Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

MARVIN D. YCADUYAN,
Complainant;

-versus- NLRC NCR CASE NO. 08-12818-12

CITY TRADE and ANA PE,

Respondents.
x------------------------------------------------x

POSITION PAPER
(FOR THE RESPONDENTS)

RESPONDENTS, through counsel, unto the Honorable Office, most

respectfully submits this POSITION PAPER, and states:

THERE IS NO ILLEGAL DISMISSAL AS THE

COMPLAINANT WAS NEVER DISMISSED FROM WORK

PRELIMINARY STATEMENT

This is a case for alleged illegal dismissal and non-payment of wages and
other benefits filed by the complainant against the respondents. At the outset, it
must be pointed out that the complainant was NEVER dismissed from work.
Complainant, a STAY-IN worker of the respondent company, simply decided one
day to no longer report for duty. He was not terminated from service by the
respondent company nor was he ever barred from entering the company premises
to report for work.

Accordingly, “if there is no dismissal, then there can be no question as to

the legality or illegality thereof.” (Ledesma, Jr. v. NLRC, G.R. No. 174585,
October 19, 2007, 537 SCRA 358)

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 THE PARTIES

Complainant MARVIN D. YCADUYAN, is a Filipino, of legal age, with

address care of No. 8 ABX Building, Del Monte, Quezon City where he could be
served with summons and other processes.

Respondent CITY TRADE. is a trading company organized under

Philippine Laws, with address at 109 N.S. Amoranto Retiro St., Quezon City,
where it could be served with summons, notices and other processes.

Private respondents ANA PE is a Filipino, of legal age, married, and is one

of the officers of respondent company, with office address as that of respondent
entity.

STATEMENT OF FACTS

Respondent company is primarily engaged in the trading and construction

business. Complainant Ycaduyan is one of the workers under its employ with the
position of “Helper” of louver products. Aside from giving the respondent a
means to earn a decent living, respondent also provided the complainant a living
quarter, owing to the fact that respondent hails from Tacloban City. The home
provided by the respondent to the complainant is located inside City Square
Building, 106 Cordillera St., Amoranto St, Maharlika, Quezon City.

Thus, complainant Ycaduyan has been a stay-in employee and has been
living inside the company premises for many months now.

On numerous occasions, respondent company has been a victim of many

instances of pilferage committed inside the company premises, particularly the
stockpile of various left-over steel products owned by the respondent.

On Sunday, August 25, 2012, at around 9:30 p.m., complainant Ycaduyan,

while still living at the home which the respondent has provided for him, was
caught in the act of stealing from the stockpile of steel materials by Security Guard
Gavino Romano who was on duty at that time.

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 According to the incident report of the said Security Guard, a copy of
which is hereto attached as ANNEX A and made an integral part hereof,
complainant was caught carrying a bag full of steel materials which he took from
the stockpile inside the City Square Bldg., where the said complainant was also
living as a stay-in worker.

Upon being caught in the act of stealing the said materials, the said Security
Guard immediately contacted one of the officers of the respondent company.
Thereafter, complainant was accompanied by the said Security Guard to the
nearest Police Station in La Loma, Quezon City, in order that the incident can be
properly investigated as this involves a suspected violation of the law, and to find
out whether or not the complainant actually committed any wrongdoing.

Upon arriving at the police station and since it was already in the wee hours
of the morning, the complainant was left in the custody of the police in order that
the incident can be properly investigated.

On August 26, 2012 or the following day, a Monday, the complainant did
not report for work. Likewise, the complainant again failed to report for work on
August 27, 2012. Fearing that something might have happened to the
complainant, Mr. Antonio Pe, one of the officers of the respondent company,
immediately went to the police station which conducted the investigation of the
incident in order to inquire about the whereabouts of the complainant, but the
police only told him that the complainant was released on the same day he was
brought therein after being investigated.

Mr. Pe asked his co-workers about the whereabouts of the complainant.

Much to the surprise of the respondent, a notice was sent to the respondent
company informing that the complainant has filed the present case for alleged
dismissal against it.

ISSUES

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 1. Whether or not the complainant was illegally dismissed.
2. Whether or not the complainant is entitled to the money claims and
damages as stated in the complaint.

DISCUSSION

First and foremost, individual respondent Ana Pe should immediately be

dismissed as a respondent in the case at bar. It must be noted that respondent City
Trade, Inc. is “a juridical entity with legal personality separate and distinct from
those acting for and in its behalf and, in general, from the people comprising it.
The rule is that obligations incurred by the corporation, acting through its
directors, officers and employees, are its SOLE LIABILITIES.” (see recent case
of FRANCISCO vs. MALLEN, JR.; G.R. No. 173169; September 22, 2010; citing
many jurisprudence.)

In ALERT SECURITY AND INVESTIGATION AGENCY, INC. v. SAIDALI

PASAWILAN (G.R. No. 182397, September 14, 2011), the Supreme Court explained that:

Jurisprudence has been consistent in defining

the instances when the separate and distinct personality
of a corporation may be disregarded in order to hold
the directors, officers, or owners of the corporation
liable for corporate debts. In McLeod v. National
Labor Relations Commission, the Court ruled:

Thus, the rule is still that the doctrine of

piercing the corporate veil applies only when the
corporate fiction is used to defeat public convenience,
justify wrong, protect fraud, or defend crime. In the
absence of malice, bad faith, or a specific provision of
law making a corporate officer liable, such corporate
officer cannot be made personally liable for corporate
liabilities. x x x

Further, in Carag v. National Labor Relations

Commission, the Court clarified the McLeod doctrine
as regards labor laws, to wit:

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 We have already ruled in McLeod v. NLRC
and Spouses Santos v. NLRC that Article 212(e) of
the Labor Code, by itself, does not make a
corporate officer personally liable for the debts of
the corporation. The governing law on personal
liability of directors for debts of the corporation is still
Section 31 of the Corporation Code. x x x

In the present case, there is no evidence to

indicate that Manuel D. Dasig, as president and
general manager of Alert Security, is using the veil of
corporate fiction to defeat public convenience, justify
wrong, protect fraud, or defend crime. Further, there is
no showing that Alert Security has folded up its
business or is reneging in its obligations. In the final
analysis, it is Alert Security that respondents are after
and it is also Alert Security who should take
responsibility for their illegal dismissal.

To hold a director or officer personally liable for corporate obligations, two

requisites must concur: (1) complainant MUST allege in the complaint that the
director or officer assented to patently unlawful acts of the corporation, or that
the officer was guilty of gross negligence or bad faith and (2) complainant must
clearly and convincingly prove such unlawful acts, negligence or bad faith
(Francisco case, supra).

In the present case, respondent Ana Pe was never in contact with the
complainant either before, during, or after the date of the alleged dismissal of the
complainant. At any rate, respondent Pe can never have committed any patently
unlawful act or guilty of bad faith with respect to the alleged dismissal of the
complainant simply because the complainant was never dismissed from work by
the respondents in the first place.

There being no dismissal, the complainant can never accuse the respondent
Pe of guilty any unlawful act that will make her personally liable in the case at bar.

It must be pointed out that the complainant has absolutely no evidence that
will show that he was illegally dismissed by the respondent. NONE.

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 In the very recent case of EXODUS INTERNATIONAL vs GUILLERMO
BISCOCHO (G.R. No. 166109, February 23, 2011), the Supreme Court reiterated
the rule regarding the quantum of evidence needed to prove illegal dismissal in
labor cases, viz:

“[T]his Court is not unmindful of the rule that

in cases of illegal dismissal, the employer bears the
burden of proof to prove that the termination was for a
valid or authorized cause.” But “[b]efore the
[petitioners] must bear the burden of proving that the
dismissal was legal, [the respondents] must first
establish by substantial evidence” that indeed they
were dismissed. “[I]f there is no dismissal, then there
can be no question as to the legality or illegality
thereof.” (citing the case of Ledesma, Jr. v. National
Labor Relations Commission, G.R. No. 174585,
October 19, 2007, 537 SCRA 358, 370.)

In Machica v. Roosevelt Services Center, Inc.,

(G.R. No. 168664, May 4, 2006, 489 SCRA 534) this
Court sustained the employer's denial as against the
employees' categorical assertion of illegal dismissal. In
so ruling, this Court held that:

The rule is that one who alleges a fact has the

burden of proving it; thus, petitioners were burdened to
prove their allegation that respondents dismissed them
from their employment. It must be stressed that the
evidence to prove this fact must be clear, positive and
convincing. The rule that the employer bears the
burden of proof in illegal dismissal cases finds no
application here because the respondents deny having
dismissed the petitioners.

In the case at bar, aside from the BARE allegations that he was allegedly
dismissed, complainant will surely fail to show in his Position Paper any evidence
to prove such alleged illegal dismissal actually happened. IT WAS ONLY
COMPLAINANT’S UNSUBSTANTIATED CONCLUSION THAT HE WAS
DISMISSED.

It must be noted that when the complainant was caught in the act of stealing
valuable steel materials by the security guard on duty at that time, it was

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INCUMBENT upon the aforesaid guard to report the matter directly to the police
as this involves the commission of the crime.

The code of conduct of security guards provides that a security guard

“shall immediately notify the police in case of any sign of disorder, strikes, riot, or
any serious violation of the life and property.” (see the implementing rules and
regulations of the Private Security Agency Law, RA No.5487)

The fact that the complainant was brought to the police station after he was
caught stealing certain materials from the respondent company cannot be
interpreted to mean that the complainant was being dismissed from work. It was
the legal DUTY of the Security Guard of the respondent to bring the matter to the
police as this involves the alleged commission of a crime, as mandated by the
implementing rules and regulations of Republic Act No. 5487, otherwise known as
the Private Security Agency Law.

Thus, the Security Guard was merely doing his duty as mandated by law
when he brought the matter to the police. The complainant was WRONG in
assuming that he was already being dismissed from work.

Accordingly, absent any evidence to prove the alleged illegal dismissal, this
complaint must FAIL. “If there is no dismissal, then there can be no question as to
the legality or illegality thereof.” (Ledesma, Jr. v. NLRC, G.R. No. 174585,
October 19, 2007, 537 SCRA 358)

In labor cases, the quantum of proof necessary is SUBSTANTIAL

EVIDENCE, or such amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion. Complainants have the DUTY to prove
by substantial evidence their own positive assertions. (ANTIQUINA vs.
MAGSAYSAY, G.R. No. 168922; April 13, 2011)

In his complaint, the complainant likewise alleged underpayment of wages.

Such claim is also without any basis. It must be pointed out that the complainant
is a STAY-IN employee of the respondent company. He was provided with a
suitable living quarter by the respondent for a small fee as rental payments.

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Complainant is from far away Tacloban City and has no residence here in Metro
Manila except that which was provided to him by the respondent company.
Complainant, upon his hiring, voluntarily agreed and authorized such an
arrangement as this has obviously lessened his expenses while working here in
Quezon City, expenses for rent that which he would have otherwise paid for.

As regards to his other money claims as stated in his complaint, suffice is to

say that the same are likewise without any basis. The complainants is not entitled
to any monetary claim as he has failed to prove by substantial evidence as required
by law and jurisprudence, his claim that he was illegally dismissed from service.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of the

Honorable Office to render judgment in favor of the respondents by DISMISSING
the present complaint.

Other just and equitable remedies are likewise prayed for.

Quezon City, December 4, 2012.

ATTY. PEARLITO B. CAMPANILLA

Suite B, 2nd floor, Overland Park Building
No. 245 Banawe cor. Quezon Ave., Quezon City.
PTR No. 6308458 02-06-12 QC
IBP No. 888279 02-03-12 Pasig City
L.M. ROLL No. 010564
ROLL No. 37522
MCLE No. III - 0015235

Copy Furnished:

MARVIN D. YCADUYAN
care of No. 8 ABX Building, Del Monte, Quezon City

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 VERIFICATION AND CERTIFICATION

I, ANA PE, of legal age, after having been duly sworn in accordance with law,
depose and state that:

1. I am the __________ of the respondent in the above-stated case;

2. I caused the preparation of the foregoing position paper;

3. I have read the contents thereof and the facts stated therein are true and
correct of my personal knowledge and/or on the basis of authentic documents and
records in my possession;

4. I have not commenced or filed any other action or proceeding involving the
same issues in the Supreme Court, the Court of Appeals, or any other tribunal or
agency;

5. To the best of my knowledge and belief, no such action or proceeding is

pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency;

6. If I should thereafter learn that a similar action or proceeding has been filed or
is pending before the Supreme Court, the Court of Appeals, or any other tribunal or
agency, I undertake to report that fact within five (5) days therefrom to this Honorable
Commission.

ANA PE
Affiant

SUBSCRIBED AND SWORN to before me this ___ day of ____________

Quezon City, affiant is known personally to this Notary Public

Doc.No.;
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Series of 2012.