REPUBLIC OF THE PHILIPPINES DEPARTMENT OF LABOR AND EMPLOYMENT NATIONAL LABOR RELATIONS COMMISSION NATIONAL CAPITAL REGION Quezon City
Ms. X, Complainant,
NLRC-NCR-00-12345-67 Hon. Labor Arbiter Juan Dela Cruz
-versusABC School Respondents, x---------------------------x
POSITION PAPER Respondent ABC School, by the undersigned counsel and unto this Honorable Labor Arbitration Office, most respectfully aver the following: PARTIES
The Complainant in this case is Ms. X, of legal age, married, with post office address at 123 1st Street, Sta. Ana, Manila, where she may be served with summons and other legal processes by this Honorable Office. Respondent ABC Company is an educational institution established and organized under the laws of the Republic of the Philippines, holding its business at #123 San Vicente St., Legaspi Village, Makati City, where it could likewise be served by this Honorable Office of all its summons and legal processes. STATEMENT OF FACTS
1. Ms. X is a contractual non-academic employee of, holding the position of Department Head. Her task is simply to suggest guidelines and to implement the approved course curriculum curriculum for the BS Hotel and Restaurant Management (HRM) course of ABC School, to approve the assignments of teaching loads for the professors as recommended by an Area Coordinator, and to oversee and evaluate the general performance of the faculty members. In addition, she is given a maximum of 12 units per week (12 hours) of teaching teaching load. 2. ABC School has agreed to contract with her on the condition that she will be “working for the sole benefit of the company and [will not] do any act
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prejudicial to its interest. Xxx” She has been re-contracted three times since June 26, 2010 the third of which was signed last May 25, 2012, starting June 18, 2012 and was supposed to end by June 2013, or “before the start of S.Y. 2013-2014” , as seen in Annex “A.” 3. During the end of her second contract, Ms. X have already been showing signs of disinterest and reluctance to perform her job well by the advent of several incident reports regarding her efficiency and for her disobedience to company rules for which she was even suspended (please see Notice to Explain as Annex “B” and the Decision as Annex “C”). Nonetheless, ABC School still decided to give her another chance to redeem herself by renewing her contract for another year starting June 2012. 4. Despite this opportunity, Ms. X continued to commit lapses in her performance and defiance to company rules (please see Annexes “D”, “E” & “F”), the last of which was contained in an incident report regarding an alleged case of accepting bribes/gifts in exchange for higher/passing grades, and unauthorized solicitations to students for a “lunch buffet” project in Shangrila Makati, a ‘field trip’ which was neither approved nor known to the School Director and other administrators (Please see the Incident Report on the Notice to Explain in Annex “G”). Due to the Gravity of the accusations, ABC School has decided to conduct a thorough investigation on the matter on February 5, 2013 (see Notice To Conduct Administrative Investigation, Annex “H”). Ms. X was hence, put on preventive suspension beginning January 30, 2013, as her continued presence would pose a serious and imminent threat to her students who have and whose parents have in fact complained about this, and to prevent a curtailment of an impartial investigation, considering her stature and influence. 5. A decision has been rendered by February 28, 2013 (Annex “I”) on the basis of Ms. X’s answer to her NTE (Annex “J”) and the findings during the February 5, 2013 investigation. Some students have confirmed to the truth on the giving of gifts for a more favorable turn out of their grades, although they refused to issue sworn statements for fear of being involved in the controversy to their prejudice. Conclusive evidence has been found, however, on the two (2) Shangrila Makati trips for October 26 and November 30, 2012 (see Annexes “K-1” to “K-7”) in addition to Ms. X’s written admission. Henceforth, as a counter-measure to its reputation being maligned by parents suing ABC School for unreasonable and unjustified expenditures under the guise of field trips or projects, as any reputable and virtue-oriented educational institution would do, ABC School has decided to resolve matters in accordance with 1 the mandate of the C.H.Ed. Manual . Ms. X’s employment was thus terminated. 1 Commission on Higher Education, © 2008 Manual of Regulations for Higher Education,
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6. Upon the accomplishment of Ms. X’s last pay as a consequence of her severance from service, a check in the amount of Php17,046.94 was offered to her by ABC School, constituting her last payroll which should have been due by January 31, 2013 or before she was put on preventive suspension (Please see Annexes “L-1” to “L-6”). Ms. X, however, refused to accept this amount without any justification. 7. With Ms. X’s unwillingness to such termination as well as her disappointment with her last pay, she has capriciously asserted claim with this Honorable Arbitration Office as early as April of 2013, which th was subsequently dismissed for her lack of interest. However, last 28 of January 2014, ABC School has again received summons about a reassertion of Ms. X’s demands, as a result of which, respondent files this Position paper.
ISSUES: 1. WHETHER OR NOT MS. X HAS BEEN ILLEGALLY DISMISSED, WARRANTING THE PAYMENT OF MORAL AND EXEMPLARY DAMAGES AND ATTORNEY’S FEES. 2. WHETHER OR NOT MS. X IS ENTITLED REGULARIZATION, AND OVERTIME PAY.
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3. WHETHER OF NOT MS. X HAS BEEN ILLEGALLY SUSPENDED.
The dismissal of Ms. X is legal and proper under the circumstances.
We hold that Ms. X should rightfully be dismissed for the following important reasons: 1. She has pioneered a field trip without authority from the school administrators, imperiling the students on the pretext of being an official act of the school, by the influence of her position as Department Head. This recklessness is highly reprehensible because it unnecessarily exposes the school to unwanted lawsuit in the event that something bad may happen to any student. We take precedence on various Supreme Court decisions holding the school principally and subsidiarily liable under their special parental authority as mandated by Article 218 of the Family Code, or under torts. Such authority and responsibility applies to field trips, excursions and other affairs of the pupils and students outside the school premises whenever authorized by the school or its teachers (St. Mary’s Academy vs. Carpitanos, G.R. No. 143363, February 6, 2002, citing the book of Alicia Sempio-Diy on the Family Code, p. 344).
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As the Shangrila trip was purportedly done in the context of an academic activity, any unfortunate act that may happen in that very occasion would necessarily be attributed to the school, and ABC School will then be enjoined to defend itself in court, and eventually incur ancillary expenses, which often come with litigation. With Ms. X’s evident lack of concern for ABC School, as shown by her trail of inefficient performances, this act was the culminating point where ABC School was forced to respond with graver measures. It would have been extremely negligent of ABC School if this was simply let on. 2. The fact that Ms. X’s lunch was paid by the students belies the claim that the trip was completely and purely meant for educational purposes. This is certainly not a practice of the school, nor will ABC School consent to it if known because it breeds connotations of corruption and the giving of unwarranted favors on the part of the professor, to the prejudice of the school’s reputation. A student will always agree, and even volunteer to provide not only free lunch but all sorts of graces to his/her professor in the hopes of even the slightest favorable result and even as they feign to do so in good faith. We can never be too emphatic on how we want our professors to always portray a dignified and professional stance before the students and the public and Ms. X is certainly not exempted from this condition. Furthermore, it is not enough that the students will agree by themselves to holding this type of activity, as Ms. X puts in her defense, especially when the amount involved is highly unconscionable for its purpose. Parents have in fact complained to ABC School on the amount of P836.64 per student for a mere lunch including an additional corresponding amount for Ms. X’s share. We completely understand the parents’ predicaments. This activity is definitely a deviation to ABC School’s objective in providing quality education for less. ABC School does not and will not require our students to incur unnecessary expenses for anyone’s caprice and any professor who does so should be rightfully sanctioned. 3. We have as basis the C.H.Ed. Manual, supra, in concluding the termination of Ms. X’s employment, thus: Section 121. Causes
of Terminating Employment. In addition to the just causes enumerated in the Labor Code, the employment of personnel in a higher education institution, may be terminated for any of the causes as follows: Xxx 1.) grave misconduct, such as, but not limited to, giving of grades to a student in a subject not based solely on scholastic performance; xxx;
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2.) gross inefficiency and incompetence in the performance of duties such as, but not limited to failure to cope with the reasonable standard of efficiency and competence of the institution; xxx; xxx 7.) the sale of tickets or the collection of any contributions in any form or for any purpose or project whatsoever, whether voluntary or otherwise, from students and school personnel; xxx” Ms. X is not entitled to be regularized, nor is there any stated overtime work to justify her demand of overtime premium.
ABC School has taken Ms. X as an independent contractor, and thus, she is not an employee of ABC School who is entitled to regularization, both under labor laws and jurisprudence. To determine the existence of an employer-employee relationship, case law has consistently applied the four-fold test, to wit: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee on the means and methods by which the work is accomplished. The so-called “control test” is the most important indicator of the presence or absence of an employer-employee relationship. ( Sonza v. ABS-CBN Broadcasting Corporation, G.R. No. 138051, 10 June 2004, 431 SCRA 583, 594-595) ABC School admits to engaging the services of Ms. X, including her in its payroll on a monthly basis, and terminating her contract for her breach of the same in accordance with its rules and regulations, and in consonance with law. However, the element of control is lacking, making Ms. X an independent contractor of the same. While ABC School may approve the curriculum provided by Ms. X to determine compliance with C.H.Ed. requirements and the needs of the course, there is no control whatsoever with how she plots the schedules, distributes the teaching load of the professors and turn out with the result of her evaluation for each. The guidelines provided by ABC School are simply meant to ensure the effectiveness of its business. Not every form of control that a party reserves to himself over the conduct of the other party in relation to the services being rendered may be accorded the effect of establishing an employer-employee relationship (Sonza, supra). The line should be drawn between rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fix the methodology and
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bind or restrict the party hired to the use of such means. The first, which aim only to promote the result, create no employer-employee relationship unlike the second, which address both the result and the means used to achieve it (Insular Life Assurance Co., Ltd. v. NLRC, G.R. No. 84484 November 15, 1989). Anent the issue of overtime pay, it is a basic rule in evidence that one must prove his affirmative allegations (Jimenez vs. NLRC, 256 SCRA 84 (1996). Entitlement to overtime pay must first be established by proof that said overtime work was actually performed, before an employee may avail of said benefit (Romeo Lagatic vs. NLRC, G.R. No. 121004, January 28, 1998, citing Cagampan vs. NLRC, 195 SCRA 533 (1991). Absent any proof to the foregoing, there is no basis in granting Ms. X overtime pay.
The preventive suspension of Ms. X was only proper and is clearly within the bounds of law.
Preventive suspension is allowed by Section 122 of the C.H.Ed. Manual of Regulations for Private Higher Education for “ any personnel of a higher education institution .” The provision reads as follows: “xxx A personnel charged for an offense may be placed under preventive suspension pending investigation, when his/her continued presence poses a serious and eminent threat to other persons, the students or personnel and to the institution, and its property. In no case shall preventive suspension exceed a period of thirty (30) days.
Xxx” (emphasis supplied) It is the duty of ABC School to make sure that students will not be gravely affected in their studying and that their grades will reflect the most accurate results of the same. Unless Ms. X is preventively suspended, we can very well expect the awkward scenario in her class, which may even affect her impartiality in grading these students and even her performance. As earlier mentioned, ABC School would likewise wish to prevent any prejudice in the conduct of investigation that may be brought by the influence of her position. Furthermore, Ms. X’s preventive suspension was imposed effective January 30, 2013, until the decision was rendered by February 28, 2013, lasting for only 29 days, clearly within the bounds of law. Hence, there was no violation on the part of ABC School either substantively or procedurally.
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PRAYER ACCORDINGLY, it is most respectfully prayed of this Honorable Labor Arbiter, that decision be rendered: 1.
Dismissing the charges of Ms. X against Respondent A.M.A. COMPUTER COLLEGE, INC. for being bereft of any basis.
2.
Other reliefs just and equitable under the premises are also prayed for. Quezon City, April 10, 2014. XXX LAW OFFICES 2 Floor, No. 80 Roxas Avenue, Quezon City Tel. No. 63-2-1234567 nd
By: ATTY. MARIA NADINE CONCEPCION V. BALIGOD Roll of Attorneys No. 000000 PTR No. 123456/01-08-14/Quezon City IBP Life Roll No.12345/06-14-12/Quezon City MCLE Compliance No. IV – 1234567/ 09-25-12
[email protected]
Copy furnished: (by Registered Mail) Ms. X. Registry Receipt No._________ Date Mailed: _______________ 123 1st Street, Sta. Ana, Manila
EXPLANATION OF SERVICE
A copy of this position paper was sent to herein complainant via Registered Mail with Return Card in lieu of personal service due to time constraints and lack of manpower. VERIFICATION
I, Mr. Ebert Anatalio, Jr., of legal age and a resident of Quezon City, Philippines, after having been duly sworn, hereby depose and state that: 1. I am the representative of respondent ABC School in the aboveentitled case; I have caused the foregoing Position Paper to be prepared; I have read the same, and the allegations therein contained
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are true of my own personal knowledge or based on authentic documents. Quezon City, April 8, 2014
EBERT ANATALIO, JR. Affiant
SUBSCRIBED AND SWORN to before me this ________________, in Quezon City, affiant exhibited to me his ________________________, issued on _________________________.
NOTARY PUBLIC
Doc. No. ____; Page No. ____; Book No. ____; Series of 2014.
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