Documente Academic
Documente Profesional
Documente Cultură
POSITION PAPER
COMPLAINANT unto this Honorable Labor Arbitration Office most
respectfully submits this position paper and avers the following to wit:
PREFATORY STATEMENT
The Complainant in this case is JUNTINO S. ALAIR, of legal age,
single, with post office address at 753 Quirino Highway San Bartolome
Novaliches, Quezon City where he could be served with summons and
other legal processes of this Honorable Office.
The Respondent is LOCKHEED DETECTIVE & WATCHMAN AGENCY,
INC., a business establishment owned by Mr. Esteban Uy, with business
address at EU State Tower, 30 Quezon Ave. Quezon City, where the said
establishment and representative could be served with summons and
other legal processes of this Honorable Office.
STATEMENT OF FACTS
The Complainant was an employee, hired as a Security Guard by the
Respondent, Lockheed Detective & Watchman Agency, Inc. on September
1993. From then on, he was assigned by the Respondent to its various
clients within Metro Manila area.
Respondent is to deploy Security Guards to its various clients all over the
Philippines with known sister companies involved in the same line of
business like ADVANCE FORCES SECURITY & INVESTIGATION SERVICES,
INC, where in fact, the Complainant was deployed by the Respondent
sometime in 1998 for more or less five (5) to six (6) months (a copy of the
issued Identification Card is attached hereto as Annex A),
Complainant is just one of its
the
latest payslips
told by the Respondent that their contract with their client BIR was no
longer renewed and thus were told to wait for their next assignment or
posting. Thereafter, Complainant made follow- ups in the Respondents
office regarding his next assignment or posting however was told by the
officer- in- charge to wait and in fact in some instances told that he was
already old to be assigned to some posts/ or of because of clients
preference. He was given the impression that he was already old to be
assigned to some place of duty/ clients.
The Complainant was not given any monthly pay by the Respondent
starting from his last assignment or duty (February up to this date).
Disappointed with the Respondents response on his wish to finally
be given another post/ duty, complainant filed the instant complaint
before this Honorable Office on September 8, 2014.
On September 16 and 23, 2014, a mandatory conciliation and
mediation conferences were held but no settlement was reached, although
the Respondent through its representative/ counsel offered by way of
settlement an amount of more or less Php 100,000. Further a mandatory
conference on October 8 and 15, 2014 were held for a possibility of
amicable settlement and determination of other matters. However, on the
last day of the hearing, October 15, 2014, the counsel/ representative for
the Respondent offered the Complainant a Detail Duty Order / Special
Order for Assignment at Quezon City Hall (as reflected in the minutes of
that last hearing herein attached as Annex E) but the latter did not
accept the belated offer. The Complainant gave the indication that due to
strained relations and the insinuation that he is already old to be given
another position / duty refused to be reinstated. As a consequence, this
Honorable Office issued an order directing the parties to submit their
respective position paper.
Hence, this position paper.
ISSUES
1. WHETHER
OR
NOT
THE
COMPLAINANT
WAS
ILLEGALLY
DISMISSED.
2. WHETHER OR NOT COMPLAINANT IS ENTITLED TO SEPARATION
PAY OF 1 (ONE) MONTH SALARY FOR EVERY YEAR OF SERVICE,
13TH MONTH PAY FOR THE YEAR 2014, SERVICE INCENTIVE LEAVE
PAY, HOLIDAY PAY, OVERTIME/ NIGHT DIFFERENTIAL PAY, UNIFORM
ALLOWANCE, BACKWAGES AND OTHER BENEFITS MANDATED BY
LAW.
3. WHETHER OR NOT, THE RESPONDENT IS LIABLE TO THE
COMPLAINANT FOR EXEMPLARY DAMAGES AND MORAL DAMAGES.
4. WHETHER OR NOT COMPLAINANT IS ENTILED TO RECOVER
ATTORNEYS FEES FROM RESPONDENT.
DISCUSSIONS
FIRST ISSUE: (ILLEGAL DISMISSAL)
From the foregoing facts, it is clear that the dismissal of the
complainant was illegal thus he should be paid of his separation pay as
provided by law. The Respondent was put on a Floating Status for a
period exceeding six (6) months. The "floating status" of such an
employee should last only for a reasonable time. As in the case of Agro
Commercial Security Services, Agency, Inc. vs NLRC (G.R. Nos. 82823-24,
July 31, 1989) where in this case, respondent labor arbiter correctly held
that when the "floating status" of said employees lasts for more than six
(6) months, they may be considered to have been illegally dismissed from
the service. Thus, they are entitled to the corresponding benefits for their
separation.
Further in Sentinel Security Agency, Inc. vs. NLRC, et.al. (G.R.
122468, Sept. 3, 1998), states that, A floating status requires the dire
exigency of the employers bona fide suspension of operation, business or
undertaking. In security services, this happens when the clients that do
not renew their contracts with a security agency are more than those that
do and the new ones that the agency gets. However, in the case at bar,
the Agency was awarded a new contract by the Client.
surplus of security guards over available assignments.
There was no
If there were, it
was because the Agency hired new security guards. Thus, there was no
suspension of operation, business or undertaking, bona fide or not, that
would have justified placing the complainants off-detail and making them
wait for a period of six months. If indeed they were merely transferred,
there would have been no need to make them wait for six months. The
only logical conclusion from the foregoing discussion is that the Agency
illegally dismissed the complainants.
In all indications the Respondent has no reason not to give another
duty or position to the Complainant for a period exceeding six (6) months
considering it is one of the biggest Security Agencies in the country with
known other sister security agencies as mentioned in the foregoing. The
Respondent in fact continues to hire new Security Guards and have posted
them all over their clients here in Metro Manila and the rest of the country.
The Respondent has so many clients in the country, the belated offer of
the Respondent of a new Detail/ Duty assignment to the Complainant
bears this out and as per knowledge of the latter that assignment being
offered (at the Quezon City Hall) was already existing a long time ago.
Thus, constructive dismissal is glaring in this instant case.
SECOND ISSUE: (SEPARATION PAY OF 1 (ONE) MONTH SALARY FOR EVERY
YEAR OF SERVICE, 13TH MONTH PAY FOR THE YEAR 2014, SERVICE
INCENTIVE LEAVE PAY, HOLIDAY PAY, OVERTIME/ NIGHT DIFFERENTIAL PAY,
UNIFORM ALLOWANCE, BACKWAGES, AND OTHER BENEFITS MANDATED BY
LAW.)
As to the entitlement of 13th Month pay, service incentive leave pay,
holiday pay premiums, overtime/ night differential pay, uniform allowance
The complainant by
reason of the illegal dismissal was deprived of his 13th Month pay, service
incentive leave pay, holiday pay premiums, overtime/ night differential
pay, uniform allowance and other benefits.
The Complainant does not pray for reinstatement; in fact, opted not
to be reinstated. Thus, following the case of Sentinel Security Agency, Inc.
vs.
NLRC,
et.al.
(G.R.
122468,
Sept.
3,
1998)
when
however,
reassign them to the Client, as the former has recruited new security
guards; the complainants, on the other hand, refuse to accept other
assignments. Verily, complainants do not pray for reinstatement; in fact,
they refused to be reinstated.
in Philippine Industrial
Security Agency Corp. vs. Dapiton (377 Phil. 951, 966 (1999), that the
backwages had to be paid by the employer as part of the price or penalty
he had to pay for illegally dismissing his employee. It was to be computed
from the time of the employees illegal dismissal up to the time of his
reinstatement.
THIRD ISSUE: ( EXEMPLARY DAMAGES AND MORAL DAMAGES)
The herein Complainant is entitled to moral damages because the
dismissal of the complainant was attended by bad faith of constitutive of
an act oppressive to labor. In the case of Lim vs. National Labor Relations
Commission (G.R. No. 79907,
PRAYER
2.
3.
4.
as moral
Other reliefs just and equitable under the premises are also prayed
for.
RESPECTFULLY SUBMITTED.
Quezon City, November 3, 2014.
JUNTINO S. ALAIR
Affiant
NOTARY PUBLIC
ANNEX A
ANNEX B
10
11
ANNEX C
12
13
ANNEX D
14
ANNEX E
15