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NATIONAL LABOR RELATIONS COMMISSI' NATIONAL CAPITAL REGION QUEZON CITY if ERICK S$, SARTE, ET AL., 5 Complainants, -versus- NLRC NCR Case No. 12-15596-13 (Hon, Labor Arbiter Jaime M. Reyno) BITMICRO NETWORKS INTERNATIONAL, INC, ET AL., Respondents. ———__E x REJOINDER COMPLAINANTS, through the undersigned counsel, unto this Honorable Office, respectfully submit their Rejoinder, and state: Contrary to the respondents’ contention, there can be constructive dismissal even if the employees did not cease reporting for work. 1. In their Reply, the respondents claimed that “[tJhere is no constructive dismissal if there is no cessation of employment.” Citing the 2011 case of United Laboratories v. Domingo,’ the respondents argued that the “crucial element in a finding of constructive dismissal is a cessation of employment relations between the parties.” Respondents’ argument is bereft of merit. ' GR. No. 186209, Sept. 21, 2011. ( 2. Contrary to the respondents’ submission, an actual abandonment and cessation of work is not necessary for there to be constructive dismissal. Constructive dismissal occurs not when the employee ceases to report for work, but rather when the unwarranted acts of the employer are committed to the end that the employee’s continued employment shall become so intolerable. In these difficult times, an employee may he left with no choice but to continue on with his employment despite abuses committed against him by the employer, and even’ during the pendency of a labor dispute between them. This should not be taken against the employee. Respondents should be reminded of the precept that necessitous men are not free men. 3. Respondents’ reliance in the Unilab case is misplaced. In the fairly recent case of The Orchard Golf and Country Club v. Francisco, the Supreme Court had already categorically ruled that the fact that the employee continued to report for work does not necessarily suggest that constructive dismissal has not occurred, nor does it operate as a waiver of his right against the employer's acts of insensibility, disdain or discrimination. Thus: “The fact that Francisco continued to report for work does not necessarily suggest that constructive dismissal has not occurred, nor does it operate as a waiver. Constructive dismissal occurs not when the employee ceases to report for work, but when the unwarranted acts of the employer are committed to the end that the employee's continued employment shall become so intolerable. In these difficult times, an employee may be left with no choice but to continue with his employment despite abuses committed against him by the employer, and even during the pendency of a labor dispute between them. This should not be taken against the employee. Instead, we must share the burden of his plight, ever aware of the precept that necessitous men are not free men.” 4. Indeed, the complainants cannot be blamed for continuing to report for work notwithstanding the series of acts of harassment, insensibility and disdain suffered at the hands of the respondents. It should be stressed that even if the complainants are litigating the present case, they still have families to feed, to provide shelter, and to fulfill the basic necessities in life. They are left with no choice but to continue with their employment despite the abuses committed at the hands of respondents. Respondents’ insistence that 2G.R. No. 178125, Mar. 18, 2013, ie they should refrain from report charge of constructive dismisse logic. for work to give semblance to the indeed absurd and contrary to e il Respondents’ allegation that like i present controversy stemmed * from the company shutdown that - happened in September 2013 is bereft of merit. te 5. _ In their Rejoinder, respondents reiterated their allegation that the present controversy stemmed from the company shutdown sometime in September 2013. They likewise insisted that the present controversy stemmed from the confusion caused by the said company shutdown. ¢ 6. There is no merit in the respondents’ assertion that the present controversy arose from the above-mentioned company shutdown. As explained at length in the complainants’ Position Paper and Reply, the respondents had already acted in bad faith towards the complainants even before the said company shutdown. The respondents’ contention is belied by the fact that the employees’ salaries have been delayed even prior to the said company holiday 7. Indeed, there is no merit in the respondents’ allegation that the “company holiday” was the proximate cause for the delay in the release of the salaries of the employees, as well as the production delay. An examination of the record will reveal that the real cause for such delay was the nefarious attempt of the individual respondents to take over the Company's operations by withholding the release of the funds, which were intended to pay off the employees’ salaries, as well as the Company's creditors and business partners. It became apparent that the new management was using the employees’ salaries to pressure the complainant into submitting to their control, thereby deciding the dispute in their favor—which was not for them to decide. " 8. After much delay, BNI-USA eventually promised to release some funds to Bitmicro, ‘However, it would take several days to process the remittance and the amount released was sufficient only to cover the basic salaries of the employees, as it did not include the 3