Vous êtes sur la page 1sur 16

Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION


National Capital Region
Quezon City
ARVIN A. PASCUAL,
Complainant-Appellant,
-

VERSUS 05071-15

NLRC NCR Case No. NCR-05-

SITEL PHILIPPINES and/or


MICHAEL LEE,
ASWIN SUKUMAR,
PHOEBE MONICA ARGANA
REMIL CANDA, and
AMOR REYES,
Respondents-Appellees.

x-------------------------------------------------------------------------------------------------------x

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

Page 1 of 15

5 The Hon. Labor Arbiter committed grave abuse of discretion in rendering


the above decision and committed serious errors in the findings of facts
which, if not corrected, would cause grave or irreparable damage or injury
to the complainant-appellant as discussed in the Assignment of Errors and
Discussions below:

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

A] The case of Verdadero vs. Barney Autolines, G.R. No. 195428, 29


2012 is not applicable to the present case.

B] The case of Gimena vs. Bankwise, Inc., G.R. No. 175365, 23


October 2013
is not applicable to the present case.

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,
Memorandum of Appeal

Page 2 of 15

there is no case against Remion. No notice to explain (Sitel CARE Form 1)


could be served to Remion.
In the light of the foregoing circumstances, there is absolute absence
of cause of action on the part of respondents-appellees to have imposed a
five-day suspension against complainant-appellant.
9. Additionally, respondents-appellees committed serious violation of
complainant-appellants statutory and constitutional right to due process
through a string of nefarious acts which further rendered the five-day
suspension illegal. Hereunder, is a summary:
9.1)
Respondents-appellees flagrantly violated
Conduct as well as prevailing jurisprudence, as follows:

its own Code of

9.1.1) Respondent-appellee Arganas Corrective Action Record


(CARE) Form 2 [Notice of Decision] dated 21 November 2014 is
void for failing to conform with the following procedural
guidelines setforth in Sitel Code of Conduct (p.24), as follows:
(f) The HR Department through ER/LR shall prepare
a memo indicating the dates of suspension which
would be on a continuous basis, duly noted by the
Regional ER/LR Manager and the Operations Director
stating that re-occurrence of the act will mean a
longer suspension period or dismissal from the
Company.
The Notice of Decision bears respondent-appellee Arganas
signature
alone.
It does not bear the signatures of the
Regional ER/LR Manager and the Operations Director.
9.1.2) Sitels Code of Conduct (F. Documentation, Appendix 5,
pp.27-28) mandates that a waiver of right to be heard in an
administrative investigation must be in writing. It requires that
complainant-appellant should have been required to accomplish
an Administrative Investigation Waiver Form. The fact is that
respondents-appellees never required complainant-appellant to
accomplish an Administrative Investigation Waiver Form.
9.1.3) The case of Surigao del Norte Electric Cooperative vs.
Gonzaga, G.R. No. 187722 [June 10, 2013] is instructive because
the Supreme Court said
Company policies or practices are binding on the
parties. Some can ripen into an obligation on the part
of the employer, such as those which confer benefits
on employees or regulate the procedures and
requirements for their termination.
XXXX
By analogy, the Court finds that the same principle
should apply to the case at bar for the reason that an
employers breach of its own company procedure is
equally violative of the laborers rights, albeit not
statutory in source xxx

Memorandum of Appeal

Page 3 of 15

9.1.4) The Management Committee of Sitel promulgated the


Code of Conduct for a four-pronged objectives (page 2). Two of
which are: (a) To establish the proper policies and procedures in
the conduct of administrative investigations before any form of
disciplinary action/s can be taken; and (b) To establish the proper
policies and procedures in the conduct of Administrative
Investigations before any form of disciplinary action/s can be
taken. Clearly, the violations of respondents-appellees described
in #9.1.1 and #9.1.2 above are infringements of the
fundamental reasons why Sitels Management Committee
promulgated the Code of Conduct.
9.2) Respondents-appellees prevented complainant-appellant from
participating in the administrative hearing by exhibiting cold disdain to
all of complainant-appellants requests in contravention of prevailing
law and
jurisprudence.
Among these requests which were
contumaciously denied by respondents-appellees are:
9.2.1) To be provided with copies of all documents, records, and
evidence against complainant-appellant in the possession of
respondents-appellees.
Respondents-appellees denial of complainant-appellants
request for documents contravened prevailing jurisprudence. In
Prudential Guarantee and Assurance Employee Labor Union vs.
NLRC, G.R. No. 185335 [June 13, 2012], the Supreme Court
reiterated its explanation regarding the concept of ample
opportunity to be heard in the case of Perez v. Philippine
Telegraph and Telephone Company (G.R. No. 152048, April 7,
2009) that the employee may also ask the employer to
provide him copy of records material to his defense.
9.2.2) To be given with a written clarification what exactly is the
scope or meaning of the phrase xxx to assist you during the
administrative hearing. In other words, complainantappellant would like to be informed clearly how far could his
counsel participate in the administrative hearing. Simply put,
extent or level of counsels participation.
Respondents-appellees denial of complainant-appellants
request contravened prevailing jurisprudence.
In Lorlene A. Gonzales vs. NLRC and Ateneo de Davao
University, G.R. No. 125735 [August 26, 1999],
Petitioner Lorlene Gonzales refused to take part in the
investigation unless the rules of procedure laid down
by the Investigating Committee be revised, contending
that the same were violative of her right to due
process. Petitioner specifically objected to the provision
which stated: . . . 3) Counsel for Ms. Lorlene Gonzales
shall not directly participate in the investigation but
will merely advise Ms. Gonzales.
But the Committee was steadfast in its resolve to adopt
the aforementioned rules.
Over the objection of
petitioner the Committee commenced with its
Memorandum of Appeal

Page 4 of 15

investigation without petitioners participation. On 10


November 1993 private respondent served a Notice of
Termination on petitioner pursuant to the findings and
recommendation of the Committee. A serious violation
of petitioner's statutory and constitutional right to due
process that ultimately vitiated the investigation,
according to the Supreme Court.
2nd ASSIGNMENT OF ERROR:
COMPLAINANT-APPELLANT WAS NOT
ILLEGALLY AND CONSTRUCTIVELY DISMISSED
10. The Hon. Labor Arbiter reasoned out that There was no intention
on the part of respondent Sitel to sever complainants employment since a
five-day suspension was imposed for his infraction instead of dismissal (p.7
of Decision).
With all due respect, it was serious error for the Hon. Labor Arbiter to
have found that complainant-appellant was not illegally/constructively
dismissed solely because of the foregoing ratiocination.
Jurisprudential
guide is that whether or not an employee was compelled to resign is
determined not merely on the basis of a single isolated act or circumstance,
the acts of the employee before and after the alleged resignation must be
considered in determining whether he or she, in fact, intended to sever his or
her employment. (Nationwide Security and Allied Services, Inc. vs.
Valderama, G.R. No. 186614 [February 23, 2011])
11. It bears stressing that CARE Form 1 (Notice to Explain[NTE]) which
was first served to complainant-appellant on 15 October 2014 carries a
penalty of suspension only. Suddenly, it was retrieved on 18 October
2014 and replaced with a new one antedated 9 October 2014. It carries a
penalty of termination already.
On the same occasion that respondents-appellees served the Revised
and Antedated NTE to complainant-appellant, respondents-appellees also
informed complainant-appellant that an administrative investigation is
already scheduled on 23 October 2014. So that respondents-appellees
illegally and bluntly suggested to complainant-appellant Hearing yan for
termination. Unahan mo na.
12. In view of the foregoing baffling development, there is no reason
for complainant-appellant to be grateful that the penalty of termination of
employment was reconsidered and commuted to 5-day suspension only. The
5-day suspension was not because respondents-appellees were light-handed
in its approach towards complainant-appellants situation as stated in the
Hon. Labor Arbiters decision. In reality, it was a mere afterthought if not a
clever subterfuge to mask respondents-appellees ultimate goal to rid itself
of complainant-appellant which was obviously already decided upon. They
(respondents-appellees) realized in the end that they cannot implement with
semblance of legality the instruction of respondent-appellee Canda to
eliminate complainant-appellant by seeking cover under the pertinent
provisions of The Labor Code of the Philippines on terminating employeremployee relationship by means of just cause. The recourse by complainantappellant to all means necessary within the limits of the law to safeguard his
(complainant-appellant) constitutional right to security of tenure prevented
respondents-appellees to do away with complainant-appellant.
Memorandum of Appeal

Page 5 of 15

13. The following unbroken chain of factual circumstances, established


through documentary evidences, are workplace scenarios that will negate
existence of just and humane working environment which compelled
complainant-appellant to resign:
13.1) foremost is the fact of complainant-appellants 5-day illegal
suspension and all acts by respondents-appellees prior to and
contemporaneous
with the service of the five-day suspension notice;
13.2) the fact that former Operations Manager Glenn Kuan
pressured complainant-appellant on 18 October 2014 to resign;
13.3) the fact that on 25 November 2014, complainant-appellant
filed a grievance in relation to the five day suspension jointly
imposed on him by respondents-appellees Sukumar, Argana and
Reyes. Complainant-appellant sent his grievance notice via electronic
mail correspondence to (but said grievance notice was treated
with cold disdain by) respondent-appellee Sukumar;
13.4) the fact that respondents-appellees peremptorily deducted
the amount of Php6,896.50 from complainant-appellant salary due on
28 November 2014. To substantiate the illegal deduction, respondentsappellees suppressed the verified medical certificates submitted by
complainant-appellant;
13.5) the fact of respondents-appellees Arganas and Lees
contumacious refusal to issue complainant-appellants certificate of
employment despite written demands;
13.6)
the fact that respondent-appellee Reyes humiliated
complainant-appellant on 3 December 2014 when he submitted the
Reply to CARE form 1 (Notice to Explain) that respondent-appellee
Reyes served to complainant-appellant on 2 December 2014 with stern
warning that should complainant-appellant fail to submit his written
explanation within 24 hours only, the latter will be suspended. During
that occasion, Respondent-appellee Reyes tongue-lashed complainantappellant, i.e., Arvin, do you believed that you are worthy of
any explanation!;
13.7) the fact that complainant-appellants plea for one day
deferment so that he could consult his legal counsel before he
acknowledge receipt the 5-day suspension notice that respondentappellee Sukumar was compelling him to accept on 21 November 2014
irritated the latter. As a consequence thereof, sarcastically made a
remark against complainant-appellant, i.e., Dont you have your
own mind that you still need legal advice before you affix your
signature in the suspension notice!;
13.8 Respondents-appellees maliciously suppressed the email
correspondence of Zaldy Expanola dated 29 June 2014 addressed to
Shiela Morales (HR Assistant of respondent-appellee Argana) copy
circulated to respondents-appellees Reyes and Canda. Contents of
aforesaid email reproduced below:

Memorandum of Appeal

Page 6 of 15

Aforesaid email (marked Annex C in complainant-appellant reply)


confirmed as absolute falsity respondents-appellees fabricated theory
that they only learn that Remion is unproductive on July 2014. This
email clearly shows that long before complainant-appellants
appointment as coach-supervisor of Remion, the latter was already on
off-the-phone (floating) status receiving salary nevertheless doing
nothing.
Respondents-appellees had to suppressed this email because
they do not want to be held accountable under the following provisions
of Sitel Code of Conduct (p.8), as follows:
I. FUNDAMENTAL RESPONSIBILITIES
2. The supervisors and Operation/Department Managers
shall be principally responsible for initiating actions as well
as reporting violation of Company Rules and Regulations
within 72 hours from the time of discovery or knowledge of
the offense.
Serious offenses, which are those
punishable by dismissal, must be acted upon within
forty eight (48) hours.
Respondents-appellees could not bear the thought that being
managers and senior manager they would be penalized for gross
negligence in the performance of duties. There is no better escape
goat and later on as sacrificial lamb but herein complainant-appellant.
Respondents-appellees knew what was coming. In order to save their
neck, they had to devise a scheme to pass all the blame to
complainant-appellant. Thus, they displayed the kind of conduct all of
which were punitive in nature and offensive to elementary norms of
justice and fair play (e.g. infringement of constitutional right to due
process, insults, coercion, discrimination, illegal deduction from salary,
imposition of misplaced superiority, etc.) so that complainant-appellant
would be compelled to leave respondent-appellee Sitel.
13.9 Respondents-appellees Lee and Argana contumaciously
refused to release the salary of complainant-appellant with total
amount of Php14,738.69 covering the period November 6 up to

Memorandum of Appeal

Page 7 of 15

December 5, 2014 without offering any legal or plausible reason


despite written demands by complainant-appellant.
14. Truly, complainant-appellant submitted a resignation letter. The
contents thereof are fraught with colors of gripes, disappointments,
frustrations and heartaches against respondents-appellees. Contents that
would undeniably reveal that the element of voluntariness is absent.
Complainant-appellants resignation, in fact, is with immediate effect
because the hostility and antagonism waged against him by respondentsappellees became so unbearable that complainant-appellant could not take
it any minute longer. Article 299 (b) (1) of The Labor Code provides that an
employee who was subjected to serious insult by the employer or his
representative could resign effective immediately. There is no necessity to
give 30 days prior notice.
15. In Peaflor vs. Outdoor Clothing Manufacturing Corporation (G.R.
No. 177114, 13 April 2010), the Supreme Court said:
While the letter states that Peaflors resignation was
irrevocable, it does not necessarily signify that it was
also voluntarily executed. Precisely because of the
attendant
hostile
and
discriminatory
working
environment, Peaflor decided to permanently sever his
ties with Outdoor Clothing. This falls squarely within the
concept of constructive dismissal that jurisprudence
defines, among others, as involuntary resignation due to
the harsh, hostile, and unfavorable conditions set by the
employer. It arises when a clear discrimination, insensibility, or
disdain by an employer exists and has become unbearable to the
employee. The gauge for constructive dismissal is whether a
reasonable person in the employees position would feel
compelled to give up his employment under the prevailing
circumstances. (emphasis supplied)
16. The following circumstances are badges that the intention of
complainant-appellant to sever his employment relations with respondentappellee Sitel was involuntary:
16.1 Complainant-appellant is a father of three. He will not let
go eight years of employment with Sitel Philippines just because he
was suspended for five days. He will not give up his only source of
income and unduly exposed his three dependent children to hunger
and untold hardships if not for an extreme and compelling reason.
Having reached the limits of his emotional threshold and unable
to take any minute longer the abuse of power and imposition of
misplaced superiority by respondents-appellees, complainant-appellant
was compelled to resign despite a very bleak prospect of a new
employer.
16.2
Complainant-appellant, at the time of his coerced
resignation, was suffering from various acute medical conditions (e.g.
myofascial pain syndrome, migraine headache, acute pharyngitis,
peripheral neuropathy) demanding immediate and continuing medical
attention/procedure.

Memorandum of Appeal

Page 8 of 15

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:
Memorandum of Appeal

Page 9 of 15

A) Php6,896.58 illegally withheld from payroll period covering


November 6 - 20, 2014; and
B) Php7,842.11 illegally withheld from payroll period covering
November 21, 2014 up to December 5, 2014.
Therefore, respondents-appellees act of withholding complainantappellants salary for absences with duly verified medical certificates despite
having full knowledge about the existence and their possession of
complainant-appellants verified medical certificates are plainly abusive of
the respondents-appellees and oppressive to complainant-appellant. This is
an explicit manifestation of palpable bad faith on the part of respondentsappellees.
18. Respondents-appellees contumaciously refused to release the total
amount of Php14,738.69 without offering any legal or plausible reason to
complainant-appellant despite written demands. An act tantamount to
absolute disregard of the welfare and well-being of complainant-appellant as
an employee of respondents-appellees Sitel. This oppressive conduct of
respondents-appellees placed complainant-appellant deeper into financial
trauma. It goes without saying that it would have imposed little burden on
respondents-appellees to have the decency to inform complainant-appellant
what their reasons (if any) in disallowing complainant-appellants request.
19. It bears stressing that former Operations Manager Kuan already
made known to complainant-appellant on 18 October 2014 that it is already
the Top Man of Comcast CSG account respondent-appellee Canda who
wants him (complainant-appellant) booted out of Sitel for failing to terminate
the employment of Diosdado Jayson Remion (Comcast CSG Agent).
Additionally, complainant-appellants appeal to respondent-appellee Lee,
who is the highest ranking Sitel management official in the Philippines, that
his statutory right to procedural and substantive due process as well as his
right to a just and humane conditions of work be respected by the other
complainant-appellant proved futile.
20. Fully dejected, complainant-appellant sent an electronic mail
correspondence to Sitel Philippines Corporation Chief Operating Officer
respondent-appellant Michael Lee on 8 December 2014. Complainantappellants intendments are as follows:
20.1 Notification that he is resigning against his will;
20.2 Payment of unlawfully withheld salary; and
20.3 Issuance of certificate of employment.
Although, respondent-appellee Reyes is insisting that complainantappellant resigned on 18 December 2014. She presented a fabricated
evidence (marked Annex 8 in their position paper) which bears her
signature. The fabricated evidence, addressed to complainant-appellant,
states among others that she formally accepted the latters purportedly hand
delivered notice of resignation on 18 December 2014.
21.
In SHS Perforated Materials, Inc. vs. Manuel F. Diaz,
185814 [October 13, 2010], the Supreme Court ruled:

Memorandum of Appeal

Page 10 of 15

G.R. No.

Management prerogative refers to the right of an employer to


regulate all aspects of employment, such as the freedom to
prescribe work assignments, working methods, processes to
be followed, regulation regarding transfer of employees,
supervision of their work, lay-off and discipline, and dismissal
and recall of work. Although management prerogative
refers to the right to regulate all aspects of
employment, it cannot be understood to include the
right to temporarily withhold salary/wages without the
consent of the employee. To sanction such an
interpretation would be contrary to Article 116 of the
Labor Code (emphasis supplied)
XXXX
As correctly pointed out by the LA, absent a showing that the
withholding of complainants wages falls under the exceptions
provided in Article 113, the withholding thereof is thus
unlawful.
Further in the same case, the Supreme Court, citing their decision in
the earlier case of Duldulao vs. Court of Appeals, G.R. No. 164893, 1 March
2007, reiterated that
XXXX
What made it impossible, unreasonable or unlikely for
respondent to continue working for SHS was the
unlawful withholding of his salary. For said reason, he
was forced to resign (emphasis supplied).
XXXX
What is significant is that the respondent prepared and
served his resignation letter right after he was informed that
his salary was being withheld. It would be absurd to require
respondent to tolerate the unlawful withholding of his salary
for a longer period before his employment can be considered
as so impossible, unreasonable or unlikely as to constitute
constructive dismissal.
XXXX
It is worthy to note that in his resignation letter, respondent
cited petitioners "illegal and unfair labor practice" as his cause
for resignation. As correctly noted by the CA, respondent
lost no time in submitting his resignation letter and
eventually filing a complaint for illegal dismissal just a
few days after his salary was withheld. These
circumstances
are
inconsistent
with
voluntary
resignation and bolster the finding of constructive
dismissal. (emphasis supplied)
THE CASE OF VERDADERO VS. BARNEY AUTOLINES, G.R. NO. 195428,
29 AUGUST 2012 IS NOT APPLICABLE TO THE PRESENT CASE

Memorandum of Appeal

Page 11 of 15

22. There is NO diminution in pay against Verdadero. Whereas, in the


instant case, there was diminution in the pay of complainant-appellant in the
amount of Php14,738.69. And evidence shows, even respondent-appellee
Michael Lee (Chief Operations Officer and highest ranking Sitel Philippines
official), refused to release the aforesaid amount despite written demands.
23. The verbal abuse against Verdadero which rendered the latters
employment impossible, unreasonable or unlikely was committed by a coemployee only whose functions as can be gleaned from the Barney Autolines
company rules and regulations do not include the power or authority to
dismiss or even suspend an employee. Such being the situation, the unlawful
acts committed by a co-employee will not bring the matter within the ambit
of constructive dismissal.
Whereas, the persons who committed acts of oppression against
complainant-appellant are all endowed with power or authority to suspend or
even terminate an employee as could be gleaned from pertinent provisions
of Sitel Code of Conduct (Letter I No. 2 [Fundamental Responsibilities], page
#8), to wit:
The supervisors and Operation/Department managers shall be
principally responsible for initiating actions as well as reporting
any violation of Company Rules and Regulations within 72 hours
from the time of discovery or knowledge of the offense.
Serious offenses, which are those punishable by dismissal, must
be acted upon within forty eight (48) hours.
The supervisors and OPERATION/DEPARTMENT MANAGERS
SHALL HAVE THE FULL AUTHORITY AND RESPONSIBILITY TO
CONDUCT THE NECESSARY ADMINISTRATIVE INVESTIGATION
FOR ANY IRREGULARITY, IN THE ENFORCEMENT OF ALL THE
PROVISIONS OF THIS CODE AND IMPOSITION OF
APPROPRIATE CORRECTIVE ACTIONS.
However, the result of the investigation for dismissal cases is
subject to the review and approval of the HR Department prior
to the execution of the appropriate corrective action.
THE CASE OF GIMENA VS. BANKWISE, INC., G.R. NO. 175365,
23 OCTOBER 2013 IS NOT APPLICABLE TO THE PRESENT CASE
24. Gimena is a probationary employee whose employment contract
clearly provides a fund level commitment. Unfortunately, he failed to meet
the fund level commitment which eventually justifies his dismissal from
employment.
In the instant case, complainant-appellant is a regular employee who
has rendered eight long and loyal years of service with Sitel Philippines at
the time of his illegal dismissal. He was even promoted twice: from agent to
trainer and thereafter as coach/supervisor.
25. Gimena did not claim to have suffered a demotion in rank or
diminution in pay or other benefits. There was only a delay in the release of
his salary and the delay was Gimenas own creation.
Memorandum of Appeal

Page 12 of 15

In the instant case, there was clear diminution in the pay of


complainant-appellant in the amount of Php14,738.69.
Worst,
respondents-appellees suppressed the documentary evidences that will
proved that complainant-appellant was in fact sick and entitled to payment
of his salary. Not satisfied with the diminution in pay, complainant-appellant
was even threatened with three more days of suspension.
26. In the Gimena case, the Supreme Court described the exercise of
management prerogative in this wise, to wit:
The employers right to conduct the affairs of its business,
according to its own discretion and judgment, is wellrecognized. An employer has a free reign and enjoys wide
latitude of discretion to regulate all aspects of employment and
the only criterion to guide the exercise of its management
prerogative is that the policies, rules and regulations on workrelated activities of the employees must always be fair and
reasonable.
It is worth stressing, that the foregoing discussion by the Supreme
Court of management prerogative pertains to the right of Bankwise to order
the return of the service vehicle temporarily assigned to Gemina and NOT on
the imposition of disciplinary actions.
What is more appropriate as descriptions of management prerogative
in the instant case are as follows:
A. In McMer Corporation, Inc. vs. NLRC and Libunao, Jr., G.R. No.
193421 [June 4, 2014], the Supreme Court laid down the
appropriate conduct that management should exercise during
imposition of disciplinary sanctions, as follows
No employee should be subjected to constant
harassment, ridicule and inhumane treatment on the
basis of management prerogative or even for poor
performance at work. While we concur with petitioners
that raising ones voice in the workplace as a result of
displeasure in the performance of an employee is not
illegal per se, the right to impose disciplinary sanctions
upon an employee for just and valid cause is not without
limit. The means does not justify the end; thus, the same
should be in accordance with the norms of due process.
B. In The Orchard Golf and Country Club vs. Amelia R. Francisco,
G.R. No. 178125 [March 18, 2013], the Supreme Court explained
that:
[A]n employer is free to manage and regulate, according
to his own discretion and judgment, all phases of
employment, which includes hiring, work assignments,
working methods, time, place and manner of work,
supervision of workers, working regulations, transfer of
employees, lay-off of workers, and the discipline, dismissal
and recall of work. While the law recognizes and
safeguards this right of an employer to exercise what are
Memorandum of Appeal

Page 13 of 15

clearly management prerogatives, such right should not be


abused and used as a tool of oppression against labor. The
companys prerogatives must be exercised in good faith
and with due regard to the rights of labor. A priori, they are
not absolute prerogatives but are subject to legal limits,
collective bargaining agreements and the general
principles of fair play and justice. The power to dismiss an
employee is a recognized prerogative that is inherent in
the employers right to freely manage and regulate his
business.
x x x. Such right, however, is subject to
regulation by the State, basically in the exercise of its
paramount police power. Thus, the dismissal of employees
must be made within the parameters of the law and
pursuant to the basic tenets of equity, justice and fair play.
It must not be done arbitrarily and without just cause.
27. Gimena failed to present
would corroborate his allegations.

not a single letter or document that

In the instant case, complainant-appellant documented all his untiring


communications with respondents-appellees.
Upon the other hand,
respondents-appellees treated everything with cold disdain. They simply
shrugged their shoulders down to all of complainant-appellants
communication
efforts.
Respondents-appellees
treated
all
email
communications of complainant-appellant with cold disdain.
The Supreme Court in numerous cases held that silence on an
accusation is deemed an admission, especially because he had every chance
to deny it. Deafening silence can be considered a tacit admission thereof
(Tan v. Dela Cruz, Jr., A.M. No. P-04-1892 [30 September 2004; Grefaldeo v.
Lacson, A.M. No. MTJ-93-881 [3 August 1998]; Plus Builders, Inc. vs. Revilla,
A.C. No. 7056 [13 September 2006])
Additionally, the case of The Philippine American Life and General
Insurance Co. vs. Angelita Gramaje, G.R. No. 156963 [November 11, 2004] is
also instructive, to wit:
xxxx Incongruously, taking into consideration the said contents
of the formal letter of rejection, there was no response
whatsoever from the aforesaid offices (underscoring supplied). It
may be true, as stated by petitioner, that "the alleged
memorandum pertaining to the meeting held on 18 November
1998 on the alleged P250,000 settlement offer was prepared by
respondent alone without any participation from the company,"
but the fact remains that no formal response was ever made by
any of the three offices which received the same. The contents
thereof, if untrue, would have elicited a stark and strong
reaction from any of the three offices. (emphasis supplied).
28. A final note on the recurrent non-applicability of jurisprudence
relied on . The Hon. Labor Arbiter ruled the validity of complainant-appellant
suspension citing the case of Opinaldo vs. Ravina (G.R. No. 196573, 16
October 2013). But after reading in its entirety the discussion of the
Supreme Court in the Opinaldo case relative to exercise of management
prerogative, the obverse is exposed because, i.e.,

Memorandum of Appeal

Page 14 of 15

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:

1) Declaring that complainant-appellant was constructively/illegally


dismissed;
2) Declaring complainant-appellants five-days suspension as illegal;
3) Ordering respondents-appellees
complainant-appellant the following:

to

jointly

and

severally

pay

3.1) Full back wages, inclusive of allowances and other benefits


or their monetary
equivalent
computed from the time
complainant-appellant was illegally dismissed on 8 December 2014
up to the time of the final resolution of the instant case (please see
Annex EE of complainant-appellants position paper for monthly
salary and other benefits computation);
3.2) Separation pay amounting to one month pay for every year
of service starting on the date complainant-appellant was hired on
26 October 2006 up to the final resolution of the instant case;
3.3) Php5,725.19 representing payment for the five (5) days of
illegal suspension;
3.4) Php500,000 representing moral damages;
3.5) Php500,000 representing nominal damages;
3.6) Php500,000 representing exemplary damages; and
3.7) Attorneys fees equivalent to 10% of the total judgment
award.
Finally, complainant-appellant respectfully prays for such and other
reliefs as may be deemed just and equitable under the premises.
Bocaue, Bulacan for Quezon City, Metro Manila, September 21, 2015.
Memorandum of Appeal

Page 15 of 15

Republic of the Philippines)


: s.s
Municipality of Bocaue
)
Province of Bulacan

VERIFICATION /CERTIFICATION OF NON-FORUM SHOPPING


I, ARVIN A. PASCUAL, under oath, depose and say:
1. That I have caused the preparation of the foregoing Memorandum of
Appeal;
2. That I have read and understood the contents thereof;
3. That the allegations therein are correct and true to the best of my
own knowledge and belief and based on authentic records;
4. That I have not commenced any action or proceeding before any
court, tribunal or any other agency involving the same parties and
cause of action, and should I learn that any such action or proceeding, I will
undertake to inform the Honorable Commission within five (5) days from
knowledge thereof.
ARVIN A. PASCUAL
Affiant

Memorandum of Appeal

Page 16 of 15