Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION Regional Arbitration Branch No.

XI Davao City MELINDO C. BESAGAS, Complainant, -versusCLAIMS CATENA SECURITY INCORPORATED/ GEROLD G. JOSUE, GENERAL MANAGER/ ABOITIZ TRANSPORT SYSTEM CORPORATION/ ANTHONY URETA, OPERATIONS MANAGER, Respondents. x-------------------------------------------------x x-------------------------------------------------x NLRC RAB XI-05-00527-10 For: ILLEGAL DISMISSAL AND MONEY

POSITION PAPER
Complainant, through the undersigned counsel, respectfully submits unto this Honorable Office this Position paper.

PREFARATORY STATEMENT

This is a case for illegal dismissal with money claims, where Catena Security Agency owned by the Aboitiz Transport System illegally dismissed herein complainant.

THE PARTIES

Complainant MELINDO C. BESAGAS is of legal age, Filipino, and a resident of Purok 1, Kinawitnon, Island Garden City of Samal, Davao del Norte.

Respondent, CATENA SECURITY INC. (hereafter referred as CSI for brevity), is a security agency existing under Philippine laws and is duly registered with the Securities and Exchange Commission (SEC). It is engaged in the business of providing security services to its clientele. CSIs principal office is at 2nd Floor WG&A Bldg., Pier 4, North Harbor, Tondo, Manila and has a branch office at Door 2MDC Bldg., Cabaguio Ave., Davao City where it may be served copies of orders, notices, and processes of this Honorable Office. Respondent GEROLD G. JOSUE is the General Manager of CSI. Respondent ABOITIZ TRANSPORT SYSTEM CORPORATION,

(hereafter referred as ATSC for brevity), on the other hand, is a corporation existing under Philippine laws with its principal office at Times Plaza Bldg. U.N. Ave. and Taft Ave., Ermita, Manila. It has a branch office at Km. 9, Sasa, Davao City, where it may be served copies of orders, notices, and processes of this Honorable Office. Respondent ANTHONY URETA is the Operations Manager of ATSCs branch office in Davao City.

THE ANTECEDENT FACTS 1. Complainant was employed as a security guard by Respondent CSI on June 1, 2005. 2. Complainants employment contract, ID and pay slips serve as proof of his employment with CSI. Copies of which are attached hereto as Annexes A-D. 3. Complainant was detailed as a security guard at ATSCs branch office at Km. 9, Sasa, Davao City pursuant to the Contract for Guarding Services between Respondents CSI and ATSC. 4. Complainant is paid every 15 days. 5. From June to August 2009, Complainant noticed on his pay slips that an

additional item called Other Deductions at the amount of P1,469.21 was deducted from his pay. He was not given any explanation as to the reason for the deduction. 6. Angered by this, Complainant threatened to take the matters to the Labor Arbiter if the matter was not fixed. 7. Respondent CSI was able to return to the Complainant the amount deducted from his pay however this incident caused strained relations between the parties. 8. On Nov. 4, 2009, Sherwin Pareja, the boarding officer of ATSC reported to Jerson Balingit, the Security In-charge of CSI, claimed that he found Complainant asleep at around 9:00 PM at his post at the main entrance gate. 9. Mr. Balingit filed a report of the incident to Respondent Ureta on Nov. 5, 2009 citing that Complainant was caught sleeping on duty which is a violation of regulation. Copy of which is attached hereto as Annex E. 10. Respondent CSI through Mr. Garry Gonzales, the Asst. Operations Officer-Mindanao, sent Complainant a Notice to Explain on Nov. 5, 2009 requiring the latter to explain within 24 hours upon receipt why no disciplinary action be meted against him. Copy of which is attached hereto as Annex F. 11. However the Complainant refused to comply, thus, Mr. Balingit filed on Nov. 6, 2009 a report to Mr. Gonzales about his refusal. Copy of which is attached hereto as Annex G. 12. On Nov. 9, 2009 Respondent CSI sent a Memorandum to the

Complainant recalling him from his post effective Nov. 12, 2009 and directing him to report to CSI for investigation of his infraction. 13. Complainant was placed on floating status after being relieved

from his post at ASTC. Until now Complainant has not been detailed to

any new post.

ISSUES The issues in this case are as follows: (1)Whether or not the Complainant was illegally dismissed. (2) Whether or not the Complainant is entitled to reinstatement and backwages (3)Whether or not the Complainant is entitled to moral and exemplary damages.

ARGUMENTS AND DISCUSSIONS ON THE FIRST ISSUE: The Complainant was illegally dismissed. At the outset, it must be stressed that Complainant was a regular employee of CATENA SECURITY INC. (CSI) Article 280 of the Labor Code of the Philippines provides:
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, xxx 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. (Emphasis supplied).

In determining the existence of an employer-employee relationship, the following elements must be considered: (1) the selection and

engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employees conduct. Of these elements, the most important criterion is whether the employer controls or has reserved the right to control the employee not only as to the result of the work but also as to the means and methods by which the result is to be accomplished. By virtue of the nature of his employment as security guard, such employment is usually necessary or desirable in the usual business or trade of CSI (which is engaged in the business of security agency), and by the sheer length of his service at CSI , which obviously exceeded the statutory period of at least one (1) year of service, the Complainant was indeed a regular employee of CSI. As regular employee, Complainant is entitled to a security of tenure and cannot be legally dismissed from his employment absent any just or authorized cause. Security of tenure is a right, which may not be denied on mere speculation of any unclear and nebulous basis.1 Both the 1987 Philippine Constitution (Article XIII, Section 3) and the Labor Code of the Philippines (Article 279) assures the right of workers to a security of tenure, to wit: Art. XIII, Sec. 3. xxx They shall be entitled to security of
tenure, humane conditions of work, and a living wage. xxx Art. 279. Security of Tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or authorized by this Title.
1

Escareal vs. National Labor Relations Commission (G.R. No. 99359, September 2, 1992)

xxx

The termination of the Complainant, in this case, were founded on neither of the two aforementioned causes. Article 282 of the Labor Code of the Philippines states:
Art. 282. Termination by Employer. An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employer of his duties; (c) Fraud or willful breach by the employer of the trust reposed in him by his employer or duly authorized representative; (d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and (e) Other causes analogous to the foregoing.

While it is managements prerogative to dismiss an employee, it must nevertheless be done without abuse of discretion because what is at stake is not only the employees position but also his means of livelihood. As established in the case of Santos vs. NLRC, G.R. No. 76991, October 28, 1998, viz:
While an employer has its own interests to protect, and pursuant thereto, it may terminate a managerial employee for a just cause, such prerogative to dismiss or lay-off an employee must be exercised without abuse of discretion its implementation should be tempered with compassion and understanding. The employer should bear in mind that in the execution of said prerogative, what is at stake is not only the

employees position but his livelihood.

Termination involves two facets: (a) the legality of the act of dismissal, and (b) the legality in the manner of dismissal. The illegality of the act of dismissal constitutes discharge without just cause (substantive facet) while the illegality in the manner of dismissal is termination without due process (procedural facet).2 Article 282 of the Labor Code of the Philippines provides for termination for just causes and in accordance with due process

requirements, namely: notice and opportunity to be heard. In this case, the fact that the Complainant is in floating status for more than 6 months, it can be considered that he was illegally dismissed by the respondent CSI. The Supreme Court held in the case of Agro Commercial Security Services Agency Inc vs NLRC, G.R. Nos. 82823-24, July 31, 1989 that although 'floating status" is not unusual for security guards employed in security agencies as their assignments primarily depend on the contracts entered into by the agency with third parties and thus lawful, the "floating status" of such an employee should last only for a reasonable time. When the "floating status" of said employees lasts for more than six (6) months, they may be considered to have been illegally dismissed from the service. Thus, they are entitled to the corresponding benefits for their separation. ON THE SECOND ISSUE: The Complainant is entitled to reinstatement with backwages. Since the Complainant was illegally dismissed from his employment, he is entitled to reinstatement plus backwages. Article 279 of the Labor Code of the Philippines provides that an employee who is unjustly dismissed from work is entitled to reinstatement
2

Bolinao Security and Investigation Service, Inc. vs. Toston (G.R. No. 139135, January 29, 2004)

without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. If reinstatement is no longer feasible, separation pay, equivalent to one (1) month salary for every year of service, should be awarded as an alternative plus backwages.3 In this case reinstatement is no longer feasible since there is already strained relation between the parties. Thus, CSI must pay the Complainant backwages and separation pay in lieu of reinstatement.

ON THE THIRD ISSUE: The Complainant is entitled to moral and exemplary damages. Given this set of facts, CSI is, therefore, liable to the Complainants for moral and exemplary damages. Moral damages are recoverable in dismissal cases only where the dismissal was attended with bad faith or fraud or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs, or public policy. Exemplary damages in dismissal cases maybe awarded only if the dismissal was effected in wanton, oppressive or malevolent manner.4 The fact that the dismissal of the Complainant was done in bad faith is discernable from the premises, CSI is, therefore, liable for moral damages to them. More so, because of the incident, the Complainant suffered mental anguish, sleepless nights, and wounded feelings because of having no work to support his family caused by being on a floating status for more than 6
3

A. Labor, et al. vs. NLRC, Gold City Commercial Complex, Inc., et al. (G.R. No. 110388, September 14, 1995) 4 Jose Garcia et al. vs. National Labor Relations Commission (G.R. No. 110518, August 1, 1994)

months. Respondent acted in bad faith in putting the Complainant in floating status for more than 6 months despite the possibility of availability of post where Complainant may be assigned within the time period. The Supreme Court held in the case of Pido vs NLRC, G.R. No. 169812, February 23, 2007, viz: When a security guard is placed on a "floating status," he does not receive any salary or financial benefit provided by law. Due to the grim economic consequences to the employee, the employer should bear the burden of proving that there are no posts available to which the employee temporarily out of work can be assigned. Complainant is indeed entitled to moral damages, as well as exemplary damages to serve as an example to the public, which amount this Honorable Commission may fix.

PRAYER WHEREFORE, premises considered, it is most respectfully prayed that this Honorable Office render judgment declaring herein Complainants DISMISSAL WERE ILLEGAL, and order Respondent to REINSTATE the Complainant and pay him: 1. 2. 3. Backwages Moral and Exemplary Damages Other monetary claims

In the event reinstatement is not possible, Respondent shall be ordered to pay Complainant his separation pay plus backwages. RESPECTFULLY SUBMITTED this 3rd day of August 2010 in Davao

City, Philippines.

ATENEO LEGAL SERVICES OFFICE Counsel for the Complainant 2F Dotterweich Hall Jacinto Street, Davao City 8000 Tel. No. (082) 227-7460 BY: Jose Karlo Caballero Karen Cate Ilagan Christian Paul Pinote Charnem Caete Hanna Jane Pernes Adelaine Faith Zerna

Legal Interns (as per Supreme Court Resolution No. 449 Dated September 29, 1988)

Under the Control and Supervision of:

Atty. Manuel P. Quibod Roll of Attorneys No. 33499 PTR No. 8442955, 01-04-10, D.C. IBP Lifetime Member Roll No. 00996 MCLE Exemption No. III-00745