Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VII
Cebu City

JESSON R. TALABA,
Complainant,

-versus- NLRC RAB-VII 11-2379-16

SOLAR INDUSTRIES, INC., and

MR. ANDREW JOHN D. CHOI,
Respondents.
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POSITION PAPER

RESPONDENTS, by the undersigned counsel, unto this Honorable Commission, most

respectfully submit this Position Paper, to wit:

STATEMENT OF FACTS

Complainant is of legal age, single, and a resident of Purok Sili, Cambaro, Mandaue City.

Respondent Solar Industries is a business entity duly organized and existing under and by

virtue of the laws of the Republic of the Philippines with office located at 280 Capistrano del

Pilar Street, Cagayan de Oro City. Individual respondent Andrew John D. Choi is the General

Manager of respondent Solar.

Respondent Solar is engaged in the business of marketing bags and luggages. It operates

outlets in various malls in the Visayas and Mindanao and employs a workforce of about 20

employees.

Complainant was hired by respondent Solar sometime in March 2014 as Promodiser and

assigned at Super Metro, Mandaue City.

Complainant was paid salary in accordance with the minimum wage requirement, which

is P353.00 a day. Precisely, in his complaint, he did not claim underpayment of wages.

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 In addition, complainant was paid other benefits mandated by law such as 13th month

pay, overtime pay, holiday pay and service incentive leave with pay. For ready reference,

machine copy of the pay slips of complainants are hereto attached and marked as Annex “1” to

“1-m” and the summary of payments of other benefits and legal deductions from his salary like

SSS, Pag-ibig and Philhealth hereto attached and marked as Annex “2” to “2-a”.

The payroll of respondent Solar is prepared at its main office in Cagayan de Oro City.

The amount of salary and other benefits due to the complainant during a particular payroll period

is deposited in his ATM account, BDO 6018539078671280.

Complainant received the payment of his salary and other benefits due him. In fact, in his

complaint, he has no claim for non-payment of wages.

On June 24, 2016, respondent informed complainant that he will be temporarily assigned

to Gaisano Capital Mactan in Lapulapu City for a period of three (3) months from July 5, 2016 to

October 5, 2016. He was given a copy of the introduction letter signed by Ms. Ellery Ann Uy-

Choi addressed to the Personnel Manager of Gaisano Capital Mactan, machine copy of which is

hereto attached and marked as Annex “3”.

Incidentally, on July 5, 2016, complainant did not report to the Gaisano Capital Mactan.

He did not notify or ask permission from his Coordinator/Supervisor that he would be absent

from work and the reason therefor.

On July 10, 2016, after five (5) days of complainant’s absence from work without any

communication, his Coordinator/Supervisor, Jennifer Jean S. Asuncion submitted an Incident

Report, photocopy of which is hereto attached and marked as Annex “4”.

Sometime in August 2016, respondents were surprised to learn that complainant filed a

complaint before this Arbitral Branch for illegal dismissal, illegal deduction, overtime pay,

holiday pay, service incentive leave with pay, separation pay, damages, and attorney’s fees.

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 ISSUES

1. Whether or not complainant was illegally dismissed?

2. Whether or not there is illegal deduction in the instant case?

3. Whether or not complainant is entitled to his claims for overtime pay, holiday pay,

service incentive leave with pay, separation pay, and damages?

ARGUMENT/DISCUSSION

On the first issue.

It is respectfully submitted that there is no illegal dismissal in the instant case.

Complainant simply refused to report to his new assignment.

The transfer of assignment of complainant from Super Metro in Mandaue City to Gaisano

Capital Mactan in Lapulapu City is a valid exercise of management prerogative. It does not

affect the payment of salary and other benefits, the status of employment and security of tenure

of complainant. It was not intended to impose undue hardship on the part of complainant. It was

resorted to in the exigency of the business.

In one case, the Supreme Court held:

“The employer has the right to regulate, according to its discretion and
best judgment, all aspect of employment, including work assignment, working
methods, processes to be followed, working regulations, transfer of employees,
work supervision, lay-off of workers and discipline, dismissal and recall of
workers.” (Artifico vs. National Labor Relations Commission, 625 SCRA 435)

In another case, the Supreme Court ruled:

“Jurisprudence recognizes the exercise of management prerogatives –

labor laws also discourage interference with an employer’s judgment in the
conduct of its business.” (Endico vs Quantum Foods Distribution Center, 577
SCRA299)

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 Other than the bare assertion of complainant that he was dismissed, there is no evidence

to support such allegation. In one case, the Supreme Court held:

“It is a basic rule in evidence that each party must prove his affirmative
allegations, since the burden of evidence lies with a party who asserts an
affirmative allegation, the plaintiff or complainant has to prove his affirmative
allegations in the complaint and the defendant or respondent has to prove his
affirmative allegations in his affirmative defense or counterclaims.” (Aklan
Electric Cooperatives, Inc. vs. NLRC, G. R. No. 121939, January 25, 2000)

While it is true that in termination cases, the burden of proof rests on the employer, the

same does not apply in the case at bar considering that respondents maintained that there was no

dismissal. The burden is shifted to the complainant who alleged that he was dismissed.

On the second issue.

There is no illegal deduction in the instant case.

As shown in the pay slips of complainants (Annex “1” to “1-m”) and the summary of

payments of other benefits and legal deductions, the only deductions made by respondents from

the salary of complainant are for SSS, Pag-ibig and Philhealth (Annex “2” to “2-a”).

On the third issue.

Complainant is not entitled to his money claims.

With respect to the claims for overtime pay, holiday pay, and service incentive leave, the

pay slips of complainants (Annex “1” to “1-m”) and the summary of payments of other benefits

and legal deductions from his salary (Annex “2” to “2-a”) would readily show that said benefits

were granted by respondents and received by complainants.

On the claim for payment of separation pay, it is applicable only if the employee is

terminated without any fault attributable to him. This is the pronouncement of the Supreme

Court, to wit:

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 “The right of an employee to demand for separation pay is always
premised on the fact that the employee was illegally terminated” (Jo Cinema
Corporation vs. Abellana, 360 SCRA 142).

In the present case, complainant was not dismissed from work. Hence, the claim for

separation pay is without any legal basis.

Regarding the claim for damages, the Supreme Court ruled:

“Moral damages are recoverable where the dismissal of the employee

was attended by bad faith or fraud, or constituted an act oppressive to labor or
was done in a manner contrary to morals, good customs or public policy.”
(Zamboanga City Electric Cooperative, Inc. vs. Buat, 243 SCRA 47)

The conditions for the grant of damages are completely wanting in the instant case.

PRAYER

WHEREFORE, premises considered, respondents most respectfully prayed of this

Honorable Commission that the instant complaint be DISMISSED for utter lack of merit.

March 17, 2017, Cebu City, Philippines.

PRINCESS DIANA WINDSOR

Counsel for Respondents
Corner Logarta-Jereza Sts., Cebu City
IBP Lifetime No. 011111
PTR No. CEB1173852, 1/3/17, Cebu City
MCLE Compliance V-0015013, 4/14/19
Roll No. 29953
Telefax: (032) 2536262
Mobile Phone: 09176227772
Email: madalum1953@gmail.com

Copy furnished:

Mr. Jesson Talaba

Purok Sili, Cambaro
Mandaue City
6014 Cebu Province

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 VERIFICATION

I, ANDREW JOHN D. CHOI, of legal age, married, and with office address at 280
Capistrano del Pilar Street, Cagayan de Oro City, after having been duly sworn to in accordance
with law, depose and state:

1. That I am one of the respondents in the above-entitled case;

2. That I have caused the preparation and filing of the foregoing Position Paper;
and

3. That I have read the contents thereof and the allegations therein are true and
correct to my own personal knowledge and based on authentic records and
documents.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ______ day of

March 2017 at Cebu City, Philippines.

ANDREW JOHN D. CHOI

Affiant

SUBSCRIBED AND SWORN to before me this _______ day of March 2017 at Cebu
City, Philippines. Affiant exhibited to me his Driver’s License bearing number K02-96-067061
as competent proof of his identity.

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2017.