REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
QUEZON CITY

LABOR ARBITER J. POTENCIANO F. NAPENAS, JR.

CHRISTOPHER MON SANTOS BAUTISTA,

Complainant,

-versus- NLRC NCR Case No. 02-03312-19

L.A. FITNESS, INC. (GOLD’S GYM), MYLENE

MENDOZA DAYRIT and MONNETTE PE
BENITO,
Respondents.
x----------------------------------------------------x

POSITION PAPER
(For the Respondents)

Respondents, L.A. FITNESS, INC. (GOLD’S GYM), MYLENE

MENDOZA DAYRIT and MONNETTE PE BENITO assisted by
undersigned counsel, to this Honorable Office, most respectfully
submits hereunder their Position Paper as follows:

THE PARTIES

1. Complainant Christopher Mon Santos Bautista, is of

legal age and was hired by respondent as a Service Staff performing
utility work initially at respondent’s Gold’s Gym in Marikina. The
complainant may be served with summons and other processes of
this Honorable Office at his given address at Lot 32, Block 12
Sumulong Townhouse, Sumulong Highway, Mayamot, Antipolo City.
The complainant claims he was illegally dismissed (constructively)
and thus prays for separation pay as well as moral and exemplary
damages. However, these claims are all entirely false and without
factual and legal basis.
 2

2. Respondent L.A. Fitness, Inc. (Gold’s Gym) is a

domestic corporation duly organized and existing under the laws of
the Republic of the Philippines, with principal office at No. 82 E.
Rodriguez, Jr. Avenue, Acropolis, 1100 Quezon City. Respondent
operates several gyms located around the metropolis under the name
Gold’s Gym, a fitness brand known worldwide.

2.1. Respondent Mylene Mendoza Dayrit is of

legal age, married and is being sued herein as a nominal
party. However, respondent Ma Elena Dayrit was not
involved nor participated in any of the incidents complained
of.

2.2. Respondent Monnette Pe Benito is also of

legal age, married and is also being sued herein as a
nominal party.

STATEMENT OF FACTS

3. Complainant Christopher Mon Santos Bautista was

hired by respondent as a Service Staff performing utility work at
Gold’s Gym in Marikina City.

4. On 21 May 2018, complainant wrote a letter to the Head

Office of respondent filing an “INDEFINITE LEAVE” with a minimum
of two (2) months and maximum of six (6) months, for complainant’s
back rehabilitation. A copy of complainant’s letter dated 21 May 2018
is attached hereto as Annex “1” and made an integral part hereof.

5. Simultaneously, complainant submitted a Leave

Application which was also filed on 21 May 2018, a copy of which is
attached hereto as Annex “2” and made an integral part hereof.

6. The complainant’s request for indefinite leave for

complainant’s back rehabilitation was approved by respondent.

7. On 20 September 2018, Mr. Jonathan Aviles, the General

Services Manager of respondent, in an e-mail of the same date,
confirmed the telephone conference between him and the
complainant confirming management’s instructions requiring
complainant to return to work on 21 November 2018 (which is the
end of the six months leave from 21 May 2018). A copy of the email
dated 20 September 2018 of Jonathan Aviles is attached hereto as
Annex “3” and made an integral part hereof.
 3

8. On 27 November 2018, Ms. Susan Trinidad, the Club

Manager of Gold’s Gym Katipunan informed Mr. Jonathan Avilez in an
email that complainant did not report for work on 21 November 2018
and that complainant’s failure to report back to work is affecting the
operations of the Club. A copy of the email dated 27 November
2018 of Susan Trinidad to Jonathan Aviles is attached hereto as
Annex “4” and made an integral part hereof.

9. Despite the instructions of respondent for complainant to

report back to work on 21 November 2018, the complainant simply
refused and failed to report for work as instructed.

10. Later on, instead of reporting for work, the complainant

went to the Head Office of respondent and filed a letter dated 19
November 2018 from the Legal Advocates for Worker’s Interest
(“LAWIN”). The letter from LAWIN states in full:

“THE MANAGEMENT
L.A.FITNESS INC. (GOLD’S GYM)
No. 82 E. Rodriguez, Jr. Avenue, Acropolis, Quezon City

SIR/MADAM:

Warm Greetings!

This is in connection with the employment with your company

of our client, Christopher Mon Santos Bautista. A perusal of his
Medical Certificates will plainly reveal that his continued
employment with your company is already prejudicial to his
health. Copies of his said Medical Certificates are hereto
attached and made integral parts hereo9f for ready reference.
The basis of this letter is Articles 284 of the Labor Code, to wit:

“Article 284. Disease as ground for termination.

An employer may terminate the services of an
employee who has been found to be suffering from
any disease and whose continued employment is
prohibited by law or is prejudicial to his health as well
as to the health of his co-employees: Provided, That
he is paid separation pay equivalent to at least
onw(1) month salary or to one-half (1/2) month
salary for every year of service, whichever is greater,
a fraction of at least six (6) months being considered
as on2 (1) whole year.”
 4

In view thereof, We respectfully request that our client,

Christopher Mon Santos Bautista, after due validation, among
others, be accordingly paid his separation pay in accordance
with the foregoing provision of law.

Thank you very much for your usual accommodation and past
favors.

Respectfully yours,

LAWIN
(Legal Advocates for Workers’ Interest)”

A copy of the letter dated 19 November 2018 from LAWIN is

attached hereto as Annex “5” and made an integral part hereof.

11. In the Medical Certificate dated 19 October 2018 provided

by the complainant, the remarks of Dr. Edmund Santos is that the
complainant is “advised to refrain from strenuous physical activities.”
A copy of the Medical Certificate dated 19 October 2018 is attached
hereto as Annex “6” and made an integral part hereof.

12. On 15 February 2019, the complainant filed the instant

Complaint claiming he was illegally dismissed and prayed for the
payment of separation pay, moral and exemplary damages and
attorney’s fees.

ISSUES

13. The issues for resolution by the Honorable Labor Arbiter

is as follows:

a. Whether or not complainant Bautista was illegally

dismissed (constructively).

b. Whether or not complainant Bautista is entitled to the

payment of separation pay.

c. Whether or not complainant Bautista is entitled moral and

exemplary damages and Attorney’s fees.

ARGUMENTS AND DISCUSSION

 5

THE COMPLAINANT WAS NOT DISMISSED,

LEGALLY OR ILLEGALLY. IN FACT, THE
COMPLAINANT REMAINS TO BE AN
EMPLOYEE OF RESPONDENT WHO IS BEING
ASKED TO RETURN TO WORK AFTER HIS
APPROVED INDEFINITE LEAVE.

14. It must be stressed and emphasized right at the outset

that THE COMPLAINANT WAS NOT AND IS NOT DISMISSED from his
employment with the respondent. Complainant remains to be an
employee of the respondent up to the present time.

15. While the complainant may have been warned that his
failure to report back to work at the end of his six months indefinite
leave may be deemed to be an abandonment of work, the
respondent has not initiated any action whatsoever against the
complainant indicating an intention to terminate his employment.

16. In fact, complainant’s EastWest Healthcare health card

remains active. If complainant was dismissed as he claimed to be, his
health card would have been cancelled and revoked.

17. The plain fact is that the complainant was not and is not
dismissed, either legally or illegally. The complainant remains to be
an employee of the respondent up to the present time.

THE COMPLAINANTS’ CLAIM FOR

SEPARATION PAY IS WITHOUT LEGAL
BASIS BECAUSE COMPLAINANT WAS NOT
DISMISSED FROM HIS EMPLOYMENT.

18. Since the complainant remains in the employ of the

respondent and was not at all dismissed, the claim for separation pay
is totally misplaced and completely lacks any legal basis.

19. Complainant’s counsel LAWIN, in claiming payment of

separation for the complainant, cites Articles 284 (now Article 299) of
the Labor Code. However, Article 284 (now Article 299) of the Labor
Code provides for the payment of separation pay ONLY WHEN AN
EMPLOYEE IS TERMINATED DUE TO DISEASE.

20. As mentioned above, the COMPLAINANT WAS NOT AND

IS NOT DISMISSED from his employment with the respondent.
 6

Complainant remains to be an employee of the respondent up to the

present time. Since the complainant is not dismissed and remains an
employee of the respondent, Article 284 (now Article 299) of the
Labor Code does not apply.

21. In fact, the Supreme Court recently had occasion to rule

that separation pay as provided under Article 284 of the Labor
Code presupposes that the employee was dismissed from
employment whether legally or illegally and even added that
separation pay could not be awarded to an employee whose
employment was not terminated by his employer.

22. Thus, in the recent case of Claudia’s Kitchen, Inc. and

Enzo Squillantini vs. Ma. Realiza S. Tanguin; G.R. No.
221096, 28 June 2017, the Supreme Court aptly held as follows:

In sum, separation pay is only awarded to a dismissed

employee in the following instances: 1) in case of closure of
establishment under Article 298 [formerly Article 283] of the
Labor Code; 2) in case of termination due to disease or
sickness under Article 299 [formerly Article 284] of the Labor
Code; 3) as a measure of social justice in those instances
where the employee is validly dismissed for causes other
than serious misconduct or those reflecting on his moral
character; 4) where the dismissed employee's position is no
longer available; 5) when the continued relationship between
the employer and the employee is no longer viable due to the
strained relations between them; or 6) when the dismissed
employee opted not to be reinstated, or the payment of
separation benefits would be for the best interest of the
parties involved. In all of these cases, the grant of
separation pay presupposes that the employee to
whom it was given was dismissed from employment,
whether legally or illegally. In fine, as a general rule,
separation pay in lieu of reinstatement could not be
awarded to an employee whose employment was not
terminated by his employer.

In Dee Jay's Inn and Cafe v. Raneses, the Court wrote that
in "a case where the employee was neither found to have
been dismissed nor to have abandoned his/her work, the
general course of action is for the Court to dismiss the
complaint, direct the employee to return to work, and
order the employer to accept the employee."

23. Clearly, therefore, the complainant’s claim for separation

pay is totally without legal basis.
 7

THE COMPLAINANT’S CLAIM FOR MORAL

AND EXEMPLARY DAMAGES AND
ATTORNEY’S FEES ARE LIKEWISE WITHOUT
FACTUAL AND LEGAL BASIS SINCE
COMPLAINANT WAS NOT DISMISSED FROM
HIS EMPLOYMENT.

24. Considering that complainant’s claim that he was illegally

dismissed is without factual and legal basis and since complainant is
evidently not entitled to separation pay, the complainant’s claims for
moral and exemplary damages and attorney’s fees should all be
denied for lack of basis at all.

PRAYER

WHEREFORE, it is most respectfully prayed of this Honorable

Office that judgment be rendered in favor of respondents
DISMISSING the instant complaint for absolute want of merit.

Pasig City for Quezon City, 15 April 2019.

IGNACIO & IGNACIO LAW FIRM

Counsel for Respondents
Unit 2107, 21/F Prestige Tower, Emerald Avenue
Ortigas Center, 1605 Pasig City
E-Mail Address: [email protected]
Tel No. 638-8984; Telefax No. 634-8689
By:

ALVIN AGUSTIN T. IGNACIO

Roll of Attorneys No. 37139
PTR# 5232117; 7 January 2019; Pasig City
IBP# 060863; 4 January 2019; KALMANA
MCLE Compliance No. V-0018016; 8 April 2016

Copy furnished:

CHRISTOPHER MON S. BAUTISTA

Complainant
Lot 32, Block 12 Sumulong Townhouse
Sumulong Highway, Mayamoy, Antipolo City.
 8

In the recent case of Claudia’s Kitchen, Inc. and Enzo

Squillantini vs. Ma. Realiza S. Tanguin; G.R. No. 221096, 28
June 2017, the Supreme Court aptly held as follows:

In sum, separation pay is only awarded to a dismissed employee in

the following instances: 1) in case of closure of establishment under
Article 298 [formerly Article 283] of the Labor Code; 2) in case of
termination due to disease or sickness under Article 299 [formerly
Article 284] of the Labor Code; 3) as a measure of social justice in
those instances where the employee is validly dismissed for causes
other than serious misconduct or those reflecting on his moral
character; 4) where the dismissed employee's position is no longer
available; 5) when the continued relationship between the employer
and the employee is no longer viable due to the strained relations
between them; or 6) when the dismissed employee opted not to be
reinstated, or the payment of separation benefits would be for the
best interest of the parties involved. In all of these cases, the
grant of separation pay presupposes that the employee to
whom it was given was dismissed from employment,
whether legally or illegally. In fine, as a general rule,
separation pay in lieu of reinstatement could not be awarded
to an employee whose employment was not terminated by
his employer.

In Dee Jay's Inn and Cafe v. Raneses, the Court wrote that in "a
case where the employee was neither found to have been dismissed
nor to have abandoned his/her work, the general course of action is
for the Court to dismiss the complaint, direct the employee to
return to work, and order the employer to accept the
employee."