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VERSUS 05071-15
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MEMORANDUM OF APPEAL
COMES NOW complainant-appellant, by the undersigned counsel, unto
this Honorable Commission, most respectfully avers:
JURISDICTIONAL FACTS
1 On 10 September 2015, complainant-appellants counsel received a copy
of the Decision of the Hon. Labor Arbiter Marcial Galahad T. Makasiar in
NLRC-NCR Case No. 05-05071-15 entitled Arvin A. Pascual (Complainant)
vs. Sitel Philippines, et. al. (Respondents);
2 Thus, complainant-appellant has until 20 September 2015 within which to
file his
Appeal and Memorandum of Appeal which falls on a Sunday.
Complainant-appellant has therefore until 21 September 2015;
3 Complainant-appellant most respectfully appeals the Decision of the Hon.
Labor Arbiter to the Honorable Commission and submit the instant
Memorandum of Appeal;
4 In his Decision, the Hon. Labor Arbiter ruled, to wit:
ACCORDINGLY, the cause of action for illegal dismissal is
DENIED for lack of merit.
Respondent Sitel Philippines is ordered to release complainants
SALARY in the amount of Php14,738.69, subject to 5%
withholding tax upon payment/execution.
Complainants suspension is declared legal.
Memorandum of Appeal
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ASSIGNMENT OF ERRORS
6. The Hon. Labor Arbiter committed grave abuse of discretion in
rendering the above decision, committed serious errors in the findings of
facts as well as misapplication of law and jurisprudence in finding that:
A] Complainant-appellants five-day suspension is legal;
B]
Complainant-appellant was not legally and constructively
dismissed; and
C] Respondents-appellees are not guilty of illegal-constructive
dismissal when they illegally withheld the amount of Php14,738.69
from complainant-appellants salary.
7. Jurisprudence relied on by the Hon. Labor Arbiter is not applicable to
the present case:
August
DISCUSSIONS
1st ASSIGNMENT OF ERROR:
COMPLAINANT-APPELLANTS FIVE-DAY SUSPENSION IS LEGAL
8.
At the heart of the controversy is WHETHER COMPLAINANTAPPELLANT NEVER TOOK ACTION, AS WHAT RESPONDENTS-APPELLEES
MADE IT TO APPEAR, RELATIVE TO THE ALLEGED VIOLATION BY DIOSDADO
REMION OF COMCAST ZERO TOLERANCE POLICY AND WHO WAS
SUBSEQUENTLY PLACED ON OFF-THE-PHONE (FLOATING) STATUS EFFECTIVE
14 MAY 2014.
The answer is NO. The truth is that complainant-appellant, on his own
volition, coordinated with the Comcast Quality Team as evidenced by an
electronic mail correspondence dated 21 July 2014 (Annex D of
complainant-appellants reply).
As could be gleaned from the aforesaid
email, complainant-appellant requested for a transcription of the call
between Remion and the customer who accused the latter of exhibiting rude
behavior on 13 May 2014. But the Comcast Quality Team failed to provide
him with the transcript of call. The more than sixty (60) days of inaction by
respondents-appellees themselves rendered the retrieval of the call
impossible. The transcript of call is a condition precedent for the issuance of
CARE Form 1 (Notice to Explain). Briefly stated, without the transcript of call,
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Being unemployed, necessarily means that complainantappellants medical condition will be aggravated because he does not
have the financial means to pay for his medical expenses. Therefore,
the inescapable conclusion is that complainant-appellant gave up
employment with respondent-appellee Sitel because of the inhuman
treatment accorded him.
16.3 Furthermore, by way of safeguarding his (complainantappellant) constitutional right against deprivation of proprietary rights
to livelihood and employment without due process of law, he filed a
complaint with the National Labor Relations Commission (NLRC) on the
day immediately following the day he (complainant-appellant) sent an
electronic mail correspondence to respondent-appellee Lee Chief
Operating Officer of respondent-appellee Sitel informing respondentappellee Lee that he (complainant-appellant) is giving up employment
with Sitel albeit against his will.
In Peaflor vs. Outdoor Clothing Manufacturing Corporation (G.R.
No. 177114, 21 January 2010), the Supreme Court said:
XXX
Last but not the least, we have repeatedly given
significance in abandonment and constructive dismissal
cases to the employees reaction to the termination of his
employment and have asked the question:
is the
complaint against the employer merely a conveniently
afterthought subsequent to an abandonment or a
voluntary resignation? We find from the records that
Peaflor sought almost immediate official recourse to
contest his separation from service through a complaint for
illegal dismissal. This is not the act of one who voluntarily
resigned, his immediate complaints characterize him as
one who deeply felt that he had been wronged.
16.4
Finally, complainant-appellant never went through
respondent-appellee Sitels post-tender of resignation notice normal
process of securing clearance and vacating assigned locker/cabinet in
the production floor. He never surrendered his company identification
card neither his door access card. If complainant-appellant voluntarily
and willfully resigned, he will undoubtedly secure a post- employment
clearance certificate to facilitate employment in another company. In
the corporate world, submission of employment clearance issued by a
former employer is a common practice before an applicant is
eventually hired.
3rd ASSIGNMENT OF ERROR:
RESPONDENTS-APPELLEES ARE NOT GUILTY OF
ILLEGAL-CONSTRUCTIVE DISMISSAL WHEN THEY ILLEGALLY
WITHHELD THE AMOUNT OF PHP14,738.69 FROM COMPLAINANTAPPELLANTS SALARY.
17. Notwithstanding submission by complainant-appellant of medical
certificates issued by respondents-appellees accredited doctors and duly
verified by the latters clinic team, it
peremptorily withheld from
complainant-appellants salary the total amount of Php14,738.69 broken
down as follows:
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G.R. No.
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Memorandum of Appeal
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XXXX
Respondent did not properly exercise her management
prerogative when she withheld petitioners employment
without due process xxx Had respondent exercised the rules of
fair play, petitioner would have had the option of complying or
not complying with the medical certificate requirement having
full knowledge of the consequences of his actions. Respondent
failed to do so and she cannot now hide behind the defense that
there was no illegal termination because petitioner cannot show
proof that he had been illegally dismissed. (emphasis supplied)
PRAYER
WHEREFORE, premises considered, it is hereby respectfully prayed
that the Decision of the Hon. Labor Arbiter Makasiar be reversed and set
aside and a new one be issued, as follows:
to
jointly
and
severally
pay
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