INTERNAL MEMORANDUM Statement of Facts 1. Complainant is an employee of respondent company.

He was first engaged in the company as a sales person and was later promoted as Supervisor. For 20 years, he has proven excellent service to the company and various customers. s a matter of fact, he was awarded as !est Sales "erson and !est Supervisor for two years consecutively. #hen the company is challenged with too many customers and only few sales representatives are on duty, the complainant, with his undenia$le s%ills, would always close a num$er of deals with the clients. 2. Sometime on ugust 201&, a co'wor%er informed the complainant that a sex video of him and his former girlfriend is on (outu$e, ta%en at around 11)00pm to 12)00 midnight, time stamped. *t showed that while complainant was mounting the video, his girlfriend is captured to $e waiting in the $ed. *mmediately after he %new a$out it, complainant sent an e'mail to the uploader telling the latter to remove the video. He reported the same and was deleted a wee% after. *n the succeeding wee%s, while complainant thought that it was the end of it, he was surprised to %now that a second video was uploaded. total of five videos were uploaded. &. +n Septem$er 1, 201&, complainant received a letter from the respondent company re,uesting the former to explain in writing why he will not $e removed from his -o$ for reason of serious misconduct. .. Complainant in his explanation expressed that he was not the one who uploaded the video and that the external memory drive of his computer was stolen. He also explained that he was after all the victim in this case for his rights were infringed and that he deserved support from the respondent

company. Further, he is certain that the video will not affect his a$ility to sell for the company. /. 0espite the explanation of the complainant, he was illegally dismissed $y the respondent company. Statement of Issues #H12H13 +F 4+2 2H1 C+5"6 *4 42 # S *6617 66( 0*S5*SS10 #H12H13 +3 4+2 C+5"6 *4 42 *S 142*2610 F+3 31*4S2 215142 40 66 5+412 3( C6 *5S S12 F+32H *4 2H1 6 !+3 C+01. Ruling/Holding #e are of the opinion that 4ic% was illegally dismissed from his wor% and thus, the Cars Cars 5ultinational Company should $e charged of illegal dismissal under the Honora$le r$itration +ffice. 2he position 4ic% was holding in the said company is a lifetime achievement for him8 it is a product of his exceptional talent and hard wor%. #e suggest that 4ic% should $e reinstated in his former position for after all, he is an asset in the company. He should also claims awards for moral, nominal, exemplary damages and the company shall also pay the ttorney9s fees and all other legal expenses that would $e incurred. Arguments/Discussion ! Illegal Dismissal

2he respondent company is lia$le for illegal dismissal, for dismissing herein complainant without -ust cause and without due process of law. Complainant, as a regular employee and has $een wor%ing for the respondent company for almost 20 years already. He therefore en-oys security of tenure. 2he 6a$or Code expressly guarantees the employees9 security of tenure) The State shall assure the rights of workers to selforganization, collective bargaining, security of tenure, and just and humane conditions of work. :6a$or Code, rt. &; Further, it is well'enshrined that) n cases of regular em!lo"ment, the em!lo"er shall not terminate the services of an em!lo"ee except for a just cause or when authorized b" this Title# :6a$or Code, rt. 2<=; >emphasis supplied? 2he complainant therefore cannot $e dismissed $ecause he did not perform an act that would -ustify a ground for termination. No just cause 2he allegation that he is $eing terminated from respondent company $ecause of serious misconduct is $eyond comprehension. Such allegation was -ust resorted to -ustify the termination of complainant8 respondent company terminated complainant $y reason of alleged serious misconduct due to the sex video of the latter and his girlfriend $eing posted and spread in (outu$e. 2he respondent company $ased the dismissal of the complainant for the reason of serious misconduct as enumerated) Termination b" em!lo"er. $n em!lo"er ma" terminate an em!lo"ment for an" of the following causes% a. Serious misconduct or willful disobedience b" the em!lo"ee of the lawful orders of his em!lo"er or

re!resentative in connection with his work :6a$or Code, rt. 2@2; 2he defense might cite the principle of AHe who comes to Court must come with clean hands.B 2o re$ut this issue, evidence strongly proves that the act done $y the complainant is a private thing. *t is nowhere related to his wor%. A&or misconduct to be a ground for dismissal of an em!lo"ee, it must be serious in nature and in connection with the em!lo"ee's workB :Cohansen #orld 7roup Corporation vs. 7onDales, 7.3. 4o. 1=@<&&, +cto$er 10, 2012; 2he act is not intended to $etray the confidence of the company for t"e se# $ideo %as a &ri$ate act and indeed' intended for &ri$ate use! It "as no rele$ant connection to "is %or(! >emphasis supplied? 2he Court in its previous case defined misconduct as AE a transgression of some established and definite rule of action, a forbidden act, a dereliction of dut", wilful in character, and im!lies wrongful intent and not mere error in judgment B. :Colegio de San Cuan de 6etran'Calam$a vs. Fillas, 7.3. 4o. 1&<<=/, 5arch 2G, 200&;. *n another case, it said that A t is e(uall" im!ortant and re(uired that the act or conduct must have been !erformed with wrongful intent.B :463C vs. Salgarino, 7.3. 4o. 1G.&<G, Culy &1, 200G;. 2he video, which is personal in nature, was stolen and posted $y an anonymous person8 it was not him who initiated the posting of the video. For this reason, it shows that complainant neither performed a wrongful act nor harvested any wrongful intention against the respondent company. n order for misconduct to be a just cause for dismissal it must )a* be serious+ )b* relate to the !erformance of the em!lo"ee's duties+ and )c* show that the em!lo"ee has become unfit to continue working for the em!lo"er ,-hili!!ine .ong /istance Tele!hone 0om!an" vs. 1erbano, 2r., 3.4. 5o. 678699, 5ovember :;, :<<9, 1lazer 0ar =arketing, nc. vs. 1ulauan, 76> S04$ ;6?, :<6<@. *n re,uisite >a?, there was no act or misconduct from the part of complainant, thus the gravity or seriousness of the actions cannot $e assessed, for he did not execute any act or misconduct in posting the sex video8 in re,uisite >$?, the sexual acts and spreading of the sex video are not wor% related and are personal in nature, affecting only complainant

and his 7irlfriend. 2he sex video was time stamped and would show that such video was ta%en around 11)00pm to 12)00 midnight, implying that the acts done was after wor%ing hours, thus it is personal in nature and not wor% related8 and in re,uisite >c?, there is no instance, allegation, or any evidence to show that complainant was unfit to perform his wor%. nd also, with a review of his employment records, it is undisputed that he is in fact an outstanding and relia$le employee. His excellent performance as a salesman and supervisor and his capa$ility of closing deals for the company would show his utmost dedication to his -o$. 2wenty years of loyal and finest service overshadows the respondent company9s allegation. 2he defense might attac% the issue on the claim that the act of 4ic% was immoral. *n one of the Supreme Court cases, it said that A s a general rule, immorality is not a -ust ground to terminate employment except when such immoral conduct is pre-udicial or detrimental to the interest of the employer. 2he standard to $e used to determine whether immoral conduct adversely affects the interest of the employer is whether the immoral act is of such nature which is calculated to undermine or in-ure such interest or which would ma%e incapa$le of performing his wor%.B :Santos, Cr. vs. 463C, 7.3. no. 11/<=/, 5arch G, 1==@; 5oreover, for a period of two years, he was awarded as !est Sales "erson and !est Supervisor8 his performance as an employee was never put to ,uestion and his wor% was performed satisfactorily. !y all logical explanation, this is the very reason why he was retained for a period of more than 20 years. 2herefore, without the realiDation of all the re,uisites of misconduct and the recognition of his exceptional wor%ing s%ills, it cannot )e contended t"at t"e illegal dismissal %as grounded on *ust cause. >1mphasis supplied? On the allegations that complainant is married, the women on the video were his subordinates in work and were taped without their knowledge

2he complainant is single and never $een married. !aseless is their allegation that complainant is married $ecause they tendered no evidence, such as a valid marriage certificate. 2he allegation that the woman had no %nowledge that she is $eing videotaped again is false, it is again settled in the facts of this case that while nic% was mounting the video to capture the $ed, his girlfriend was waiting. *n that position, it is physically impossi$le that the woman did not %now that complainant was mounting the camera. nd the allegation that the women in the sex videos are five different people and su$ordinates of the complainant is false8 it is settled in the facts of this case that such woman was his girlfriend. 2he law provides) The burden of !roving that the termination was for a valid or authorized cause shall rest on the em!lo"er. :6a$or Code, rt. 2<< >$?; nd as enunciated in the Court9s previous decision, absent an" showing of a clear, valid and legal cause for cessation of em!lo"ment, the termination of the em!lo"ee is considered illegal dismissal :Hy vs. Centro Ceramica Corporation, 7.3. 4o. 1<.G&1. +cto$er 1=, 2011.; 2he respondent company failed to show that complainant exhi$ited serious misconduct, in relation to his performance as an employee. His involvement in the video was neither statistically nor ,ualitatively proven to have $earing or adverse effects on his performance. The burden of !roving that the termination was for a valid or authorized cause rests on the em!lo"er. Thus, !rivate res!ondents must not merel" rel" on the weaknesses of !etitionerAs evidence but must stand on the merits of their own defense. : ustria v. 463C, 7.3. 4o. 12.&@2, ugust 1G, 1===; 0iligent effort on the part of respondent company was not exerted to ascertain such allegations of serious misconduct. nd so it is said, .ike a house of cards, the evidence of !rivate res!ondents colla!ses when we take into account the fact that its foundation is

made of hearsa" evidence or mere s!eculations. : ustria v. 463C, 7.3. 4o. 12.&@2, ugust 1G, 1===; *t is therefore concluded that the said allegations are unsu$stantiated $y evidence thus, has no $earing at all. No due process Further, the law re,uires compliance not only with su$stantial evidence $ut also of procedural due process. *n a recent case, the Court said that ATo justif" the dismissal of an em!lo"ee, the em!lo"er must, as a rule, !rove that the dismissal was for a just cause and that the em!lo"ee was afforded due !rocess !rior to dismissal. :Hnivac 0evelopment *nc. vs. Soriano, 7.3. 4o. 1@20<2, Cune 1=, 201&; !reaches of these due process re,uirements violate the 6a$or Code which provides) A=iscellaneous !rovisions BBB :. Subject to the constitutional right of workers to securit" of tenure and their right to be !rotected against dismissal eBce!t for a just and authorized cause and without !rejudice to the re(uirement of notice under $rticle :C? of this 0ode, the em!lo"er shall furnish the worker whose em!lo"ment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter am!le o!!ortunit" to be heard and to defend himself with the assistance of his re!resentative if he so desires in accordance with com!an" rules and regulations !romulgated !ursuant to guidelines set b" the /e!artment of .abor and Dm!lo"ment B. :6a$or Code !oo% F, rticle 2<<; 2he procedure for terminating an employee provides) ASection :. Standard of due !rocess% re(uirements of notice. E n all cases of termination of em!lo"ment, the following standards of due !rocess shall be substantiall" observed.

. &or termination of em!lo"ment based on just causes as defined in $rticle :C: of the .abor 0ode% )a* $ written notice served on the em!lo"ee s!ecif"ing the ground or grounds for termination, and giving to said em!lo"ee reasonable o!!ortunit" within which to eB!lain his side+ BBB )c* $ written notice ,of@ termination served on the em!lo"ee indicating that u!on due consideration of all the circumstances, grounds have been established to justif" his terminationB. :+mni$us 3ules *mplementing the 6a$or Code, !oo% F, 3ule II***, Section 2; 0espite the explanation of the complainant after his receipt of the first notice, no second written notice was handed to him. The law re(uires the em!lo"er to give the worker to be dismissed two written notices before terminating his em!lo"ment. 0onsidering that these notices are mandator", the absence of one renders an" management decision to terminate null and void. :Colegio de San Cuan de 6etran' Calam$a vs. Fillas, 7.3. 4o. 1&<<=/, 5arch 2G, 200&; 2he re,uisites for a valid dismissal is provided namel" % )a* the em!lo"ee must be afforded due !rocess, i.e., he must be given an o!!ortunit" to be heard and to defend himself, and+ )b* the dismissal must be for a valid cause as !rovided in $rticle :C: of the .abor 0ode. Fithout the concurrence of this twin re(uirements, the termination would, in the e"es of the law, be illegalB. : ustria vs. 463C, 7.3. 4o. 12.&@2, ugust 1G, 1===; 2he step of the due process is also reiterated, 6* &irst written notice+ :* Gearing+ and ?* Second written notice. :7enuino v. 463C >7.3. no. 1.2<&2'&&, 0ecem$er ., 200<; The first notice, which ma" be considered as the !ro!er charge, serves to a!!rise the em!lo"ee of the !articular acts or omissions for which his dismissal is sought. : ustria v. 463C, 7.3. 4o. 12.&@2, ugust 1G, 1===;. *n the case, the letter sent to the complainant on Septem$er 1, 201& was as%ing him to defend himself and explain in writing why he should not $e removed from wor% due to serious misconduct. However, he was not fairly apprised and

respondent company did not clearly explain the specific acts that would constitute serious misconduct and that such act committed violated particular rules and regulations of the company. 2he letter never even mentioned that complainant would $e su$-ect to investigation. The second notice on the other hand seeks to inform the em!lo"ee of the em!lo"erAs decision to dismiss him. This decision, however, must come onl" after the em!lo"ee is given a reasonable !eriod from recei!t of the first notice within which to answer the charge and am!le o!!ortunit" to be heard and defend himself with the assistance of a re!resentative, if he so desires. : ustria v. 463C, 7.3. 4o. 12.&@2, ugust 1G, 1===;. !ecause complainant was not served a second written notice, it is crystal clear that there is a violation of the law. Fhen the em!lo"ee was not served the two notices to be given which is a twin re(uirement, the !rocedural due !rocess was not observed, the Su!reme 0ourt ruled that the em!lo"ee was not validl" dismissed. :Sang'an vs. 1,uator 4ight Security gency, *nc, 7.3. 4o. 1<&1@=, Fe$ruary 1&, 201&; *t is concluded that the termination of the complainant respective employment fails to comply with the re,uirements mandated $y law. 3espondent company had unilaterally and in evident $ad faith, severed his employment without due regard to procedures. Complainant was not even provided with a hearing or formal investigation, ample enough to respond to the charge, present his evidence or re$ut the evidence presented against him. *t appears that the respondent company9s only $asis in considering complainant9s side was his explanation that was made in writing. 5on-com!liance with the said re(uirements is fatal because those are conditions sine (ua non before dismissal ma" be validl" effected. : ustria v. 463C, 7.3. 4o. 12.&@2, ugust 1G, 1===;. 2hus, it can $e said that there was a violation of the procedural due process. #ith all the foregoing facts and arguments, it is evident that the complainant was illegally and un-ustly dismissed $y the respondent company. +! Reinstatement or Se&aration ,a- and monetar- claims

a! Reinstatement n ordinary citiDen would understand that what is involved in this situation is not -ust wor% or occupation $ut livelihood which sustains the source of living of the employee. s a conse,uence of the illegal dismissal of the complainant $y the respondent company, it is -ust and e,uita$le that the latter should reinstate and $e lia$le for the damages incurred in the case. 2he law provides) $n em!lo"ee who is unjustl" dismissed from work shall be entitled to reinstatement without loss of seniorit" rights and other !rivileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetar" e(uivalent com!uted from the time his com!ensation was withheld from him u! to the time of his actual reinstatement. :6a$or Code, rt. 2<=; Complainant should $e reinstated to his former position as Supervisor for he wor%ed hard for that achievement. nd that termination has put his welfare at ris% $ecause his -o$ is his source of income8 considering that A$n em!lo"er should bear in mind that, in the eBercise of such right ,termination of em!lo"ee@, what is at stake is not the em!lo"ee's !osition but her livelihood as well. Fhere a !enalt" less !unitive would suffice, whatever misste!s ma" have been committed b" an em!lo"ee ought not to be visited with a conse(uence so severe such as dismissal from em!lo"ment B ,1lazer 0ar =arketing, nc. vs. 1ulauan, 76> S04$ ;6?, :<6<@ )! Se&aration ,a*n the event, however, that reinstatement is no longer possi$le, or if the complainant decides not $e reinstated, the respondent company shall pay him separation pay in lieu of reinstatement. Complainant, $ecause of the em$arrassment he suffered due to the video on (outu$e and aggravated $y his termination which may have created strained relations with the respondent company and his co' wor%ers, he may choose to have the separation pay instead.

*t is said that Se!aration !a" is granted where reinstatement is no longer advisable because of strained relations between the em!lo"ee and the em!lo"er. 1ackwages re!resent com!ensation that should have been earned but were not collected because of the unjust dismissal. The basis for com!uting backwages is usuall" the length of the em!lo"eeAs service while that for se!aration !a" is the actual !eriod when the em!lo"ee was unlawfull" !revented from working. ,7olden ce !uilders vs. 2alde, 7.3. 4o. 1@<200, 5ay /, 2010; Se!aration !a" and backwages are distinct and se!arate from each other. $ .abor $rbiter cannot order that the se!aration !a" be deducted from the backwages. :Solis vs. 463C, 7.3. 4o. 11G1</, +cto$er 2@, 1==G.; c! .ac(%ages *t is $ut right to award the complainant what rightfully $elongs to him. Fe find no reason to de!art from the 0$ conclusion that res!ondent's termination from em!lo"ment is without just and valid ground. 5either was due !rocess observed, making his termination illegal. Ge is, therefore, entitled to the twin relief of reinstatement and backwages granted under the .abor 0ode. :Hnivac 0evelopment *nc. vs. Soriano, 7.3. 4o. 1@20<2, Cune 1=, 201&;. !asing from the provision of the 6a$or Code, complainant should also $e awarded of $ac% wages inclusive of allowances and other $enefits from the time his compensation was withheld from him up to the time of his actual reinstatement. 1ackwages is merel" one of the reliefs which an illegall" dismissed em!lo"ee !ra"s the labor arbiter and the 5.40 to render in his favor as a conse(uence of the unlawful act committed b" the em!lo"er. :Callanta vs. Carnation "hilippines *nc. 7.3. 4o. <0G1/ +cto$er 2@, 1=@G; d! Moral Damages #e %now for a fact that laws hold no respect of persons due to race, religion, or even social standing. 6aws are $y nature enacted for protection of the society and insure e,uality with man%ind. 2he intention of the complainant in filing this case is to receive what is due

him in accordance with the provisions of the 6a$or and the Civil Code, and nothing more than that. Complainant was illegally dismissed. 2here were no valid grounds for him to $e terminated. s proven $y his 20'year service, he is indeed dedicated and dearly attached to his -o$ which supported his long years of living. +ne who is a victim of sudden removal from the only source of his life existence surely suffers surprise, shoc% and anxiety. His illegal dismissal raises ,uestions on how will he now sustain his finances and needs for everyday life. 2he Court noted that a job is more than the salar" that it carries. There is a !s"chological effect or a stigma in immediatel" finding one's self laid off from work. :Serrano v. 4ational 6a$or 3elations Commission, &@< "hil. &./ >2000?; Complainant is thus entitled to moral damages $ecause of the sufferings he had to endure and the malicious manner he was terminated. 2he defense might claim that moral damages are recovera$le only where the dismissal or suspension of the employee was attended $y $ad faith or fraud, or constituted an act oppressive to la$or or was done in a manner contrary to morals, good customs or pu$lic policy. 2he defense should not forget the $asic principle or foundation of our values. 2he law unam$iguously says) Dver" !erson in the eBercise of his rights and in the !erformance of his duties, must act with justice, give ever"one his due and observe honest" and good faith. :Civil Code, rticle 1=; nd so, the mere illegal dismissal without -ust cause and due process proves that the respondent company acted not in good faith. 4ot to mention the fact that complainant is one of the $est employees in the company having received awards and tendered service for long 20 years. e! E#em&lar- Damages So that the unlawful acts of the respondent company will not $e duplicated and to serve as an example to the pu$lic good, the latter

should $e held to pay complainant exemplary damages. DBem!lar" damages ma" avail if the dismissal was effected in a wanton, o!!ressive or malevolent manner to warrant an award for eBem!lar" damages. :7.3. 4o. 1G/&@1, Cune 2<, 2011; 2he respondent company disregarded the exceptional and continued 20'year service of the complainant. #hat grave wrong did he commit to deserve such act of oppressionJ DBem!lar" damages, on the other hand, are granted in addition to, inter alia, moral damages #b" wa" of eBam!le or correction for the !ublic good.# :"hilippine eolus uto'5otive Hnited Corporation vs. 463C, 7.3. 4o. 12.G1<, pril 2@, 2000; f! Nominal Damages s to nominal damages, according to the provisions of the Civil Code) 5ominal damages is adjudicated in order that a right of the !laintiff, which has been violated or invaded b" the defendant, ma" be vindicated or recognized, and not for the !ur!ose of indemnif"ing the !laintiff for an" loss suffered b" him. :Civil Code, rticle 2221; s discussed earlier, complainant was not offered due process and so, an em!lo"er becomes liable to !a" indemnit" to an em!lo"ee who has been dismissed if, in effecting such dismissal, the em!lo"er fails to com!l" with the re(uirements of due !rocess. The indemnit" is in the form of nominal damages intended not to !enalize the em!lo"er but to vindicate or recognize the em!lo"ee's right to !rocedural due !rocess which was violated b" the em!lo"er. ,Fiernes v. 4ational 6a$or 3elations Commissions, 7.3. 4o. 10@.0/. pril ., 200&;

g! Attorne-/s fees Further, as to the attorney9s fees, The 0ourt also affirms the award of attorne"'s fees. t is settled that when an action is instituted for the recover" of wages, or when em!lo"ees are forced to litigate and conse(uentl" incur eB!enses to !rotect their rights and interest,

the grant of $ttorne"'s fees is justifiable .B :"hilippine 4ational !an% vs. Ca$ansag, 7.3. 4o. 1/<010, Cune 21, 200/; 2herefore, the complainant should $e reinstated in his employment, entitled to full $ac% wages and awarded moral, nominal, exemplary damages and the respondent company $e lia$le to pay ttorney9s fees.