicable in the instant case. Thus:

Art. 2208. In the absence of stipulation,

attorneys fees and expenses of litigation other
than judicial costs, cannot be recovered,
except:

1. When exemplary damages are awarded;

2. When the defendants act or omission has
compelled the plaintiff to litigate with third
persons or to incur expenses to protect his
interest;
3. In criminal cases or malicious prosecution
against the plaintiff;
4. In case of a clearly unfounded civil action or
proceeding against the plaintiff;
 14

5. Where the defendant acted in gross and

evident bad faith in refusing to satisfy the
plaintiffs plainly valid, just and
demandable claim;
6. In actions for legal support;
7. In actions for the recovery of wages of
household helpers, laborers and skilled
workers;
8. In actions for indemnity under workmens
compensation and employer liability laws;
9. In a separate civil action to recover civil
liability arising from a crime;
10. When at least double judicial cost are
awarded; and
11. In any other case where the court deems it
just and equitable that attorneys fees and
expenses of litigation should be recovered.

5.35 Correlatively, Article 111 of the Labor Code provides:

ART. 111. Attorneys fees.

(a) In cases of unlawful withholding of

wages the culpable party may be assessed
attorneys fees equivalent to ten percent of the
amount of wages recovered.

(b) It shall be unlawful for any person to

demand or accept, in any judicial or
administrative proceedings for the recovery of
the wages, attorneys fees, which exceed ten
percent of the amount of wages recovered.

5.36 Nowhere within the ambit of the above legal provisions

can respondent be held liable. Accordingly, an award for attorneys
fees would be grossly improper and without justification.

VI.

RESERVATION
 15

6.1 The Company respectfully reserves the right to present

additional documentary and testimonial evidence in the course of
this case. The Company likewise respectfully reserves the right to file
a Supplemental Position Paper and/or Reply and other allied
pleadings.

PRAYER

WHEREFORE, CLAYTON INDUSTRIAL CORPORATION

respectfully prays that after due consideration, the Honorable
Labor Arbiter finds merit in the position of the Company and issue
an Order dismissing the charge of illegal dismissal against it.

The Company prays for such further or other relief as may be

deemed just or equitable.

Pasig City for the City of Calamba,

23 August 2016.

MEDIALDEA ATA BELLO &SUAREZ

Counsel for Clayton Industrial Corporation
17th Floor, The Taipan Place
F. Ortigas Jr. Road, Ortigas Center
Pasig City
Tel. No. 635-4276 to 83
mailbox@mabgslaw.com.ph

By:

RENATO Q. BELLO
Roll of Attorneys No. 31182
PTR No. 1501091; 1-28-2016; Pasig City
IBP No. 1018603; 1-06-2016; Quezon City
MCLE Compliance No. V-0012744; 12-15-15

KIM RAISA O. UY
Roll of Attorneys No. 61803
PTR No. 1464769; 1-21-2016; Pasig City
IBP No. 011767; Lifetime Member; Aurora
MCLE Compliance No. V0014712; 2-29-2016
 16

Copy Furnished:

JUMAR BUSAING
Complainant
802 Kamagong Street
Napico, Manggahan
Pasig City
 17

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, ALFONSO S. CHUA, of legal age, Filipino, with office address at

Cabrera Road, Hapay na Mangga Brgy. Dolores, Taytay, Rizal, state under
oath:

1. I am the President and duly authorized representative of

Clayton Industrial Corporation, the respondent in the above-captioned
case;

2. I have caused the preparation and filing of the foregoing

Position Paper;

3. I have read and understood the contents of the foregoing

Position Paper and I attest that the same are true and correct out of my
own personal knowledge and based on authentic records in my
possession; and

4. I further certify that:

4.1 I have not commenced any other action or claim

involving the same issues in any court, the Supreme Court, the
Court of Appeals or any division thereof, or any other tribunal or
agency.

4.2 To the best of my knowledge, no such other action or

claim is pending in any court, the Supreme Court, the Court of
Appeals or any division thereof, or any other tribunal or agency.

4.3 If I should hereafter learn that the same or similar action

or claim has been filed or is pending in any court, the Supreme
Court, the Court of Appeals or any division thereof, or any other
tribunal or agency, I undertake to report said fact to this Honorable
Court within five (5) days from notice.

IN WITNESS WHEREOF, I have hereunto set my hand this

______________________ in Pasig City.

ALFONSO S. CHUA
 18

SUBSCRIBED AND SWORN TO BEFORE ME this

____________________ in Pasig City, affiant exhibiting to me his
Competent Evidence of Identity in the form of ________________ issued in
_______________ and expiring on _______________.

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2016.