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Republic of the Philippines

Department of Labor and Employment


NATIONAL LABOR RELATION COMMISSION
National Capital Region
Quezon City
CATHERINE
TOLENTINO
and
RAYMUND MILAN C. VIERNES,
Complainant,
-versusNCR-08-11862-11
COGNIZANT TECHNOLOGY
SOLUTIONS PHILIPPINES, INC. /
SRIRAM V. RAJAGOPAL,
Respondent.
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MEMORANDUM OF APPEAL
COMES NOW, complainant, RAYMUND MILAN C. VIERNES,
assisted by the Public Attorneys Office, through the undersigned
counsel and unto this Honorable Office, by way of appeal, most
respectfully moves for this Honorable Commission for the setting-aside
of the decision issued by the Honorable Labor Arbiter Corazon C.
Borbolla finding for respondents and humbly posits the following:
STATEMENT AND NDATURE OF THE CASE
1.

This

is

originally

complaint

for

illegal

dismissal

of

probationary employee, reinstatement, moral and exemplary damages,


and other relief.
2.

After a series of mandatory conferences, Complainant Catherine

Tolentino settled her claims with Respondents, while no amicable


settlement was reached with respect to Complainant Raymund Milan C.
Viernes; hence, they were required to submit their respective position

paper. After the submission of their position papers and appropriate


replies thereto, the case was submitted for resolution.
3.

On 29 June 2012, a DECISION was issued by Honorable Labor

Arbiter Corazon C. Borbolla, in favor of Respondent-Appellee and


against Complainant-Appellant, dismissing the case for lack of merit. A
copy of the decision is hereto attached as ANNEX A and made an
integral part of this memorandum.
4.

From the foregoing, Complainant-Appellant wishes to invite the

attention of this Honorable Commission to the existence of certain


facts of the case that the Honorable Labor Arbiter may have
overlooked in arriving at her Decision dated 29 June 2012. These facts,
if taken into consideration would effectively negate the finding that
complainant failed to meet the company standards during his
probationary employment, which was the basis for the dismissal of his
case. If these facts are not considered, the same would cause grave
and irreparable injury to the complainant-appellant. To this end, the
complainant humbly seeks the nullification of the said decision and the
consequent declaration that the complainant-appellant was illegally
dismissed.
TIMELINESS OF THE APPEAL

5.

Complainant-Appellant received the above-mentioned decision

on 23 July 2012. Pursuant to the 2011 NLRC Rules of Procedure,


complainant-appellant has ten (10) days from receipt of the decision
within which to file this appeal. Counting ten (10) days from said date,
the last day of filing a memorandum of appeal is 2 August 2012.
Hence, the filing of this memorandum is within the reglementary
period to file an appeal.
6.

As also required by the 2011 NLRC Rules of Procedure,

Complainant-Appellant paid the appeal fees.


THE PARTIES

7.

Complainant-Appellant, RAYMUND MILAN C. VIERNES, is of legal

age, Filipino, married and presently residing at 1656 Caton St., La Paz,
Makati City.
8.

Respondent COGNIZANT TECHNOLOGY SOLUTIONS PHILIPPINES,

INC. (Cognizant or Respondent Cognizant for brevity), is a business


entity located at 5th and 6th Floors, 810 Mckinley Building No. 8 Upper
Mckinley Road, Mckinley Town Center, Fort Bonifacio, Taguig City, while
respondent SRIRAM V. RAJAGOPAL (Respondent Rajagopal for brevity) is
the Vice President for Human Resources of Cognizant.
STATEMENT OF FACTS
9.

On 4 February 2011, Cognizant hired Complainant Viernes as a

probationary employee with the position of Senior Process Associate


Customer Support. Under his contract and employment agreement, he
was hired for a probationary period of six (6) months.
10.

Viernes was made to undergo several trainings required by

Cognizant, which he passed, and was eventually endorsed to


Operations.
11.

On 11 April 2011, he was assigned to the team of Mr. Aris

Roberto. Mr. Roberto explained the performance standards, or metrics,


which Viernes has to pass in line with Cognizants regularization and
confirmation standards.
12.

As explained to Viernes, he has to pass the company standards

set by Cognizant for his regularization. His performance is evaluated


through his metrics, which is computed through Scorecards. He will
have to secure an Overall Performance Rating between 2.00 and
4.00 (from Meets all Expectations to Exceeds all Expectations).
13.

Notably, the Scorecards of Viernes indicate that he

Meets all Expectations. His scorecards are marked as Annex C


to Annex E in Complainants Position Paper.
14.

Another factor in evaluating the performance of Viernes is based

on the employees and the immediate supervisors mutually collated


3

inputs, or assessments. This is done through a

Performance

Evaluation Form accomplished both by the employee and his


immediate supervisor on the third (3rd) and fifth (5th) month of their
tenure with Cognizant.
15.

Under the Employee Handbook (marked as Annex B of

Complainants Position Paper), a probationary employee shall undergo


performance evaluation and appraisal. The pertinent provision is
quoted below for the convenience of this Honorable Commission:
D. Performance Evaluation and Appraisal

Assessing performance provides an opportunity wherein a manager


and an associate may reach a mutual understanding of the results of
the associates performance for the predetermined period, as well as
an opportunity to validate how the associates performance compares
to the expectations initially identified.
The performance of all probationary associates shall be
evaluated by their immediate supervisors on the third (3rd)
and fifth (5th) month of their tenure with the Company.
Probationary associates shall assess their own performance by
accomplishing the Performance Evaluation form. This selfassessment shall be based on inputs from customers/clients, peers,
other associates, and available data as applicable, and must be made
as a comparison of the associates actual performance against
performance expectations. Accomplished forms must be submitted to
the associates immediate supervisor.
All people managers must assess the performance of their direct
reports. This assessment shall be based on inputs from the associates
customers/clients, peers, co-associates, available data, as applicable,
and self-assessment, and must be made as a comparison of the
associates actual performance against performance expectations.
All people managers are expected to conduct a formal closeddoor discussion with their direct reports individually to
communicate the details of the assessment, and finalize the
evaluation by accomplishing the performance evaluation form.
Upon reaching an agreement, the probationary associate and
the immediate supervisor shall sign off on the finalized
performance evaluation form. One copy shall be maintained by the
associate, another by the immediate supervisor and one copy must be
forwarded to the HR Talent Management Team for safekeeping in the
associates personal files.
All people managers shall upload their associates fifth (5th) month
performance rating on the Human Capital Management system
(HCM). (Employee Handbook p. 16; emphasis supplied)

16.

Allegedly, the performance evaluation mentioned above was not

observed during the tenure of Complainant-Appellant. Nonetheless, he

continued to diligently perform his duties as tasked by his supervisors.


He completed the tasks given to him for his regularization.
17.

To Viernes surprise however, Cognizant gave him a letter dated

2 August 2011 informing him that he is terminated effective


immediately for his failure to meet the standards of Cognizant. His
dismissal was without warning, proper evaluation/assessment as
discussed to him during his probationary employment, and without
prior notice.

ASSIGNMENT OF ERRORS AND/OR ISSUES


I.
THE HONORABLE LABOR ARBITER COMMITTED ERROR IN
ITS FINDINGS OF FACT TO SUPPORT ITS DECLARATION THAT
THE DISMISSAL OF THE COMPLAINANT-APPELLANT WAS
JUSTIFIED BECAUSE HE PERFORMED POORLY AND FAILED
TO MEET THE STANDARDS OF HIS EMPLOYER DURING HIS
PROBATIONARY EMPLOYMENT.
II.
THE HONORABLE LABOR ARBITER GRAVELY ABUSED ITS
DISCRETION WHEN IT DID NOT AWARD THE MONEY CLAIMS
OF COMPLAINANT-APPELLANT.

ARGUMENTS AND DISCUSSIONS


I. COMPLAINANT-APPELLANT WAS ILLEGALLY DISMISSED.
18.

It is most respectfully submitted that the Honorable Labor Arbiter

erred in declaring that Complainant-Appellants dismissal is justified


because

he

failed

to

meet

the

qualification

standard

set

by

Respondents-Appellee. Essential facts to this case were overlooked in


arriving at the Decision subject of this appeal. These facts, if
considered, would negate the finding of gross negligence on the part of
the complainant. It is the humble opinion of Complainant-Appellant
that the Honorable Labor Arbiter failed to consider the following facts:

A. It can be inferred from the score cards of ComplainantAppellant that he meets the standards of the company.
19.

Scorecards are given by Respondents to its probationary

employees showing the quantitative evaluation, in numerical value, of


their work for the month. It reflects the scores of a probationary
employee in different aspects of his employment and tasks to remind
them on specific factors that they need to improve at, if any.
20.

Attached as Annexes C to E of Complainants Position Paper

are the scorecards of Complainant Viernes for the months of April, May
and June 2011. Notably, all of these scorecards indicate that he meets
all expectations. This is clear indicia that he passed the metrics or
factors comprising the evaluation of a probationary employee.
21.

These scorecards were not denied by Respondents. While they

alleged

that

these

scores

only

represent

specific

months

of

Complainants tenure, no scorecards were given for the rest of the sixmonth term.
22.

The appealed decision based its findings solely on Complainants

coaching logs marked as Annexes C to G of Respondents Position


Paper. These, however, do not measure the overall evaluation of
Complainants performance. As these documents are appropriately
titled, they are reports to correct its employees and tell them how their
work should be done to teach them what to do. It is not unusual for a
new employee to adjust with his work while he is still learning the
ropes and policies of his new employer, such as the case of
Complainant.
23.

Significantly, these coaching logs were made on the months of

March, May and June 2011. It is clear, however, that Complainant


passed in his scorecards for May and June 2011. Simply put,
Complainant may have had a few errors in handling calls; nonetheless,
his scores still indicate that he meets all expectations. This further
bolsters the fact that Complainant improved the quality of his work
sufficient for him to meet what is expected of him. In fact, his
supervisor even commended Complainant for his improvement in a

Performance Feedback attached as Annex F of Complainants Position


Paper.
B. The procedure in assessing probationary employees, as
stated in the Employees Handbook, was not observed in
Complainant-Appellants evaluation.
24.

The Employees Handbook also provides for the procedure in the

evaluation of a probationary employee. This handbook was never


denied by Respondents. The pertinent text is quoted above in
paragraph 15.
25.

It is important to note that the provisions in this handbook are

deemed part of the contract between the company and complainant. 1


Hence, compliance in good faith should be observed as is any other
ordinary contract.
26.

Under the second paragraph of said provision, the performance

evaluation and assessment should be done on the 3rd and 5th month
of an employees tenure. None of these were followed in the case of
Complainant-Appellant.
27.

It is also provided under the third paragraph that a self-

performance evaluation made by the employee shall be conducted. No


such opportunity was provided to the Complainant-Appellant.
28.

People managers should have also conducted a formal closed-

door discussion to communicate the details of the assessment in


finalizing the evaluation. Again, it was not done in this case.

1. Your Employment Contract

xxx
Provisions with regard to the terms and conditions of your employment, renewal of
contract, scope of work, remuneration and benefits, social insurance and statutory
benefits, employment discipline, termination by the employer and/or employee,
confidentiality and compliance, training, breach liabilities and dispute resolutions not
specifically covered in the Employment Contract shall be governed by the provisions
indicated in the Employee Handbook. Thus, the policies and provisions
indicated here in this Employee Handbook are incorporated and are
considered as a part of your Employment Contract and shall thus
subsequently be basis for decisions to be made in relation to your
employment with Cognizant Technology Solutions Philippines, Inc.
(Employee Handbook p.7; emphasis supplied)

29.

To justify the dismissal of Complainant, Respondents crows that

Complainant failed his Performance Evaluation Form (Annex M of


Respondents Position Paper).
30.

While a Performance Evaluation Form was made, it was far from

being in conformity with the procedure explained during Complainants


orientation and as contained in the Employees Handbook. It was
prepared in a wanton manner to justify Complainants illegal dismissal.
31.

Only one performance evaluation form was prepared contrary to

the provision in the Employee Handbook that it should have been done
on the third and fifth month of the employees tenure.
32.

No close-door discussion was made in the finalization of the

Performance Evaluation Form as provided in the fifth and sixth


paragraph of the cited provision of the Employee Handbook.
33.

To excuse Respondents failure to follow its own company policies

and rules as contained in the Employee Handbook, they bank their


case on a Supreme Court ruling in Mendoza v. NLRC. However, the
same case says that strict observance of company procedures is not
required provided essential requirements of due process must
be observed.
34.

The most essential requirement of due process is the opportunity

to be heard. In the case of Complainant, he was not provided an


opportunity to participate in his final performance evaluation as
provided for in Respondents own Employee Handbook. In effect,
Respondent denied him his right to be heard.
35.

Had the foregoing facts been taken into consideration, the

decision would have found this case for what it is a case of illegal
dismissal.
36.

Consequently, Complainant-Appellant is entitled to reinstatement

and back wages from the time he was terminated, as well as moral and
exemplary damages.

II. COMPLAINANT-APPELLANT IS ENTITLED TO AT LEAST HIS


UNPAID WAGES FOR TWO WEEKS.
37.

There was grave abuse of discretion when the decision did not

include an order for at least the payment of two weeks worth of salary,
which Respondents have not yet given to Complainant because of the
filing of this case. This was also not repudiated by Respondents, when
they could have easily shown a receipt or document as proof that they
paid Complainants last salary.

PRAYER
WHEREFORE, premises considered, it is most respectfully prayed
of this Honorable Commission that an order be issued NULLIFYING and
SETTING ASIDE the Decision of the Honorable Labor Arbiter dated 29
June 2012 and in lieu thereof, an order be issued declaring the
complainant illegally dismissed and entitled to all his monetary claims,
including moral and exemplary damages.
Such other relief as may be deemed just and equitable under the
premises is likewise prayed for.
Respectfully submitted.
Makati City for Quezon City, 2nd day of August 2012.

PUBLIC ATTORNEYS OFFICE


NCR-Makati District Office
Counsel for the Complainants
16th Floor, Makati City Hall
Poblacion, Makati City

By:

ATTY. DAVID JULIAN G. PUZON


Public Attorney I
Roll No. 57304
9

Lifetime Member No. 010064


MCLE No. III-0013210

VERIFICATION / CERTIFICATION

I, RAYMUND MILAN C. VIERNES, of legal age, Filipino, and


presently residing at 1656 Caton St., La Paz, Makati City, after having
been duly sworn in accordance with law, hereby depose and state,
that:
1. I am the complainant-appellant in the above-entitled case.
2. I have caused the preparation of this Memorandum of Appeal,
read and understood the contents thereof, which is true and
correct of my own knowledge, belief and authenticity of the
documents;
3. I have not commenced any action or filed any claim involving
the same issues in any court, tribunal or quasi-judicial agency
and to the best of my knowledge, no such action or claim is
pending therein; and
4. Should I thereafter learn that the same or similar action or
claim has been filed or is pending, I would report such fact
within five (5) days therefrom.
IN WITNESS WHEREOF, I have hereunto affixed my signature
this 2nd day of August, 2012 at Makati City.
RAYMUND MILAN C. VIERNES
Affiant

SUBSCRIBED AND SWORN TO before me this 2nd day of


August, 2012 at Makati City, affiant exhibiting to me his Social Security
Identification No. 33-2886060-2 issued by the Social Security System.

ATTY. ANTHONY RONAR B.


CRUZ
Public Attorney II
10

Ex-Officio Notary Public


(Pursuant to R.A. 9406)
Copy furnished:
Cognizant Technology Solutions Phils., Inc.
Sriram V. Rajagopal
5/F and 6/F, 810 Upper Mckinley Bldg.,
No. 8 Upper Mckinley Road, Mckinley Town Center
Fort Bonifacio, Taguig City 1634

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