Republic of the Philippines NATIONAL LABOR RELATIONS COMMISSION Regional Arbitration Branch No.

VIII Tacloban City SERGIO B. REYES, Complainant, -versusBURAUEN QUALITY BREAD BAKESHOP, Respondent, x---------------------x RAB VIII Case No. 01- 00005 - 11

POSITION PAPER
COMPLAINANT by the undersigned counsel and unto this Honorable Labor Arbitration Office, most respectfully submits this position paper and avers the following to wit: PREFATORY STATEMENT The Complainant in this case is SERGIO B. REYES, of legal age, married, with post office address at District 1, San Ramon St., Burauen, Leyte where he could be served with summons and other legal processes of this Honorable Office. The Respondent is BURAUEN QUALITY BREAD BAKESHOP, a business establishment owned by Dyna and managed by Nilda A. Roca, with business address at San Luis St., Burauen, Leyte, where the said establishment and representative could be served with summons and other legal processes of this Honorable Office. STATEMENT OF FACTS The Complainant was formerly a regular employee as baker of Respondent Burauen Quality Bread Bakeshop since January 1, 2003. The business undertaking of the said Respondent is to sell bread to the public which Complainant prepares in the premises of the Respondent. A copy of the Identification Card issued by the Respondent to the Complainant is hereto attached as Annex A as proof of the latters employment.

The Complainant worked for seven (7) days a week with no rest day or day-off. He worked for 9 hours per day with no overtime pay. He was also made to work on holidays without holiday/premium pay, with the exception of the following holidays for which there was no work, to wit: Christmas day, New Years day, Good Friday and on December 8, which is the fiesta of Burauen, Leyte. The starting salary of Complainant was Php 100.00 per day. In the year 2005, this was increased to Php 110.00 per day. Then, in 2006, his daily wage was increased to Php 115.00. In the year 2007 near the month of December, his daily wage was increased to Php 120.00 and in the year 2008, his daily wage was again increased to Php 135.00. In the year 2009, his daily wage was again increased to Php 140.00 and on January 2010, Complainants daily wage was again increased to Php 150.00 until he was illegally terminated on December 6, 2010. All of the aforementioned daily wage rates are below the prevailing minimum wage mandated by law and given effect by the various applicable Wage Orders issued by the Regional Tripartite Wages and Productivity Board VIII. However, during paydays on the 15th and on the last day of the month, the Complainant was made to sign in a blank payroll consisting of two sheets of paper and then in a separate paper containing the actual amount received as salary. Hence, it is possible that the Respondent can produce a payroll signed by the Complainant containing entries of wage which is at par or more than the prevailing minimum wage as it is easy to fill in the desired entries of the amount of wage on the blank but presigned payroll. Likewise, Complainant was not given the yearly service incentive leave of five days with pay in accordance to Article 95 of the Labor Code. On December 6, 2010, Complainant was verbally terminated without due process from his work by Dyna, the owner of the Burauen Quality Bread Bakeshop. The Complainant was not given his 13th month pay for the year 2010, although in the previous years, he was given such every December.

Likewise, his salary for the period of December 1-6, 2010 was not given to him. That as a result of the unjust termination of employment of the Complainants by the Respondent, the former suffered mental anguish, sleepless nights, wounded feelings, serious anxiety, moral shock, and social humiliation, especially concerning the daily sustenance of his family. In support of the foregoing allegations is the Affidavit of the herein Complainant dated February 17, 2011 which is attached and made integral part of this Position Paper as Annex B, as well as his verified Complaint dated January 10, 2011 which is on the records of this case. ISSUES 1. WHETHER OR NOT THE COMPLAINANT WAS ILLEGALLY DISMISSED AND WHETHER OR NOT THE COMPLAINANT WAS AFFORDED THE PROCEDURAL DUE PROCESS. 2. WHETHER OR NOT COMPLAINANT IS ENTITLED TO SERVICE INCENTIVE LEAVE PAY, HOLIDAY PAY, REST DAY PAY AND OVERTIME PAY. 3. WHETHER OR NOT THE COMPLAINANT WAS UNDERPAID. 4. WHETHER OR NOT, THE RESPONDENT IS LIABLE TO THE COMPLAINANT FOR NOMINAL DAMAGES AND MORAL DAMAGES. FIRST ISSUE: (Illegal Dismissal and no Procedural Due Process) From the foregoing facts, it is clear that the dismissal of the complainant was illegal thus he should be paid of his separation pay as provided by law. Also, no procedural process was accorded to him prior to his termination from service. Insofar as the procedural due process is concerned, Article 277 (b) of the Labor Code specifically requires the employer to furnish the worker or employee sought to be dismissed with two written notice, i.e., a notice

which apprises the employee of the particular acts or omission for which his dismissal is sought, and a subsequent notice which informs the employee of the employers decision to dismiss him (Kiamco vs. NLRC, G.R. No. 129449, June 29, 1999). In this instant case, clearly the complainant was not afforded of the procedural due process accorded by law because he was simply verbally fired from his employment. In addition, (I)t must be borne in mind that the basic principle in termination cases is that the burden of proof rests upon the employer to show that the dismissal is for just and valid cause, and failure to do so would necessarily mean that the dismissal was not justified and, therefore, was illegal [Polymedic General Hospital v. NLRC, G.R. No. 64190, January 31, 1985, 134 SCRA 420; and also Article 277 of the Labor Code]. SECOND ISSUE: (SERVICE INCENTIVE LEAVE PAY, HOLIDAY PAY, REST DAY PAY, OVERTIME PAY) As to the entitlement of service incentive leave pay, rest day pay and holiday pay premiums, the Complainant believes that he is entitled to the same just like all other regular employees and as guaranteed by the Labor Code of the Philippines. The complainant was deprived of his service incentive leave pay, holiday and rest day premium pay. The Labor Code provides for an 8-hour normal hours of work pursuant to Art. 83 thereof and work rendered in excess of 8 hours should be paid the overtime pay in accordance with Art. 87. pay. THIRD ISSUE (UNDERPAYMENT OF SALARY) The Complainant was underpaid throughout his employment with the Respondent. For instance, when he was receiving a daily wage of Php 100.00 in 2004 when Wage Order No. RB VIII-11 took effect, the minimum daily wage mandated was already Php 195.00. The subsequent daily wage increases granted to the Complainant over the years was not able to Inasmuch as the Complainant rendered 9 hours per day of work, he is entitled to overtime

reach the amount prescribed in the aforementioned wage order which has since been superseded by subsequent wage orders. The Complainant respectfully submit that he should have been receiving the daily minimum wage so provided by the wage orders issued by the Regional Tripartite Wages and Productivity Board VIII and considering that he has not received the legal wage mandated by law, he should be paid the salary differential. FIFTH ISSUE: (NOMINAL DAMAGES, EXEMPLARY DAMAGES AND MORAL DAMAGES) Cleary, the Respondent violated the statutory right of the herein complainant i.e. his right to be furnished of the two written notice prior to dismissal as specifically provided by Article 277 (b) of the Labor Code of the Philippines. In a case like this, the proper award is nominal damages under the Civil Code as it is aimed to vindicate the right to procedural due process violated by the employer. In the case of Jenny Agabon and Virgilio Agabon vs. NLRC (G.R. No. 158693, November 17, 2004), for lack of statutory due process, the employer was ordered to indemnify the employee for the violation of his statutory right which warrants the indemnity in the form of nominal damages. Likewise the herein Complainant is entitled to moral damages because the dismissal of the complainant was attended by bad faith of constitutive of an act oppressive to labor. In the case of Lim vs. National Labor Relations Commission [GR No. 79907 March 16, 1989], the Supreme Court uphold the award of moral as well as exemplary damages in view of the bad faith attendant to the treatment of the employee. In the instant case, there is no other plausible explanation for the acts (or its conspicuous absence) of the Respondent of the manner wherein the Complainant was deprived of his employment except bad faith. PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Labor Arbiter, that decision be rendered, to wit: 1. Declaring the termination of the herein Complainant as illegal and further, ordering Respondent to pay unto the Complainant separation pay, the 13th month pay for the year 2010 and his salary for December 1 to 6, 2010. 2. Ordering the Respondent to pay to the Complainant the salary differential due to him. 3. Ordering the Respondent to pay to the Complainant his SERVICE INCENTIVE LEAVE PAY, HOLIDAY PAY, REST DAY PREMIUM PAY AND OVERTIME PAY that were all deprived from him during his entire employment with the Respondent. 4. Furthermore, it is likewise prayed unto the Honorable Labor Arbiter to order the Respondent to pay the herein Complainant nominal damages in the amount of Php 10,000.00 for not affording to the complainant the procedural due process, the amount of Php 100,000.00 as moral damages and the amount of Php 50,000.00 as exemplary damages. Other reliefs just and equitable under the premises are also prayed for. RESPECTFULLY SUBMITTED. Tacloban City, February 24, 2011. The PUBLIC ATTORNEYS OFFICE (Counsel for the Complainant) Tacloban District Office Bulwagan ng Katarungan Magsaysay Blvd., Tacloban City By: NEMITZ F. NEGADO Public Attorney II Roll of Attorneys No. 40747 IBP No. 05045 (Lifetime) MCLE Compliance No. III - 0017029 (June 2, 2010)

Copy furnished: (by Registered Mail) NILDA L. ROCA Burauen Quality Bread Bakeshop Registry Receipt No._________ Date Mailed:_______________

San Luis Street

Burauen, Leyte

(VERIFICATION ON THE NEXT PAGE)