[LABOR] United Tourist Promotions (UTP), Ariel Jersey v.

Harland Kemplin
UTP
was formed in 1995
by Jersey, with help of 2 American Expatriates - Kemplin and Dunne

a sole proprietorship business entity engaged in the printing and distribution of

promotional brochures and maps for tourists,

employed Kemplin as President, for 5 yrs

from 2002-2007
renewable for same period, subject to new terms and conditions
Kemplin
even after expiration of fixed term employment contract
continued to render services
In May 2009,
as president, signed as President of UTP, advertisement agreements with Pizza Hut
and M.Lhuillier
UTPs Legal Counsel, in Jul 2009
sent letter to Kemplin
informing him of expiration of Employment Contract since Mar 2007, and was not
renewed.
that is extended services was mere toleration and was just given monthly
commissions.
but due to his inhuman treatment of the rank and file employees, considering the
cases filed against him : grave oral threats, summary deportation, grave coercion
no other recourse but to give him said letter/notice to cease and desist from entering
the premises of the main office[,] as well as the branch offices of [UTP] from receipt
for the protection and safety of the company[,] as well as to the employees and to

avoid further great damages

Complaint
before NLRC
against UTP and officers, Jersey, Lindo, and Jersey
Illegal dismissal; non-payment of salaries, and benefits; damages; and recovery of
company car forcibly taken from him
Kemplins Argument
after the expiration, he rendered his services as President and General Manager of
UTP.
in 2008, he began examining the company's finances, with the end in mind of
collecting from delinquent accounts of UTP's distributors, AND noted some
accounting discrepancies,
subsequently, he received a notice from UTP's counsel ordering him to cease and
desist from entering the premises of UTP offices. aTEADI
UTP
termination letter sent
Based on expiration of fixed term contract
Based on employers prerogative to terminate an employee who commits criminal
and illegal acts prejudicial to business
bad-mouthed, treated his co-workers as third class citizens, and called them "brown
monkeys.
Kemplin is a fugitive from justice since warrants of arrest for grave oral defamation
and grave coercion 23 had been issued against him
His extension was by merely toleration and he was given allowances due to
humanitarian considerations
that even if it were to be assumed that procedural due process was not observed in
terminating Kemplin, still, as per Wenphil Corp v. NLRC,
the dismissal due to just cause should not be invalidated.
that as per doctrine of strained relationship, between UTP and Kemplin, Kemplins
reinstatement is not adviseble, practical and viable.

LA
Kemplin was a regular employee;
Kemplin was illegally dismissed
UTP and Jersey are held liable
to reinstate [Kemplin] to his former position without loss of seniority rights
To pay backwages
Grounds:
a) [Kemplin] was able to show that he was still officially connected with [UTP] when
he signed in his capacity as President of [UTP] an (sic) advertisement agreement[s]
with Pizza Hut and M. Lhuillier Phils. as late as May 12, 2009.
b) Having been allowed to continue performing work much beyond the expiration of
his contract.
Thus the fixed term contract = converted to regular one as per Art 280
Thus he now enjoys security of tenure, and may only be dismissed for cause, and
after affording him procedural requirement of notice and hearing
c) While UTP and Jersey may have reason to terminate Kemplin "for loss of trust and
confidence
[UTP and Jersey] failed to observe the procedural requirements of notice and
hearing,
Their letter are two notices in one.
Further, various and serious offenses alluded thereto were not legally established
before [Kemplin's] separation.

NLRC
Affirmed.
But, Lindo and the other Jersey were excluded from liability, for lack of proof of their
involvement in the illegal dismissal.
a) Discussed Art 280
classifies employees into three (3) categories, namely:
(1) regular employees or those whose work is necessary or desirable to the usual

business of the employer;

further classified into:
(1) regular employees by nature of work; and
-employees who perform a particular activity which is necessary or desirable in the
usual business or trade of the employer
(2) regular employees by years of service.
-employees who have been performing the job, regardless of the nature thereof
(2) project employees or those whose 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 services to be
performed [are] seasonal in nature and the employment is for the duration of the
season
(3) casual employees or those who are neither regular nor project employees.
b) In CAB,
since he continued working as President for UTP for about one (1) year and five (5)
months and
since [his] employment is not covered by another fixed term employment contract,
[Kemplin's] employment after the expiration of his fixed term employment is already
regular.
c) Further, [UTP and Jersey] failed to prove the existence of just cause for his
termination. Their allegation of loss of trust and confidence was raised only in their
position paper and was never posed before [Kemplin] in order that he may be able to
answer to the charge.
CA
Affirmed
a) if indeed [Kemplin's] relationship with UTP after the expiration of the former's
employment contract was based on [UTP and Jersey's] mere tolerance, why then did
[they] have to "dismiss" [Kemplin] based on alleged loss of trust and confidence?
already an indication, if not an admission, that [Kemplin] was, indeed, still in the
employ of UTP albeit without a new or renewed contract of employment.
b) The alleged Notice of Termination Letter sent by [UTP and Jersey] miserably failed
to comply with the twin-notice requirement under the law. . . .

SC
Partially meritorious
1) Kemplin should have been promptly apprised of the issue of loss of trust and
confidence in him before and not after he was already dismissed.
The fact that Kemplin was apprised of his supposed offenses, through the Position
Paper filed by UTP and Jersey before LA Jose, did not cure the defects attending his
dismissal from employment.
2) While Kemplin was truly illegally dismissed, modification is necessary in the order
of reinstatement and 3th month benefit
a) There were already unsavory accusations hurled by the parties against each
other.
Kemplin's reinstatement is not likely to create an efficient and productive work
environment, hence, prejudicial to business and all the persons concerned.
As per APO v. Bides
General rule is reinstatement, and exception is strained relationship, where
reinstatement whould just promote atmosphere of antipathy and antagonism
"Under the doctrine of strained relations, the payment of separation pay is
considered an acceptable alternative to reinstatement when the latter option is no
longer desirable or viable.
b) Award of 3th month is improper
As per Torres v. Bank of San Juan
"Being a managerial employee, the petitioner is not entitled to 13th month pay. "
"Pursuant to Memorandum Order No. 28, managerial employees are exempt from
receiving such benefit without prejudice to the granting of other bonuses, in lieu of
the 13th month pay, to managerial employees upon the employer's discretion.
Harland B. Kemplin was illegally dismissed
Award of 13th month benefit is Deleted
In lieu of reinstatement, Separation pay, computed at rate of 1mo. for every year of
service, with a fraction of at least six (6) months considered as one whole year to be
reckoned from the time of his employment on March 1, 2002 until the finality of this
Decision.
UTP and Ariel D. Jersey are further ORDERED TO PAY Harland B. Kemplin legal

interest of six percent (6%) per annum of the total monetary awards computed from
the finality of this Decision until full satisfaction thereof.