Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

ALMIRA BABASA FRANCISCO,

Complainant;

-versus- NLRC NCR CASE NO. 10-15138-12

PACIFIC RAYON MANUFACTURING INC.

ARTHUR S. TIU
Respondents.
x--------------------------------------------------------x

REJOINDER

RESPONDENTS, through counsel, unto the Honorable Office, most

respectfully submit this POSITION PAPER, and state:

“This Court is not unmindful of the rule that in cases of illegal

dismissal, the employer bears the burden of proof to prove that the
termination was for a valid or authorized cause.” But “before the
(employer) must bear the burden of proving that the dismissal was
legal, (the employees) must FIRST establish by substantial
evidence” that indeed they were dismissed. “If there is no
dismissal, then there can be no question as to the legality or
illegality thereof.” (Exodus International vs. Biscocho, G.R. No.
166109, February 23, 2011; citing the case of Ledesma, Jr. v. NLRC,
537 SCRA 358, 370.)

Respondent categorically DENIES that it had dismissed the

complainant. It was only complainant’s erroneous conclusion that he was
dismissed. Respondent hereby reiterates its unconditional offer for the
complainant to report back to work.

As stated in the complaint, this is a case for “ACTUAL” dismissal

filed by the complainant herein. In her Position Paper and Reply, the
complainant insists that it had been “actually” dismissed by the respondent.

Thus:
1
 Subsequently complainant was required to tender her
resignation. She was required to affix his signature on a
document which purports to be a resignation letter.
Complainant refused.

This self-serving claim is a complete FABRICATION – made by a

person who is guilty of STEALING MONEY from her co-employees. The
complainant is LYING under oath when she stated that she was allegedly
required to sign a resignation letter by the respondents.

To reiterate, what in fact happened is that sometime in 2011, it was

found out that the complainant STOLE money totaling P220,000.00 from
the employees’ cooperative and insurance plan. In spite of these horrendous
acts, she was permitted to continue her work with the company and to return
the amount she stole through monthly installments.

Legally speaking, the respondent has every right to dismiss the

complainant from work after it found out that the said complainant stole
amount of P150,000.00 representing the employees’ contribution to the
cooperative and P70,000.00 representing the monthly contributions made by
employees for their insurance plans with Philippine American Life and
General Insurance Co.

The complainant even PERSONALLY ADMITTED to respondent Tiu

that she committed such illegal acts. However, in view of the generosity and
kindness of the respondent, the complainant was NOT dismissed from work
in order to give her the chance to pay back what she stole. Thus, the
complainant was NEVER dismissed but REMAINED under the employment
of the respondent.

However, on March 3, 2012, after paying only the amount of

P8,500.00, the complainant suddenly stopped reporting from work and was
nowhere to be found. As the complainant still owed the respondent and her
co-employees the amount of about P211,500.00 representing the balance the
money she stole, the respondent tried DESPERATELY to know her
whereabouts but to no avail.

Accordingly, the complainant was never dismissed from work. It was

the complainant who ABANDONED her employment after she
ABSCONDED in order to evade paying the amount she stole from her co-
employees. To reiterate, the respondent did not dismiss the complainant
neither does it bars the complainant from returning to work so as to give the
complainant all the chance she needs to repay all the money she stole from
her co-employees.

Then, on November 9, 2012, or AFTER THE LAPSE OF EIGHT (8)

MONTHS, she filed the present case for alleged illegal dismissal against the
respondent.
2
 To prove that the complainant actually STOLE that said amounts, an
AFFIDAVIT was voluntarily executed by Editha P. Alcantara, with the
conformity of Editha C. Santos, Anselmo C. Lonto, Javier G, Galang,
Almira B. Francisco, Ofelia M. Jampil, Maria D. Salazar and Jocelyn S.
Sario, stating that:

Kami, xxx ay nagpapadala ng aming buwanang hulog

simula July 2008, 2009, 2010 at hanggang buong taon ng
2011, kay ALMIRA B. FRANCISCO, kasamahan namin at
isa sa mga muyembro ng nasabing ahensiya.

Na, sa taong 2008 at 2009 ay naibayad niya ang aming

buwanang hulog na kumpleto. Subalit ng taong 2010, siyam
(9) na buwan niyang HINDI NAIBAYAD ang aming
buwanang hulog at sa taong 2011, labindalawang (12)
buwan o isang buong isang taon niyang hindi naihulog ang
aming buwanang hulog.

Na, dahil sa malaking tiwala naming sa kanya, walang

nakaisp na kumpirmahin kung talagang naihuhulog niya
ang perang ibinibigay namin sa kanya, dahilan para kami
ay magbayad/magmulta sa mga buwang hindi ito nahulugan
at muntik pang mabalewala ang ilang taon naming
pinaghirapan. xxx

Nasusulat sa ibaba ang mga pangalan at lagda ng mga

miyembro at ang kaukulang ibinayad/multa sa The
Philippine American Life and General Insurance Co.;

1. Editha C. Santos Php 10,112.00 (signed)

2. Anselmo C. Lontoc Php 9,000.00(signed)

3. Javier G, Galang Php 8,700.00 (signed)

4. Almira B. Francisco
5. Ofelia M. Jampil Php 10,034.00 (signed)

6. Maria D. Salazar Php 15,559.18 (signed)

7. Editha P. Alcantara Php 8,313.14 (signed)
8. Jocelyn S. Sario Php 8,600.00 (signed)

Kami ay umaapila na bayaran ni ALMIRA B.

FRANCISCO sa halagang nasusulat sa itaas. (Annex 1 of
the Position Paper, emphasis ours.)

These facts are collaborated by the Sinumpaang Salaysay of

Consoladion B. San Diego, SISTER of complainant Almira B. Francisco,
(Annex 2 of Position Paper), wherein she stated under oath that:

3
 Na, xxx 2011, ako ay pinatawag at kinausap ng
aming Boss na si Mr. Arthur tiu sa kadahilanang
pagkadiskubre sa aking kapatid na si ALMIRA B.
FRANCISCO na NAKALUSTAY NG PERA ng mga tao
sa kooperatiba na humigit kumulang sa isandaan at
limampung libong piso (Php 150,000.00). Kanya ring
ipinatawag at kinausap ang aking kapatid na si ALMIRA
B. FRANCISCO at sa harap naming dalawa ay
UMAMIN ANG AKING KAPATID SA KANYANG
NAGAWANG PAGGAMIT NG PERA NG MGA TAO SA
KOOPERATIBA. xxx

Ang aking kapatid din na si ALMIRA B.

FRANCISCO ang naatasang magbayd buwanang hulog
ng mga tao sa The Phil. American Life & Gen. Insurance
Co. Isa sa miyembro si EDITHA P. ALCANTARA, ay
nagbalak mag-loan. Nagulat siya ng malamang may
utang pa siyang hindi nababayaran gayong hindi naman
siya nangungutang sa nasabing ahensiya. Hiningi niya
sa aking kapatid na si ALMIRA B. FRANCISCO ang mga
resibo na pinagbayaran at ibinigay naman niya ito sa
kanya. AT DOON NATUKLASAN NI EDITHA NA
HINDI PALA NAIBAYAD ANG KANILANG
BUWANANG HULOG SA AHENSIYA dahilan kaya
nagkaroon ng malaking interest at ang interest ding iyon
ang naging loan. Ang pangyayaring iyon ay labis ko
pong ikinalungkot.

Na, dahil sa pangyayaring iyon, HINDI NA

PUMASOK sa pabrika ang aking kapatid na si ALMIRA
B. FRANCISCO simula Marso 03, 2012 hanggang sa
kasalukuyan. Xxx (Emphasis ours.)

On the other hand, aside from her BARE ALLEGATIONS that she
was allegedly dismissed by the respondents, the complainant has failed to
show any iota of evidence to prove her claim of illegal dismissal. NONE.

It should be noted that the complainant did NOT ask for

REINSTATEMENT in her complaint but only “separation pay in lieu of
reinstatement”. If indeed “quitting from their respective jobs is farthest
from the complainants’ mind” and that “leaving her job with respondent
company amidst uncertainties of being able to look for another job is
tantamount to suicide.” (page 1 of complainant’s Reply), why would the
complainant NOT want to be REINSTATED to her former position?

The reason is OBVIOUS. The complainant, after ABSCONDING

with amount totaling P220,000.00 which she STOLE from her co-
employees, decided, as an AFTERTHOUGHT, to also try her luck in getting
money from the respondents by claiming that she was illegally dismissed.
4
Of course, she would not want to be reinstated for otherwise, she will be
facing the WRATH of her co-employees from whom she stole P220,000.00.

In the case of EXODUS INTERNATIONAL vs GUILLERMO

BISCOCHO (G.R. No. 166109, February 23, 2011), the Supreme Court
ruled that:

“[T]his Court is not unmindful of the rule that in cases of

illegal dismissal, the employer bears the burden of proof to
prove that the termination was for a valid or authorized cause.”
But “[b]efore the [petitioners] must bear the burden of proving
that the dismissal was legal, [the respondents] must FIRST
establish by substantial evidence” that indeed they were
dismissed. “[I]f there is no dismissal, then there can be no
question as to the legality or illegality thereof.”

xxx The rule is that one who alleges a fact has the
burden of proving it; thus, petitioners were burdened to
prove their allegation that respondents DISMISSED them
from their employment. It must be stressed that the
EVIDENCE to prove this fact must be CLEAR,
POSITIVE AND CONVINCING. The rule that the
employer bears the burden of proof in illegal dismissal
cases finds no application here because the respondents
deny having dismissed the petitioners. (Emphasis ours.)

In other words, the complainant, as employee, must FIRST PROVE

BY SUBSTANTIAL EVIDENCE to the Honorable Office of the fact of his
dismissal. Hence, ABSENT such proof, his complaint for alleged illegal
dismissal CANNOT prosper, pursuant to the ruling by the Supreme Court in
the above cited cases.

In the case at bar, aside from the SELF-SERVING claim that she was
allegedly dismissed, complainant FAILED to show any evidence that such
alleged illegal dismissal actually happened.

Accordingly, “IF THERE IS NO DISMISSAL, THEN THERE CAN

BE NO QUESTION AS TO THE LEGALITY OR ILLEGALITY
THEREOF.” (Ledesma, Jr. v. NLRC, G.R. No. 174585, October 19, 2007,
537 SCRA 358)

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of the

Honorable Office to render judgment in favor of the respondents
DISMISSING the complaint.

Other just and equitable remedies are likewise prayed for.

5
 Quezon City, February 4, 2013.

ATTY. PEARLITO B. CAMPANILLA

Suite B, 2nd floor, Overland Park Building
No. 245 Banawe cor. Quezon Ave., Quezon City.
PTR No. 6308458 02-06-12 QC
IBP No. 888279 02-03-12 Pasig City
L.M. ROLL No. 010564
ROLL No. 37522
MCLE No. III - 0015235

Copy Furnished:

ALRMIRA BABASA FRANCISCO

7F Rivera St., Potrero, Malabon