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Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. 09
Zamboanga City
IKE IANNE CADAVEDO,
FRANCO TAN,
RONALD PANGILINAN,
and PATRICK CHIONG,
Complainants-Appellants,

NLRC CASE NO.

RAB-09-07-00083-2014

-versusGLOBE TELECOM, INC.,

represented by
LLOYD JAMES ESCARTIN,
RSH West Mindanao,
Respondents-Appellees.
X---------------------------------------------X

APPEAL MEMORANDUM
for the Complainants
COME NOW, COMPLAINANTS-APPELLANTS, through the
undersigned counsel and unto the Honorable Commission, most respectfully
submit this Appeal Memorandum and most respectfully aver that:
P R E FATORY S TATE M E N T
The spirit, rather than the letter of the law,
determines construction of a provision of law it is a
cardinal rule in statutory construction that in interpreting the
meaning and scope of a term used in the law, a careful review
of the whole law involved, as well as the intendment of the
law must be made.
Elementary is the rule that when the laws are clear, it is
incumbent upon the judge to apply them regardless of personal
beliefs or predilections.
It is a well-settled and long established doctrine that, in
case of doubt, Article 4 of the Labor Code clearly and expressly

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states that all doubts in the implementation and interpretation of

the provisions of this Code, including its implementing rules
and regulations, shall be resolved in favor of labor.

The Court has repeatedly ruled that any

doubt arising from the evaluation of evidence as
between the employer and the employee must be
resolved in favor of the latter. (Marival Trading, Inc. vs.
National Labor Relations Commission, G.R. No. 169600, June
26, 2007, 525 SCRA 708).
In controversies between a laborer and his master, x
x x doubts reasonably arising from the evidence should be
resolved in the formers favour. The policy is reflected

is no less than the Constitution, Labor Code and

Civil Code (Dealco Farms v. NLRC, G.R. No.
153192, January 30, 2009, 577 SCRA 280).
1. On October 02, 2014, Complainants Counsel received a copy of the
Honorable Executive Labor Arbiters Decision dated 01 October 2014.
2. In said Decision, the Honorable Executive Labor Arbiter ruled that
there is substantial evidence showing that the Complainants had
committed acts of falsification, misappropriated company funds, and
had engaged in pre-activation of SIMs, which justified their dismissal
from service. Complainants money claims are denied for lack of
evidence and lack of merit. Judgment is rendered dismissing the
complaints in the above-captioned case for lack of merit.
3. Thus, herein Complainants, most respectfully raised as valid grounds
for this Appeal Memorandum the following questions of law and
serious errors in the findings of facts, which, if not corrected, would
cause grave or irreparable damage or injury to the ComplainantsAppellants, to wit:
a. The Complainants
dismissed.

are

actually

illegally/constructively

b. There was no substantial evidence to support Respondents

claim that Complainants had committed acts of falsification,
misappropriated company funds, and had engaged in preactivation of SIMs, which justified their dismissal from
service.

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c. The procedural due process in labor cases was not complied

with.
FINDINGS OF THE HONORABLE EXECUTIVE LABOR ARBITER
In the assailed Decision, the Honorable Executive Labor Arbiter posits
that:
4. The complainants contention obviously proceeds from the erroneous
premise that a preventive suspension is a penalty. But preventive
suspension is not a penalty but a mere preliminary step in an
administrative investigation (Page 2 of the assailed 01 October 2014
Decision).
5. As the evidence shows, the complainants were reinstated in the payroll
while they were on preventive suspension. This is evidenced by their
payslips for the period May 15, 2014 to July 31, 2014 (Page 2 of the
assailed 01 October 2014 Decision [Annexes 15, 15-A to 15-E,
Annexes 16, 16-A to 16-E, Annexes 17, 17-A to 17-E, and Annexes
18, 18-A to 18-E, Position Paper for Respondents]).
6. As regards the respondents contention that the complaint was filed
prematurely, the (Honorable Executive Labor Arbiter) sustains the
same. The complaint was filed on July 7, 2014. At that time, the
administrative proceedings against them were still ongoing. In fact the
administrative proceedings were terminated only on August 7, 2014
when the respondent company rendered a decision dismissing them
from their employment (Page 2 of the assailed 01 October 2014
Decision).
7. In the case at bar, there is indeed substantial evidence showing that the
complainants had committed acts of falsification, misappropriated
company funds, and had engaged in pre-activation of SIMs to make it
appear that they have met their targets and thus enable them to get their
sales incentive. The respondent company, therefore, was justified in
dismissing them from service (Page 8 of the assailed 01 October 2014
Decision).
From the foregoing, we tackle each of the above findings via the
following
ISSUES
I.

The Complainants are actually illegally/constructively dismissed.

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a. Management prerogative was exercised in a manner that is

arbitrary, capricious, despotic and whimsical.
b. The preventive suspension is just a mere tactic of
Respondents to disguise the constructive dismissal of
Complainants.
II.

There was no substantial evidence to support Respondents claim that

Complainants had committed acts of falsification, misappropriated
company funds, and had engaged in pre-activation of SIMs, which
justified their dismissal from service.

III.

The procedural due process in labor cases was not complied with.

IV.

The Complainants are entitled to all their money claims and their
respective Certificate of Employment.

ARGUMENTS AND DISCUSSION

The right to due process of law is a constitutionally
guaranteed right. It is a basic constitutional tenet that no
person shall be deprived of life, liberty or property without
due process of law, nor shall any person be denied the equal
protection of the laws. (Section 1, Article III Bill of Rights,
1987 Philippine Constitution)
When a person has no property, his job may possibly be
his only possession or means of livelihood. Therefore, he
should be protected against any arbitrary deprivation of his
job. Article 279 of the Labor Code has construed security of
tenure as meaning that employer shall not terminate the

services of an employee except for a just cause or when

authorized by the Code. (Rance, et al. vs. National Labor
Relations Commission, G.R. No. 68147, June 30, 1988;
Offshore Industries, Inc. vs. National Labor Relations
Commission, G.R. No. 83108, August 29, 1989; Century
Textiles Mills, Inc., et al vs. National Labor Relations
Commission, et al., G.R. No. 77859, May 25, 1988)
Case law defines constructive dismissal as a cessation of work
because continued employment is rendered impossible, unreasonable, or
unlikely, or when there is a demotion in rank or diminution in pay or both, or
when a clear discrimination, insensibility, or disdain by an employer
becomes unbearable to employee; constructive dismissal is a
dismissal in disguise.

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Constructive dismissal exists as an involuntary resignation

on the part of the employee due to the harsh, hostile, and
unfavorable conditions set by the employer it is an act

amounting to dismissal but made to appear as if it

were not a dismissal in disguise. (Aguilar vs. Burger
Machine Holdings Corp., 506 SCRA 266).
I.

THE COMPLAINANTS ARE

ACTUALLY ILLEGALLY/CONSTRUCTIVELY
DISMISSED FROM EMPLOYMENT.

Indeed, preventive suspension is a disciplinary measure for the

protection of the company's property pending investigation of any alleged
malfeasance or misfeasance committed by the employee. (Globe-Mackay
Cable and Radio Communication v. NLRC, 206 SCRA 701 [1992])

The employer may place the worker concerned under preventive

suspension if his continued employment poses a serious and imminent
threat to the life or property of the employer or of his co-workers. (Rural
Bank of Baao, Inc. v. NLRC, 207 SCRA 444 [1992])

Very important to mention are Sections 8 and 9 of Rule XXIII,

Implementing Book V of the Omnibus Rules Implementing the Labor Code
provides:
SEC. 8. Preventive suspension. The employer may
place the worker concerned under preventive suspension if his
continued employment poses a serious and imminent threat to
the life or property of the employer or of his co-workers.
SEC. 9.
Period of suspension. No preventive
suspension shall last longer than thirty (30) days. The employer
shall thereafter reinstate the worker in his former or in a
substantially equivalent position or the employer may extend
the period of suspension provided that during the period of
extension, he pays the wages and other benefits due to the
worker. In such case, the worker shall not be bound to
reimburse the amount paid to him during the extension if the
employer decides, after completion of the hearing, to dismiss
the worker.

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However, it is noteworthy to mention that Complainants were

immediately placed under preventive suspension even without first verifying
if the accusations against them are founded and with basis. There is even no
showing by Respondents that the Complainants continuous stay or
employment poses a serious and imminent threat to the life or property
of the employer or of his co-workers. The Complainants are just
immediately placed under preventive suspension and that is it.
Even if the Respondents have the right to exercise management
prerogative by placing Complainants under preventive suspension, the rules
clearly provide that a preventive suspension shall not exceed a maximum
period of 30 days, after which period, the employee must be reinstated to his
former position. If the suspension is otherwise extended, the employee
shall be entitled to his salaries and other benefits that may accrue to him
during the period of such suspension. The provisions of the rules are explicit
and direct.
The Honorable Executive Labor Arbiter stated in Page 2 of the
assailed 01 October 2014 Decision, to wit:
As the evidence shows, the complainants were
reinstated in the payroll while they were on preventive
suspension. This is evidenced by their payslips for the period
May 15, 2014 to July 31, 2014
The Honorable Executive Labor Arbiter considered Annexes 15, 15A to 15-E, Annexes 16, 16-A to 16-E, Annexes 17, 17-A to 17-E, and
Annexes 18, 18-A to 18-E, of the Position Paper for Respondents in
concluding its statement.
Respondents made misleading averments that Respondent Company
even made errors of paying the salaries of Complainants. However, a closer
scrutiny to the Pay Slips made by Respondent Globe will show that sudden
deductions were made. Other Pay Slips even reflect Zero-Balance, as

the deductions wiped-out the whole salary of Complainants for one

Pay Period. Indubitably, and we may reasonably infer, this only shows
that Respondents are already securing the entire payments of
whatever deductibles, loans and coop dues collectible from
Complainants, because Respondents are about to terminate
Complainants. Thus, obviously Respondents were already partial and
determined to terminate Complainants from services even while
Complainants were under their so-called preventive suspension.
Further, the Pay Slips were made by Respondent Globe. Thus, it is not
impossible that these Pay Slips reflecting payment made to Complainants of

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their respective salaries were made as a mere afterthought for the purpose of
misleading or concealing their very blatant circumvention of the law.
Also, Respondents Defense (relying that Complainants were placed
in preventive suspension, thus, justifying their non-receipt of their salaries
for the 30-day period of suspension) is misplaced and is not in accordance
with the protection guaranteed by the Constitution and Labor laws in favor
of the working class against unscrupulous employers. The period of 30 days
suspension has the effect of deprivation of earnings (property rights) of the
Complainants for the duration of such period. Having subjected thereto
without the courtesy of being informed as to the very reason of
Complainants being placed under preventive suspension is not in accordance
with due process. Stating that there are anomalous reports is too vague of
a statement for the Respondents to say that Complainants were already
aware why they are being placed under preventive suspension. Further,
reports were made even prior to the Notice of Preventive Suspension. Had
this been really true that there were really reports made prior to said Notice,
Respondents could have easily photocopied the said reports and attached it
to the Notice of Preventive Suspension for Complainants perusal. Yet,
Respondents chose not to.
a. RESPONDENT GLOBES
EXERCISE OF MANAGEMENT PREROGATIVE;
IN A MANNER WHICH IS
ARBITRARY, WHIMSICAL AND
CAPRICIOUS.
A companys exercise of its management prerogatives is
not absolute it cannot be exercised in a cruel, repressive or
despotic manner; Employment to the common man is his
very life and blood, which must be protected against
concocted causes to legitimize an otherwise irregular
termination of employment; Imagined or undocumented
business losses present the least propitious scenario to justify
retrenchment. (Andrada vs. National Labor Relations
Commission, 541 SCRA 538)
It is true that Respondent Globe has the right 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
workers) or the so-called Management Prerogative. However,
exercise thereof does not vest upon the employer unlimited
power. It is subject to limitations, since abuse in the exercise
thereof would unequivocally result to oppression to labor.

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In the case of Morales vs. Harbour Centre Port Terminal,

Inc., G.R. No. 174208, January 25, 2012, the Supreme Court
held:
Admittedly, the right of employees to
security of tenure does not give them vested rights
to their positions to the extent of depriving
management of its prerogative to change their
assignments or to transfer them. By management
prerogative is meant 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 workers. Although jurisprudence
recognizes said management prerogative, it has
been ruled that the exercise thereof, while
ordinarily not interfered with, is not absolute and
is subject to limitations imposed by law,
collective bargaining agreement, and general
principles of fair play and justice. Thus, an

employer may transfer or assign employees

from one office or area of operation to another,
provided there is no demotion in rank or
diminution of salary, benefits, and other
privileges, and the action is not motivated by
discrimination, made in bad faith, or
effected as a form of punishment or
demotion without sufficient cause. Indeed,
having the right should not be confused with the
manner in which that right is exercised.
Respondent Globes decision of immediately suspending
the Complainants, without first requiring Complainants to give
their respective explanations if they should be suspended or not,
and worse, without first finding out if the accusations made
against Complainants are true or are merely made maliciously,
tantamount to an arbitrary, whimsical, capricious and despotic
exercise of management prerogative.
Noteworthy to consider is that even if preventive
suspension is not a penalty, it has the effect of depriving the
employees (herein Complainants) their earnings (their
source of income/livelihood) during the period of preventive
suspension. And the Complainants earnings are their property

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rights which cannot be divested from them if done without due

process.
A suspicion or belief no matter how sincerely felt cannot
substitute for factual findings carefully established through an
orderly procedure. (Philippine Associated Smelting and Refining
Corporation vs. NLRC et. al, G. R. Nos. 82866-82867, June 29, 1989)
It is true that the employer may place the worker
concerned under preventive suspension. However, this cannot
be done whimsically or arbitrarily. Otherwise, the worker will
be placed under the mercy of dishonest employer and such
preventive suspension can be used as a tool to cover up an
otherwise blatant circumvention of Labor laws. And it has been
explicitly provided that the employee concerned may be place
under preventive suspension by his employer if his continued
employment poses a serious and imminent threat to the life or
property of the employer or of his co-workers. However, the
Notice of Preventive Suspension merely provides a vague
statement that the management received reports pertaining to
numerous anomalies within the Complainants area. The
Complainants were not made aware the reason for placing them
under preventive suspension and such notice failed to notify the
Complainants even as to the wisdom or necessity of placing
them under immediate suspension. The Complainants were just
immediately suspended by Respondents. There is no showing
on the part of Respondents of the necessity to impose
immediate preventive suspension upon the Complainants.
Hence, Complainants were deprived of their earnings for such
duration.
Further, reports have been submitted to Respondents
prior to their serving to Complainants of the Notice of
Preventive Suspension. Respondents could have easily just
attached the reports to justify the reason for preventively
suspending the Complainants.
Thus, Respondent Globes exercise of management
prerogative is obviously made in a manner which is arbitrary,
despotic, whimsical and capricious; consequently and
necessarily as a result thereof, the Respondents have illegally
suspended herein Complainants, which subsequently lead to
Complainants being constructively dismissed.
b. PREVENTIVE SUSPENSION,
MERE TACTIC TO DISGUISE
THE CONSTRUCTIVE DISMISSAL

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OF COMPLAINANTS.
The decision made by Respondent Globe to illegally
suspend is obviously a move resorted to in order to effectively
cover up the indubitably illegal termination of the employment
of Complainants with Respondent GLOBE. Very important to
consider is the lapse of time of the suspension and the
obviously continuous inaction by the Respondents to leave
Complainants in a floating position, leaving them uncertain of
whether they will still have a job to return to. These actions and
intentional delays made by the Respondent are obvious forms
of oppression against the working class which lead to the
illegal, more specifically constructive, dismissal of
Complainants.
Noteworthy of consideration is that on June 11, 2014,
during the period when Complainants were placed under
preventive suspension, there are even employees of the
Respondent company (Globe) who witnessed that Globe is
conducting job interviews where at least 14 applicants were
present to apply for a position in Globe. Copies of Globe
employees affidavit (James Q. Yurong, Alban H. Maadil, and
Bianca Hannah May Rubio) are already attached in the
Complainants Position Paper as Annex E, F and G.
To further support Complainants statement of fact
regarding the incident of June 11, 2014 and to prove that the
accusations made by Mr. Engco against Complainants are
unfounded, unsupported and malicious, some of the applicants
of the job interview conducted on the said date also executed
their respective Affidavits. The Affidavits of applicants
EDMOND E. BIAY, MUSHARIF M. BAHARI, and ROBERT
L. CAJIGAS, Jr. in the same way stated that Mr. Engco
suddenly accosted them towards the corporate office of Globe
Telecom where they are required to answer several of his
questions answerable by only yes or no, consisting of the
following:
a.) Whether or not they are being paid their allowance and/or
incentive by their Territory Sales Head; and
b.) Whether or not they are being given orders by their Territory
Sales Head to sell pre-activated sim cards in barangays and
downtown area.
Said Affidavits further stated that they were threatened to
answer these questions in the manner that they were not being
paid of their salaries by their previous Territory Sales Head and

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that they were given orders to sell pre-activated sim cards, all to
the detriment of the previous Territory Sales Head. Copies of
the Affidavits of Edmond E. Biay, Musharif M. Bahari and
Robert L. Cajigas, Jr., are already attached and made integral
parts of Complainants Position Paper, marked as Annex H,
I, and J, respectively, with their corresponding SubAnnexes.
Thus, the preventive suspension is clearly just a mere
tactic of Respondents as disguise to place Complainants in a
situation where a clear insensibility or disdain by an employer
becomes unbearable to the Complainants.
II.

NO SUBSTANTIAL EVIDENCE
TO SUPPORT RESPONDENTS CLAIM
THAT COMPLAINANTS HAVE COMMITTED
ACTS OF FALSIFICATION,
MISAPPROPRIATED COMPANY FUNDS,
AND HAVE ENGAGED IN PRE-ACTIVATION
OF SIMS.

There is no substantial evidence to support Respondents claim that it

is the Complainants who have indeed committed acts of falsification,
misappropriated company funds, and had engaged in pre-activation of SIMs,
to justify their dismissal from service.
To clarify the matter in this instant case, we quote a decision from the
Supreme Court which clearly discuss a similar case and to prove that the
termination by the Respondents, Company and Lloyd James Escartin,
amounts to constructive dismissal. In the case of ALPS Transportation
and/or Alfredo E. Perez vs. Elpidio M. Rodriguez, G.R. No. 186732, June
13, 2013, the Supreme Court discussed:
For a dismissal to be valid, the rule is that the employer
must comply with both substantive and procedural due
process requirements. Substantive due process requires that
the dismissal must be pursuant to either a just or an authorized
cause under Articles 282, 283 or 284 of the Labor Code.
Procedural due process, on the other hand, mandates that the
employer must observe the twin requirements of notice and
hearing before a dismissal can be effected.
Thus, to determine the validity of Rodriguezs dismissal,
we first discuss whether his employment was terminated for a
just cause.

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Petitioners argue that the dismissal of Rodriguez was

brought about by his act of collecting fare from a passenger
without issuing the corresponding ticket. This was not the first
irregularity report issued against respondent, as similar
reports had been issued against him on 26 April 2003 and 12
October 2003. Thus, the company had lost trust and
confidence in him, as he had committed serious misconduct
by stealing company revenue. Petitioners therefore submit that
the dismissal was valid under Article 282 of the Labor Code.
For his part, Rodriguez denies the contents of the
irregularity report. He states that the report consists of a mere
charge, but is bereft of the necessary proof. Moreover, he
submits that while the bus company filed a criminal complaint
against him for the same act, the complaint was dismissed
pursuant to an Affidavit of Desistance, in which the bus
company stated that "the incident arose out of a
misunderstanding between them." Finally, he contends that the
companys invocation of the 2003 irregularity reports to support
his dismissal effected in 2005 was a mere afterthought. In any
event, he maintains that even those alleged infractions were not
duly supported by evidence.
We find for respondent and rule that the employer failed
to prove that the dismissal was due to a just cause.
The Labor Code provides that the burden of proving
that the termination of an employee was for a just or
authorized cause lies with the employer. If the employer fails
to meet this burden, the conclusion would be that the
dismissal was unjustified and, therefore, illegal.
Here, we agree with Rodriguezs position that the 26
January 2005 irregularity report, which served as the basis of
his dismissal, may only be considered as an uncorroborated
allegation if unsupported by substantial evidence. On this
matter, we quote with favor the ruling of the appellate court:
The nature of work of a bus conductor
involves inherent or normal occupational risks of
incurring money shortages and uncollected fares. A
conductors job is to collect exact fares from the
passengers and remit his collections to the
company. Evidence must, therefore, be substantial
and not based on mere surmises or conjectures for

to allow an employer to terminate the

employment of a worker based on mere

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allegations places the latter in an

uncertain situation and at the sole mercy
of the employer. An accusation that is not
substantiated will not ripen into a holding that
there is just cause for dismissal. A mere accusation
of wrongdoing or a mere pronouncement of lack of
confidence is not sufficient cause for a valid
dismissal of an employee. Thus, the failure of the
petitioners to convincingly show that the
respondent misappropriated the bus fares renders
the dismissal to be without a valid cause. To add,
jurisprudence dictates that if doubt exists between
the evidence presented by the employer and the
employee, the scales of justice must be tilted in
favor of the latter.
Thus, we rule that petitioners have failed to prove that the
termination of Rodriguezs employment was due to a just cause.
Turning to the issue of procedural due process, both
parties are in agreement that Rodriguez was not given a written
notice specifying the grounds for his termination and giving
him a reasonable opportunity to explain his side; a hearing
which would have given him the opportunity to respond to the
charge and present evidence in his favor; and a written notice of
termination indicating that after considering all the
circumstances, management has concluded that his dismissal is
warranted. Clearly, therefore, the inescapable conclusion is that
procedural due process is wanting in the case at bar.
In the instant case, the only basis of Respondents to justify their
illegal termination of Complainants service are:
i. As to IKE IANNE CADAVEDO report received from Michael Engco,
Jaypee Lozada, Al Sali, Gabs Abutung and Danny Lira; all of the
reports are mere allegations and without any supporting documents;
ii.

As to FRANCO TAN report received from Michael Engco, Jaypee

Lozada, Al Sali, Gabs Abutung, and Danny Lira; all of the reports are
mere allegations and without any supporting documents;

iii.

As to RONALD PANGILINAN report received from Michael Engco;

report is mere allegations and without any supporting documents;

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iv.

As to PATRICK CHIONG - report received from Michael Engco,

Jaypee Lozada, Al Sali, Gabs Abutung, and Danny Lira; all of the
reports are mere allegations and without any supporting documents.

It is only in the Notice of Decision (after being constructively

dismissed since May 16, 2014) that Respondents even made only a vague
statement (purposely to pretend compliance with procedural due process)
that considering the seriousness of the allegations and the serious threat that
[the complainants] continued presence may cause to company funds, plus
the need to investigate and validate the reports, the company placed you on
preventive suspension in a memo dated May 16, 2014.

However, logic will very much tell us that Complainants

were placed under preventive suspension to disguise the
predetermined but illegal termination of Complainants.
It is well settled in labor cases that it is the employer that has complete
control of the records which he can use to substantially support his case.
Respondents could have just attached accounting records to show if there is
indeed funds turned over to the Complainants and the list of expenses or
disbursements on how such funds were used. Yet, in the instant case, herein
Respondents chose not to do so. Respondents merely chose to rely on the
mere accusations made mostly by Mr. Engco.
It is true that in labor cases, the degree of evidence required is only
substantial evidence. But does the mere accusation against the Complainants
sufficient to satisfy the employer to have reasonable ground to believe
that the employee is responsible for the misconduct? If that is the case
(mere accusation being sufficient), then it would be very easy for employers
to just terminate their employees according to their whims and caprices as
they please by first placing them under preventive suspension, then make
reasons to justify non-reinstatement of employees back to their work, and
after numbers of months to put it in writing that indeed employees should be
terminated from their work. Is that the idea of due process here? Even the
Supreme Court, in furtherance of the protection granted by the Constitution
and Labor laws to the working class, branded it as constructive dismissal.
Again, constructive dismissal exists where there is cessation of work
because continued employment is rendered impossible, unreasonable or
unlikely, as an offer involving a demotion in rank or a diminution in pay
(Globe Telecom, Inc. v. Florendo-Flores, 438 Phil. 756, 766 [2002] citing
Philippine Japan Active Carbon Corporation v. NLRC, et al., 253 Phil. 149,
152, [1989]) and other benefits. Aptly called a dismissal in disguise

or an act amounting to dismissal but made to appear as if it

were not (Uniwide Sales Warehouse Club v. NLRC, G.R. No. 154503, 29
February 2008, 547 SCRA 220, 236), constructive dismissal may, likewise,
exist if an act of clear discrimination, insensibility, or disdain by an

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employer becomes so unbearable on the part of the employee that it could

foreclose any choice by him except to forego his continued employment
(Hyatt Taxi Services, Inc. v. Catinoy, 412 Phil. 295, 306 [2001]). In cases of
a transfer of an employee, the rule is settled that the employer is

charged with the burden of proving that its conduct and action
are for valid and legitimate grounds such as genuine business
necessity (Philippine Veterans Bank v. National Labor Relations
Commission, G.R. No. 188882, 30 March 2010, 617 SCRA 204, 212) and
that the transfer is not unreasonable, inconvenient or prejudicial to the
employee. If the employer cannot overcome this burden of proof,

the employees transfer shall be tantamount to unlawful

constructive dismissal (Westmont Pharmaceuticals, Inc. v. Samaniego,
518 Phil. 41, 51 [2006]).
III.

PROCEDURAL DUE PROCESS

REQUIREMENT IN LABOR CASES;
NOT COMPLIED WITH.

Security of tenure is one of the rights of workers that the

Constitution guarantees in Section 3, Article XIII. Security of tenure
means the right not to be removed from ones job except for a valid
reason and through proper procedure.
When a person has no property, his job may possibly be his only
possession or means of livelihood. Therefore, he should be protected
against any arbitrary deprivation of his job. Article 279 of the Labor
Code has construed security of tenure as meaning that employer shall

not terminate the services of an employee except for a just cause or

when authorized by the Code. (Rance, et al. vs. National Labor
Relations Commission, G.R. No. 68147, June 30, 1988; Offshore Industries,
Inc. vs. National Labor Relations Commission, G.R. No. 83108, August 29,
1989; Century Textiles Mills, Inc., et al vs. National Labor Relations
Commission, et al., G.R. No. 77859, May 25, 1988)
The procedural aspect of dismissal requires that the employee should
be informed of the charges against him and be given the opportunity to be
heard. This is extremely important because what is at stake is the employees
means of livelihood. Considering that the right of a person to labor is
deemed property within the meaning of constitutional guarantees, he cannot
be deprived of his employment without due process of law (Philippine
Movie Pictures Workers v. Premiere Productions, 92 Phil 843).

It is not enough for an employer who wishes to dismiss an

employee to charge him with theft or some other wrongdoing. The
validity of the charge must be established in a manner consistent

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with due process. Accusation cannot take the place of proof. A

suspicion or belief no matter how sincerely felt cannot
substitute for factual findings carefully established through an
orderly procedure. (Philippine Associated Smelting and Refining
Corporation vs. NLRC et. al, G. R. Nos. 82866-82867, June 29, 1989)
Therefore, the employees should be protected against any
arbitrary deprivation of his job. Article 280 of the Labor Code has
construed security of tenure as meaning that the employer shall not

terminate the services of an employee except for a just cause or

when authorized by the Code (Rance, et al. vs. National Labor
Relations Commission, G.R. No. 68147, June 30, 1988; Offshore Industries,
Inc. vs. National Labor Relations Commission, G.R. No. 83108, August 29,
1989; Century Textiles Mills, Inc., et al vs. National Labor Relations
Commission, et al., G.R. No. 77859, May 25, 1988).
If the dismissal is based on a just cause under Article 282 of the
Labor Code, the law requires the employer to give the worker two (2)
written notices before terminating his employment, namely: (1) a notice
charging the employee of the particular acts or omissions that may cause
his dismissal; and (2) he subsequent notice which informs the employee of
the employers decision.
If the separation is based on the authorized causes under Article 283
or 284 of the Labor Code, the law requires the employer to give both the
worker and the DOLE written notices THIRTY (30) DAYS AHEAD of the
projected separation.
In any dismissal case, the employer has the burden of proving the
lawful cause. Equipoise is not enough. The employer must affirmatively
show rationally adequate evidence that the dismissal was for justifiable
cause. (See Leopoldo G. Dizon vs. NLRC and D. M. Consunji, Inc. G. R.
No. L-79554, December 14, 1989)
It is true that in administrative proceedings, the guilt of a party need
not be shown by proof beyond reasonable doubt required by our penal
laws; yet, there must be substantial evidence to support it.
Substantial evidence is more than mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support
a conclusion. (Ang Tibay vs. CIR, 69 Phil 635; Anscor Transport &
Terminals, Inc. vs. NLRC and Crisostomo, G. R. No. 85894, September 28,
1990)
In the instant case, Respondents-Appellees merely relied on their
defenses of (1) preventive suspension and (2) premature filing.

Page 17 of 24

However, it is very clear that the preventive suspension was just a

disguise to ultimately illegally terminate Complainants service.
The defense of premature filing is also of no moment because
constructive dismissal already occurred since May 16, 2014 when
Complainants were unlawfully deprived of their livelihood. It is but
reasonable and rational for an employee to raise the matter to the Honorable
Executive Labor Arbiter and file the Complaint on July 07, 2014, as the
consequence would necessarily mean no work, no pay, a matter that poses
a threat to their very livelihood. What made the matter more serious is that
Complainants were being subjected to experience this situation by the mere
accusations without any substantial evidence showing that indeed it is the
Complainants who have committed the misdeeds. These accusations are
mere allegations, a tactical diversion, to circumvent the law, there being no
proof whatsoever when in fact Respondents could easily attach accounting
records or other company documents (other than mere accusations) to show
that Complainants were really at fault.
No doubt, and there is more reason to believe, that Respondents
resorted to their moves to make it appear that everything is legal and to
successfully circumvent the law and to avoid whatever responsibility or
liability the law itself has mandate for the employer to carry.

The Court has repeatedly ruled that any doubt arising

from the evaluation of evidence as between the employer and
the employee must be resolved in favor of the latter. (Marival
Trading, Inc. vs. National Labor Relations Commission, G.R. No. 169600,
June 26, 2007, 525 SCRA 708).
In controversies between a laborer and his master, x x x doubts
reasonably arising from the evidence should be resolved in the
formers favour. The policy is reflected is no less than the
Constitution, Labor Code and Civil Code (Dealco Farms v.
NLRC, G.R. No. 153192, January 30, 2009, 577 SCRA 280).
The Court has repeatedly ruled that any doubt arising from the
evaluation of evidence as between the employer and the employee must
be resolved in favor of the latter. (Marival Trading, Inc. vs. National Labor
Relations Commission, G.R. No. 169600, June 26, 2007, 525 SCRA 708).
While an employer wields wide latitude of discretion in the
promulgation of policies, rules and regulations on work-related activities of
its employees, these must, however, be fair and reasonable at all times.
In the case of Aguanza vs. Asian Terminal, Inc. 596 SCRA 104, it was
held that the [transfer of employees] has been traditionally among the acts

Page 18 of 24

identified as a management prerogative subject only to limitations found

in law, collective bargaining agreement, and general principles of fair play
and justice; Transfer of an employee may constitute constructive dismissal
when continued employment is rendered impossible, unreasonable, or
unlikely; when there is a demotion in rank and/or a diminution in pay; or
when a clear discrimination, insensibility or disdain by an employer
becomes unbearable to the employee.
Here is a case where Respondents raised as a defense that by reason
that there are accusations/reports, it is valid that the Complainants be placed
under preventive suspension as long as it will not exceed thirty (30) days for
it to be considered constructive dismissal. This is very much absurd since the
preventive suspension was resorted to in order for the Respondents to
disguise the otherwise blatant constructive dismissal. This should not be
countenanced. It does not mean that preventive suspension is permissible
by law as a preventive measure means that this should be taken lightly,
automatically becomes valid and does not contravene the policy of the State
to protect the labor force against unscrupulous employer.
If in the aforesaid case, employers are directed by the Supreme Court
to exercise with extreme caution in transferring employees from one job
assignment to another, what more if the case involved deals with an
employer placing his employees under preventive suspension, which has the
effect of depriving the employees of their income (no work, no pay)?
Case law defines constructive dismissal as a cessation of work
because continued employment is rendered impossible, unreasonable, or
unlikely, or when there is a demotion in rank or diminution in pay or both, or
when a clear discrimination, insensibility, or disdain by an employer
becomes unbearable to employee; constructive dismissal is a
dismissal in disguise.
Constructive dismissal exists as an involuntary resignation
on the part of the employee due to the harsh, hostile, and
unfavorable conditions set by the employer it is an act amounting
to dismissal but made to appear as if it were not a dismissal in
disguise. (Aguilar vs. Burger Machine Holdings Corp., 506 SCRA
266).
The test of constructive dismissal is whether a reasonable person in
the employees position would have felt compelled to give up his position
under the circumstances.
Respondents even contend that a hearing was conducted to give
Complainants a chance to further explain their defense. But how can
Complainants answer questions if the Notices were written in general

Page 19 of 24

statements? Did the Respondents expected that after telling Complainants

that the former have been receiving anomalous reports imputing the latter,
the latter would immediately answer that they did or did not specific
misconducts? Even the hearing was done only in a question and answer
format (which can be gleaned in the Minutes of the Administrative Hearing
already attached in Complainants Position Paper as Annex T, U, V,
and W) merely asking them if (a) they know what pre-activation of sims
is, (b) how they do their work, and (c) how they supervise their team. Said
hearing was even done in a manner of having Complainants to admit the
accusations against them, even if the accusations are unsupported by
evidence other than mere allegations. This show of partiality became a
serious concern of the Complainants. Complainants became more very
anxious and fearful that the findings will eventually just turn out to be
against them and that the administrative hearing is only for the show of
complying the due process requirement to alleviate Respondents culpability,
even if in truth and in fact they did nothing wrong and have done everything
to prove their innocence.
Respondents determination and willpower of having Complainants
fired from their work, illegally, is very apparent. First, Complainants were
already subjected to preventive suspension on the mere basis of unfounded,
unsupported and baseless accusations of Mr. Engco on May 16, 2014.
Second, the Complainants were placed under suspension beyond 30 days,
even if there is no sufficient basis to support the decision of imposing the socalled preventive suspension upon them. Third, despite the fact that they
were suspended for more than 30 days, they were never reinstated to work or
even in the payroll (as explained by Mr. Escartin before the SENA Hearing).
Fourth, the Complainants were never paid their salaries as a result of the
supposed reinstatement in the payroll. Fifth, even if assuming that indeed the
Complainants were reinstated in the payroll, records show that deductions
were obviously made in a manner to secure the whole payment of
Complainants payables which were supposed to be deducted in installment
basis, as if it is their last payroll; and this was done prior to the release of the
Notice of Decision dated August 07, 2014. Sixth, the Complainants were
made to wait for the result of the investigation, which investigation does not
even state the period within which the Management Decision must be
arrived at, and until now, no substantial evidence other than the mere
accusations were provided to support the Respondent GLOBEs decision of
terminating Complainants, further contending that mere personal knowledge
of those accusing Complainants of the misdeeds is enough to terminate
Complainants from their work since Complainants occupy a position of trust
and confidence. Are these what the Constitution and the Labor Law calls
compliance of due process? There is no compliance at all of due process in
labor cases, not even compliance of fairness, impartiality and/or equity.
Great care and caution should be taken in appreciating the evidence to
avoid circumvention of the law which the Constitution and the Labor Code

Page 20 of 24

strongly uphold, that is, the protection of the working class against
unscrupulous employers.
It is very important to take serious consideration as to the manner
how Respondents have dealt with Complainants, especially on:
1. how Complainants were placed under the so-called preventive
suspension by Respondents;
2. what are the matters stated or covered by the notice of preventive
suspension;
3. the time frame when the Complainants were given Notices of
Preventive Suspension until the time when Complainants were
given Notices of Administrative Charges;
4. the time frame when Complainants were required to explain their
sides;
5. the fact that Complainants were never allowed to report back to
work;
6. the fact that Respondents conducted a hiring and assigned other
persons to assume Complainants work;
7. the partial manner which the administrative hearing was
conducted;
8. the manner of deductions made on Complainants payroll; and
9. most of all, the time when the decision to terminate Complainants
were released.
Clearly, as can be inferred from the foregoing enumerations in the
manner how this case was dealt with by the Respondents, it only manifest
that there is really failure to observe the procedural due process required in
labor cases.
IV. THE COMPLAINANTS ARE
ENTITLED TO ALL THEIR MONEY CLAIMS
AND THEIR CERTIFICATE OF EMPLOYMENT.
Complainants are indeed entitled to all monetary claims as prayed for
in Complainants Position Paper and Comment, as can be seen in the
manner resorted to by Respondents on how to cover up their moves of
illegally/constructively
dismissing
Complainants
from
their
work/employment.

Page 21 of 24

Had it not been for the blatant circumvention of the law and for the
purpose of avoiding the employers responsibilities to provide their
employees what the Constitution and the Labor Code mandates; and for
having illegally/constructively dismissed Complainants without due regards
to the due process requirements in labor cases; Complainants should have
still until now be earning their regular income had they not been unlawfully
deprived and prevented from work relying mainly with Respondents
reasoning that Complainants have done the acts being charged against them,
even if Respondents failed to rationally prove the same by substantial
evidence. Respondents findings were never supported or substantiated by
evidence other than the mere accusations made against Complainants.
Based on the foregoing factual statements, it is very clear that
Complainant has been constructively dismissed and, thus, entitled to all
monetary claims as prayed for in Complainants Position Paper and
Comment against the respondent.
And as to the Complainants respective Certificate of Employment, it
has been categorically discussed how herein Complainants have been
unlawfully deprived of their employment. Again, the Complainants never
have any derogatory records and have never committed any violations of
company policy or have been sufficiently proven to have committed any
violations thereof. It is only now that, when Complainants have been
illegally/constructively dismissed, that Respondents concocted that there is
just and valid grounds for the dismissal of Complainants from their jobs.
Indubitably, because of Respondents attempt of covering up their violation
of due process and intentional circumvention of the law to escape the
consequence for Respondents wrongdoings, Complainants are made to be
exposed with such harshness and punishment even without committing any
act or omission to deserve the same.
As explicitly provided in Section 10, Rule XIV, Book V of the
Omnibus Rules to Implement the Labor Code of the Philippines, it states
that:
Section 10. Certificate of employment. A dismissed worker
shall be entitled to receive, on request, a certificate from the
employer specifying the dates of his engagement and
termination of his employment and the type or types of work on
which he is employed.
Being deprived of their employment through an obviously unfair,
unreasonable and unlawful manner; and being subjected to the consequence
of the unfair, unreasonable and unlawful actions by Respondents; it has
already been more than enough bad experience, anguish, suffering and
agony for Complainants.

Page 22 of 24

Complainants not being deserving of the illegal termination of their

employment by Respondents, it is all the more unbearable for Complainants
if Respondents be allowed to continuously vex Complainants by
Respondents prolonged issuance of Complainants Certificate of
Employment.
Complainants have already been exposed to the harsh and inhumane
treatment by Respondent. After being illegally dismissed, it is but proper for
Respondents to issue to Complainants their respective favorable Certificate
of Employment to enable Complainants to move on with their lives and start
anew.
Otherwise, to allow Respondents to prolong issuance thereof
would only and necessarily allow Respondents to frustrate the ends of
justice, to successfully circumvent the law and to discourage the very
reason which the Constitution and the Labor Code aims to protect, and
that is, the protection of the working class against the unscrupulous
employers.
Thus, the Complainants, who are in all fairness entitled to their
respective Certificate of Employments, seek the aid of the Honorable Labor
Arbiter to help Complainants to immediately secure the said Certificate in
the soonest time by ordering Respondents to immediately issue the same
to Complainants. So that Complainants can start anew as soon as possible
to recover from the very big loss and damage that they have sustained
as the consequence of Respondents unfair, unreasonable and unlawful
act and omission.

PRAYER
WHEREFORE, the foregoing premises considered, Complainants
most humbly prayed of the Honorable Commission:
1. To give this instant Appeal due course;
2. To render judgment declaring Complainants to have been illegally
(constructively) dismissed;
3. To render judgment holding Respondents liable for the payment of
all the monetary claims as prayed for in Complainants Position
Paper and Comment; and
4. To render judgment ordering Respondents to immediately issue,
in favor of Complainants, the latters respective Certificate of
Employments.
Other reliefs just and equitable are likewise prayed for.

Page 23 of 24

RESPECTFULLY SUBMITTED this 10th day of October 2014 at

Zamboanga City, Philippines.

FAUNDO ESGUERRA
& ASSOCIATES LAW FIRM
Counsel for Complainants
ESQUIRE CENTRE BUILDING
Tomas Claudio Extension, Zamboanga City
Telefax / Telephone No. (062) 990-1722/991-6421
By:

ATTY. QUIRINO G. ESGUERRA, JR.

IBP Lifetime Membership No. 2182
Roll No. 38761; 3/14/1994
MCLE Compliance No. I-0006637;12-4-2004;
MCLE Compliance No. II-0010128; 07-13-2009
MCLE Compliance No. III-0004162; 07-13-2009
MCLE Compliance No. IV-0000171; 08-02-2010
PTR No. 0791298; 1/3/2014; Z.C.
Zamboanga City

JUSTIFICATION FOR SERVICE

BY REGISTERED MAIL
In compliance with Section 11, Rule 13 of the Rules of Court, counsel
explains that a copy of the foregoing Appeal Memorandum for the
Complainants will be served to Respondents Counsel at Taguig City by
registered mail because of distance which makes personal service not
practicable.
ATTY. QUIRINO G. ESGUERRA, JR.
Copy furnished:
Atty. PAULINO D. UNGOS, Jr.
SALALIMA CASTELO & UNGOS
28th Floor, The Globe Tower
32nd Street corner 7th Avenue
Bonifacio Global City
Taguig City

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