Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region Arbitration Branch
Quezon City

GERRY T. BISNAN,
Complainant,

-versus- NLRC-NCR Case No.11-16611-17

(Labor Arbiter RONALDO R. DOCTOR)

ALTO PLASTIC PACKAGING

CORP., TINA VALENCIA, Sps.
ESTELITO and SUSAN JACINTO,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - -x

COMPLAINANT’S POSITION PAPER

COMES NOW, complainant Gerry T. Bisnan, by counsel, unto this

Honorable Labor Arbitration Office, respectfully submits this Position Paper
in support of his complaint as follows:

PREFATORY STATEMENT

It is the policy of the state to assure the right of workers to

"security of tenure" (Article XIII, Sec. 3 of the 1987 Constitution).
The guarantee is an act of social justice. When a person has no
property, his job may possibly be his only possession or means of
livelihood. Therefore, he should be protected against any
arbitrary deprivation of his job. Article 280 of the Labor Code
has construed security of tenure as meaning that "the employer
shall not terminate the services of an employee except for a just
cause or when authorized by the Code.1

STATEMENT OF THE CASE

1
Rivera vs. Genesis Transport, Inc., G.R. No. 215568, 03 August 2015.

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 This is a case for Illegal Dismissal; Underpayment of Salary/ Wages
and Overtime Pay; Non-Payment of SSS Premium, Pag-Ibig, Philhealth,
Holiday Pay, 13th Month Pay, Separation Pay and Savings; Moral and
Exemplary Damages; Attorney’s Fees, Litigation Expenses and costs of suit.

THE PARTIES

Complainant, GERRY T. BISNAN (Complainant), is of legal age,

Single and resident of Block 6, Building 9, Unit 205, Disiplina Village, Bignay,
Valenzuela City. He may be served with summons and other legal processes
of this Honorable Labor Arbitration Office at the undersigned counsel’s
address as indicated below.

Respondent ALTO PLASTIC PACKAGING CORP. (respondent Alto),

is a corporation, organized and existing under the laws of the Philippines
with business address at No. 81 Captain Cruz Street, Parada, Valenzuela
City, where it may be served with summons and other legal processes of this
Honorable Labor Arbitration Office.

While respondents, TINA VALENCIA (Operations Manager) and

Spouses ESTELITO and SUSAN JACINTO (Owners), are the responsible
officers of Respondent Alto. They may be served with summons and other
legal processes through their business address as stated above.

STATEMENT OF FACTS

1. Complainant started working with respondent Alto through

Guillermo Natividad Manpower Agency as a delivery truck driver. As a
truck driver therein, complainant’s responsibility is to deliver goods for and
in behalf of respondent Alto. However, a week after he started working
therein, the latter manpower agency withdraw from respondent company
due to disagreement.

2. Despite said withdrawal, complainant’s employment with

respondent Alto remained and the latter directly pays his salaries.

3. On 23 November 2016, respondent Alto transfer complainant

under the alleged agency of MGME Manpower Services.

4. Complainant was then directly employed by respondent Alto as

truck driver. He was led to sign a supposed contract to which he was not
been given any copy.

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Copies of complainant’s identification cards and ATM card indicating
respondent Alto Plastic Packaging Corp. is his true and bona fide employer
are hereto attached and made integral part hereof as ANNEX “A”, “B”, “C”,
“D” and “E”, respectively.
5. Most of the time, complainant does his work with only one (1)
helper/ loader and he is obliged to work for more than eight (8) hours every
shift as evidence by some log entries complainant retrieve from respondent
Alto’s logbook, to wit:

Date of Duty No. of Hours of Duty

May 16, 2017 7:20 AM to 7:05 PM
May 17, 2017 3:00 AM to 4:00 PM
May 18, 2017 6:30 AM to 7:30 PM
May 23, 2017 7:30 AM to 7:15 PM
May 24, 2017 3:00 AM to 3:15 PM
May 25, 2017 9:10 AM to 7:16 PM
May 26, 2017 3:00 AM to 3:20 PM
May 27, 2017 3:00 AM to 11:00 PM
May 29, 2017 6:55 AM to 11:00 PM
May 30, 2017 7:10 AM to 8:30 PM
May 31, 2017 7:25 AM to 8:30 PM
June 01, 2017 4:30 AM to 6:10 PM
June 02, 2017 5:00 AM to 7:10 PM
June 03, 2017 8:00 AM to 8:30 PM
June 05, 2017 6:30 AM to 5:30 AM
June 07, 2017 3:20 AM to 5:35 PM
June 08, 2017 2:15 AM to 4:00 PM
June 09, 2017 2:51 AM to 3:30 PM
June 10, 2017 1:00 AM to 8:36 PM
June 13, 2017 4:00 AM to 9:35 PM
June 15, 2017 7:00 AM to 8:10 PM
June 19, 2017 6:30 AM to 7:05 PM
June 20, 2017 6:33 AM to 7:18 PM
June 21, 2017 6:45 AM to 7:06 PM
June 22, 2017 6:47 AM to 7:06 PM
June 23, 2017 6:46 AM to 7:02 PM
June 24, 2017 2:30 AM to 3:05 PM
June 27, 2017 6:35 AM to 5:15 PM
June 28, 2017 6:16 AM to 6:05 PM
June 29, 2017 6:25 AM to 7:15 PM
June 30, 2017 6:30 AM to 8:05 PM
July 01, 2017 7:15 AM to 8:00 PM

Copies of some logbook pages of respondent Alto to which the above-listed

data were gathered are hereto attached and made as integral part hereof as
ANNEX “F series”.
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 6. Despite such hard and long hours of work, complainant was
grossly underpaid, especially in overtime work done.

7. Not only that, in many occasions, complainant was made to

suffer rants and expletive words from respondent Alto’s supervisor for just
asking an extra helper/ loader during delivery sorties, resulting in him to be
sent home and not allowed to go on duty for days.

8. So also in cases of apprehensions by traffic law enforcers due to

bad emission of trucks or driving without stickers in provinces, the same
was for complainants account even though it was apparent that it was
respondent’s duty to maintain the vehicle and secure the necessary travel
documents.

9. On one occasion that brought about complainant’s constructive

illegal dismissal was when he was tasked to deliver product to a customer
somewhere in San Juan City. Unfortunately, they failed to make the delivery
despite the fact that they made it on time. The customer does not want to
receive the products as it was almost 05:00 o’clock in the afternoon and their
elevators are already shutdown.

10. The following day, complainant was not given any scheduled
deliveries or work assignment. For days, that was the situation. Worst,
different reasons where given such as the delivery truck is under
maintenance or that the repair is yet to be done and etc. In the end, all they
say is that they will just call the complainant once the alleged repair was
done, which unfortunately, never happened.

11. Feeling aggrieved, complainant filed an appropriate complaint

by referring the same under the Single Entry Approach (SENA) proceedings,
though unsuccessful. A formal complaint was subsequently filed before the
NLRC wherein mandatory conferences were made for possible settlement
but still, to no avail.

12. Hence, this Position Paper.

ISSUES

I.

WHETHER OR NOT COMPLAINANT IS A REGULAR

EMPLOYEE OF RESPONDENT ALTO.

II.
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 WHETHER OR NOT COMPLAINANT WAS ILLEGALLY
DISMISSED.

III.

WHETHER OR NOT COMPLAINANT WAS DENIED DUE

PROCESS.
IV.

WHETHER OR NOT RESPONDENTS ARE LIABLE FOR ALL

MONEY CLAIMS HEREIN CLAIMED INCLUDING
DAMAGES, ATTORNEY’S FEES, LITIGATION AND THE
LIKE EXPENSES AND THE COST OF SUIT.

ARGUMENTS/ DISCUSSIONS

COMPLAINANT IS A REGULAR
EMPLOYEE OF RESPONDENT
ALTO

Complainant is a regular employee of respondent Alto. It cannot be

gainsaid that Complainant was employed and assigned as a truck driver in
Respondent Alto Plastic Packaging Corp., an entity engaged in retail of
goods and packaging solutions and was tasked to drive their delivery trucks
in order to transport products for distribution to clients or customers. He is
made to perform a job which is usually necessary or desirable in the usual
business or trade of Alto Plastic Packaging Corp. Complainant has been
performing his assigned tasks continuously with Alto as early as 2016.

Article 280 of the Labor Code is very explicit, to wit:

“Art. 280. Regular and casual employment. The

provisions of written agreement to the contrary
notwithstanding and regardless of the oral agreement of
the parties, an employment shall be deemed to be regular
where the employee has been engaged to perform
activities which are usually necessary or desirable in the
usual business or trade of the employer, except where the
employment has been fixed for a specific project or
undertaking the completion or termination of which has
been determined at the time of the engagement of the
employee or where the work or service to be performed is

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 seasonal in nature and the employment is for the
duration of the season.

An employment shall be deemed to be casual if it is

not covered by the preceding paragraph: Provided, that
any employee who has rendered at least one year of
service, whether such service is continuous or broken,
shall be considered a regular employee with respect to
the activity in which he is employed and his employment
shall continue while such activity exists.”

Hence, having been in the continuous employ of the Respondent Alto,

prior to his constructive illegal dismissal, Complainant, by the mandate of
law, has already attained a regular status in the company and, undoubtedly,
must enjoy his security of tenure.

COMPLAINANT’S DISMISSAL
WAS CLEARLY ILLEGAL

Complainant Bisnan was not only illegally dismissed, but was also
constructively dismissed. Being a regular employee as defined by Article 280
of the Labor Code, he cannot be dismissed except for just or authorized
causes provided for by the Labor Code.

Complainant, prior to his filing of this instant case, had been a victim
of discrimination, disdain and insensibility perpetrated by respondent Alto.
This is evident to the way complainant was being treated by respondent. The
act of respondent of not giving complainant any work assignment and the
way he was left guessing on whether he still has a job is a bullying
behaviour tantamount to constructive illegal dismissal.

Complainant never quit his job. He just had no choice but to file this
case in order to protect his right.

It is settled that constructive dismissal is defined as a cessation of

work because continued employment is rendered impossible, unreasonable
or unlikely. Similarly, there is constructive dismissal when an act of clear
discrimination, insensibility or disdain by an employer has become so
unbearable to the employee leaving him with no option but to forego with
his continued employment. Simply put, it is a "dismissal in disguise or an act
amounting to dismissal but made to appear as if it were not.2

2
Malasugui vs. Galang, G.R. No. 174173, 07 March 2012.

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COMPLAINANT WAS DENIED
DUE PROCESS

Insofar as the procedural due process is concerned, the law requires

that the employer must furnish the worker sought to be dismissed with two
(2) written notices before termination of employment can be legally effected,
to wit: (1) notice which apprises the employee of the particular acts or
omissions for which his dismissal is sought; and (2) the subsequent notice
which informs the employee of the employer’s decision to dismiss him (Sec.
13, BP 130; Sec. 2-6 Rule XIV, Book V, Rules and Regulations
Implementing the Labor Code as amended).

In this instant case, it was clear that complainant was not afforded of
the procedural due process accorded by law because he was simply not
given any work assignment. Complainant was completely clueless.
Respondents did not even properly charge him for any violation of a
particular company rule or regulation

It is a basic principle that in termination cases, the employer bears the

burden of proving that the dismissal of the employee is for a just or an
authorized cause. Failure to dispose of the burden would imply that the
dismissal is not lawful.3

The Court, in Metaworld International, Inc. vs. Hechanova, 4 in

closing says:

While the Court recognizes that the management has the

discretion and prerogative to regulate all aspects of
employment, which includes the transfer of employees, work
assignments, discipline, dismissal and recall of workers, the
exercise of power is not absolute as "it must be exercised in
good faith and with due regard to the rights of labor." More
important, "management prerogative may not be used as a
subterfuge by the employer to rid himself of an undesirable
worker."

COMPLAINANT IS ENTITLED TO
ALL THE MONEY CLAIMS
HEREIN CLAIMED INCLUDING
DAMAGES, ATTORNEY’S FEES,
LITIGATION AND THE LIKE
EXPENSES AS WELL AS COST OF
THE SUIT.
3
United Tourists Promotion vs. Kemplin, G.R. No. 205453, 05 February 2014.
4
G.R. No. 208053, 18 October 2017.

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 A simple perusal of the facts herein reveals that Respondents have
violated different labor standard laws. Considering that the Complainant is
seeking herein the satisfaction of simple money claims, respondents are
obligated to submit proofs of payment of such claims. Otherwise, as a
consequence of Respondents’ failure to present or submit proofs of payment,
complainant’s claim due to him will become unquestionable;

Besides, in this jurisdiction, it is settled that, in cases of money claims

asserted by its employees, the burden of proof is shifted to the employer,
bearing in mind that it possesses all the necessary pieces of evidence to
prove payment of such claims;

As a proximate result of Respondents’ unlawful acts as clearly

narrated above, Complainant suffered untold miseries brought about by the
sudden deprivation of his only means of livelihood. He, being the bread
winner, was unceremoniously left without a source of income. He was
thrown out of the job he faithfully performed for years because Respondents
felt so powerful that they could just, at anytime, undermine Complainant’s
security of tenure;

All the illegal and improvident acts of the Respondents discussed

above, which are part and parcel of their malevolent and anti-workers
inclination and attitudes, were motivated by ill-will and illicit intentions and
committed with wilful and evident bad faith;

Verily, the Complainant is entitled to moral damages as provided for

under Articles 2217 and 2219 in relation to Article 21 and paragraph 6 of
Article 32 of the Civil Code of the Philippines;

The foregoing provisions read as follows:

“Article 2217. Moral damages include physical suffering,

mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar
injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of
the defendant’s wrongful act or omission.”

“Article 2219. Moral damages may be recovered in the

following and analogous cases:

xxxxx

(10) Acts and actions referred to in Articles 21,

26, 27, 28, 29, 30, 32, 34 and 35.”
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 “Article 21. Any person who wilfully causes
loss or injury to another in a manner that is
contrary to morals, good customs or public policy
shall compensate the latter for the damage.”

“Article 32. Any public officer or employee,

or any private individual, who directly or
indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following
rights and liberties of another person shall be
liable to the latter for damages:

xxxx

(6) The right against deprivation of property

without due process of law.”

Since it is clear that the Complainant is entitled to moral damages,

necessarily, he is likewise entitled to exemplary damages, pursuant to
Article 2229 of the Civil Code of the Philippines which provides:

“Article 2229. Exemplary or corrective damages are

imposed, by way of example or correction for the public
good, in addition to the moral, temperate, liquidated or
compensatory damages.”

“The award of moral and exemplary damages is proper when an

illegally dismissed employee had been harassed and arbitrarily terminated
by the employer, as when the latter committed an anti-social and oppressive
abuse of its right to investigate and dismiss an employee.”5

Complainant was constructively dismissed from his job out of mere

whims and caprices of herein Respondents. Such Respondents’ actuation,
without a doubt, is done in bad faith. Out of necessity, therefore,
Respondents must pay herein Complainant moral and exemplary damages as
rightful compensations for the sufferings he does not deserve;

Finally, having been compelled to engage the services of a counsel to

vindicate his rights, Complainant is further entitled to attorney’s fees
equivalent to ten percent (10%) of the total judgment amount that may be
awarded herein. As the Supreme Court held in Aliling vs. Feliciano,6 to wit:

“It is settled that in actions for recovery of wages or

where an employee was forced to litigate and, thus, incur
5
Sagum vs. CA, G.R. No. 158759, 26 May 2005.
6
G.R. No. 185829, April 25, 2012:

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 expenses to protect his rights and interest, the award of
attorney’s fees is legally and morally justifiable.”

PRAYERS

WHEREFORE, in view of all the foregoing, it is most respectfully

prayed for, that after due consideration, a DECISION BE RENDERED in
favor of the Complainant as follows:

a. DECLARING Complainant to have been CONSTRUCTIVELY

ILLEGALY DISMISSED and was DENIED DUE PROCESS;

b. HOLDING Respondents SOLIDARILY LIABLE for all the

monetary claims herein demanded as well as DAMAGES in the
amount of ONE HUNDRED THOUSAND PESOS (₱ 100,
000.00) as moral damages and ONE HUNDRED THOUSAND
PESOS (₱ 100, 000.00) as exemplary damages; and

c. DECLARING Respondents SOLIDARILY LIABLE to reimburse

Complainant all his litigation and other related expenses,
including attorney’s fees equivalent to TEN PERCENT (10%) of
the total monetary award.

Other reliefs, just and equitable under the premises are likewise
prayed for.

Quezon City. 13 February 2018.

ALAFRIZ DOMINGO BARTOLOME LACHICA AGPAOA

CALVAN CANTIL & CUSTODIO (ADBLACCC) Law Office
Unit 4-I, 4/F Future Point Plaza 3, 111 Panay Avenue,
Brgy. South Triangle, Quezon City 1103, Philippines
Landline: (02) 935-4262 • Telefax: (02) 363-4460
Email: [email protected]

By:

Atty. JASON A. CANTIL

Roll of Attorneys No. 56515
IBP Lifetime Member No. 011356; QC
MCLE Compliance No. V-017096; 03/21/2016
PTR No. 5520902; 01/03/2018; Quezon City

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 JAMES CORWIN S. CUSTODIO
Roll of Attorneys No. 63741
IBP Lifetime No. 014198; 01/12/2016; RSM
MCLE Compliance No. V-0005492; 01/14/2015
PTR No. 5520904; 01/03/2018; Quezon City

COPY FURNISHED:

ALTO PLASTIC PACKAGING CORP; TINA VALENCIA;

Spouses ESTELITO and SUSAN JACINTO
No. 81 Captain Cruz Steet, Parada, Valenzuela City

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