REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
PPSTA BLDG., BANAWE AVE., QUEZON CITY

OFFICE OF LABOR ARBITER x x x

ROOM 311, 3RD FLOOR, PPSTA BLDG.

PAMELA ANGELICA PALACIO,

Complainant,
NLRC RAB NCR
- Versus - CASE NO. NCR-
EXL SERVICES PHILIPPINES
Respondents.
x-------------------------------------------------------x

POSITION PAPER

The COMPLAINANT respectfully states:

I. STATEMENT OF THE CASE

1. That I have been hired as a Recruitment Associate by EXL Service Philippines Inc. located at 9th
Floor Plaza E Building, Northgate Cyberzone, Alabang, Muntinlupa City since 13th of February
2019;
2. That I have the status of a regular employee as of date;
3. That on 26nd of June 2019, I sent an e-mail using my company account which includes scanned
copies of documents necessary for a new job opportunity of a colleague who recently departed
from the company, which during that time is in my possession;
4. That on 22nd of July 2019, Giandro Padilla, HR manager, received an e-mail memo, marked as
ANNEX B – 1, from the management regarding the aforementioned e-mail, asking to identify the
classification of documents sent – as the act of sending the same would apparently constitute a
violation of company policy on confidentiality – and make the necessary investigation on the
matter;
5. That I was given a notice by Giandro with regard the memo informing me that it is a ground for
termination as per company policy if the e-mail is not authorized and if it contains information
necessary and confidential to the company in view of company policy on confidentiality of
company information;
6. That I was not given a copy of such company policy, hence, I am not aware of the gravity of the
infraction;
 7. That in view of Giandro’s inquiry on the matter, I responded that such e-mail contains neither
confidential information from the company nor related to work that would render a breach of
company policy;
8. That Giandro conveyed to the management through e-mail, marked ANNEX B – 2, the result of
the inquiry;
9. That up to date, the investigation is still on-going and there is no update regarding the matter; and
10. That there is no decision rendered in relation to the case;
11. Finally, that these statements are based on truth and my personal knowledge.

II. ISSUE

The sole issue is whether or not the complainant is entitled to the reliefs prayed for in his complaint
on the ground of illegal dismissal, that is, reinstatement, backwages, money claims, and moral
and exemplary damages, and attorney’s fees.

III. DISCUSSION

PERTINENT PROVISIONS OF THE EMPLOYMENT CONTRACT MARKED AS ANNEX A

The employment contract provided by EXL defines “Confidential Information” to be as follows:

“… shall include all information, whether written or oral, that is not known
by, or not generally available to, the public at large and that concerns the
business, activities, financial affairs, trade secrets, technology of the
Company or otherwise relates to the Company, in any manner whatsoever,
its customers, their clients, suppliers and other businesses or entities, with
whom the Company does business, which may come to your knowledge
or possession during the tenure of your employment with the Company.”1

The employment contract likewise provides the ground for termination of their employees:

“… The Company reserves the right to terminate your employment upon

just or authorized cause. The term “just cause” shall include but shall not
be limited to the following:

a) Your serious misconduct or willful disobedience of the lawful orders

of the Company or its representative in connection with your work;
gross and habitual negligence in the performance of your duties;
willful or continued failure or refusal to perform any duties
reasonably requested in the course of your employment with the
Company (other than a failure resulting from your disability, as
defined in the Company’s long-term disability plans applicable to
you);

1
Page 3 of the ‘Employment Contract' with EXL
 b) Fraudulent, dishonest or other improper conduct engaged in by you that
causes, or has the potential case, harm to the Company, or its business
or reputation, including, without limitation, through serious or persistent
violation of any obligation owed by you under your employment, criminal
activity, habitual drunkenness or use of illegal drugs, commission of a
crime or offense by you against the Company or any of its duly authorized
representatives or employees;

c) Material breach by you of this agreement including engaging in

competitive activity or in the direct or indirect solicitation of employees in
violation of any applicable contract, agreement, or policy; or a failure by
you to give a notice of resignation as required by any applicable contract,
agreement, or policy; or

d) Other causes analogous to the following.”2 (emphasis supplied)

APPLICABLE LAWS AND JURISPRUDENCE

The Right to Manage People; In General

“The right of an employer to regulate all aspects of employment, aptly called "management
prerogative," gives employers the freedom to regulate, according to their discretion and best
judgment, all aspects of employment, including work assignment, working methods, processes to
be followed, working regulations, transfer of employees, work supervision, lay-off of workers and
the discipline, dismissal and recall of workers. In this light, courts often decline to interfere in
legitimate business decisions of employers. In fact, labor laws discourage interference in
employers' judgment concerning the conduct of their business.”3

Hence, in San Miguel Brewery Sales v. Ople, the Supreme Court held that “except as limited by
special laws, an employer is free to regulate, according to his own discretion and judgment, all
aspects of employment, including hiring, work assignments, working methods, time, place and
manner of work, tools to be used, processes to be followed, supervision of workers, working
regulations, transfer of employees, work supervision, layoff of workers and the discipline,
dismissal and recall of workers.”4

The Right to Discipline and the Power to Dismiss

The employer has the prerogative to instill discipline in his employees and to impose reasonable
penalties, including dismissal, on erring employees pursuant to company rules and regulations.5
(emphasis supplied)

2
Page 5 of the ‘Employment Contract’ with EXL
3
G.R. No. 212054
4
G.R. No. 207315
5
G.R. No. 87277
It will be highly prejudicial to the interests of the employer to impose on him the services of an
employee who has been shown to be guilty of the charges that warranted his dismissal. It will
demoralize the rank-and-file if the undeserving, if not undesirable, remains in the service.6

However, the power to dismiss is not absolute. An employer, generally, can dismiss or layoff an
employee for just and authorized causes enumerated under Article 282 and 283 of the Labor
Code.

“The employer is bound to exercise caution in terminating the services of his employees… Due
process must be observed in dismissing an employee because it affects not only his position but
also his means of livelihood. Employers should, therefore respect and protect the rights of their
employees, which include the right to labor.”7

JUST CAUSES OF TERMINATION AND SERIOUS MISCONDUCT AS A GROUND FOR

DISMISSAL

Art. 282 of the Labor Code provides the following:

Art. 282. Termination by employer. An employer may terminate an

employment for any of the following causes:

a. Serious misconduct or willful disobedience by the employee of the

lawful orders of his employer or representative in connection with
his work;

b. Gross and habitual neglect by the employee of his duties;

c. Fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;

d. Commission of a crime or offense by the employee against the person of

his employer or any immediate member of his family or his duly
authorized representatives; and

e. Other causes analogous to the foregoing. (emphasis supplied)

Misconduct is improper or wrong conduct. It is transgression of some established and definite rule
of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and
not mere error in judgment. The misconduct to be serious within the meaning of the Act must be
of such grave and aggravated character and not merely trivial or unimportant. Such misconduct,
however serious, must, nevertheless, be in connection with the employee’s work to constitute just
cause for his separation.8

6
G.R. No. 74229
7
G.R. No. 68147
8
Azucena, citing Dept. of Labor Manual, Sec. 4343.01.
Moreover, “a series of irregularities when put together may constitute serious misconduct which,
under Article 283 of the Labor Code, is a cause for just dismissal.9

CONSEQUENCES OF ILLEGAL TERMINATION

The consequences of illegal dismissal are stated under Art. 279 of the Labor Code, as amended
by Section 34 of Republic Act No. 6715:

Art. 279. Security of tenure. - In cases of regular employment, the

employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss
of seniority rights and other privileges and to his full backwages,
inclusive of allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation was withheld
from him up to the time of his actual reinstatement. (As amended by
Section 34, Republic Act No. 6715, March 21, 1989). (emphasis supplied)

Reinstatement is the restoration of the employee to the state from which he has been unjustly
removed or separated without loss of seniority rights and other privileges. The reinstatement order
by the Labor Arbiter is immediately executory without need to petition for a writ of execution.

Backwages is a remedy affording the employee a way to recover what he has lost by reason of
the unlawful dismissal. The illegally dismissed employee has a right to his backwages. The failure
to claim backwages in the complaint for illegal dismissal is a mere procedural lapse which cannot
defeat a right granted under substantive law.10

IV. APPLICATION TO THE CASE

I. THE INFRACTION DOES NOT FALL UNDER THE GROUND OF SERIOUS MISCONDUCT

Applied to the instant case, EXL may not validly dismiss her on the ground of serious misconduct
in line with her alleged infraction of company policy. As stated on the facts, the e-mail sent by
Pamela does not contain any matters that “concerns the business, activities, financial affairs,
trade secrets, technology of the Company or otherwise relates to the Company.”

To reiterate, the e-mail sent by Pamela only contains the scanned copies of specific
documents, namely application forms for SSS and a Resorts World job application in the
possession of Pamela, which is needed by a former colleague. Clearly, these documents were
not issued by and for EXL, and does not contain material information that, when leaked to
“outsiders”, would prove to be inimical to the business of EXL. Provided that the infraction
fails to satisfy the requisite for serious misconduct under the law, Pamela was illegally dismissed.

9
Piedad v. Lanao del Norte
10
St. Michael’s Institute v. Santos, G.R. No. 145280
 II. DEFENDANT’S NEGLIGENCE

Further, it is hereby alleged that the company has committed negligence in making the company
policy known to its employees. The specific company policy was known improperly made known
to her. As earlier stated, when she was employed in the middle of the workweek that she has not
been given a proper orientation. It has been a company culture of EXL that orientations are held
on a Monday or on the beginning of the workweek. Hence, those who were hired in the during in
the middle of the workweek, including Pamela, did not attend any orientation with regard the
matter.

The employment contract between her and EXL also does not show the company policy of the
employer regarding the latter’s access to the e-mails sent by their employees using the company
account. Pamela only obtained knowledge of this company policy when she sent the June 26
email and received a warning from their HR Manager. Within the work premises, there is no
information of any kind, such as those posted on bulletin or announcement boards, that shows
the existence of the company policy regarding company emails. Management policies
implemented by the employer should be reasonable, and to be reasonable, they must at least be
well-known.

III. COMPLAINANT IS ENTITLED TO THE RELIEFS HEREIN PRAYED FOR

It must be stressed that the complainant has the right to security of tenure and may be dismissed
only for just or authorized causes under the law. From the foregoing, it clearly shows that the
complainant was illegally dismissed. The misconduct committed by the complainant does not
render for its termination for it is in the nature of a serious misconduct nor it was not grave in
character that prejudices the defendant.

Therefore, complainant shall be reinstated without loss of her seniority rights and other privileges
as well as her full backwages, allowances, and hher other benefits or its monetary value to be
computed from the time it was withheld from here as provided by the Labor Code.

V. PRAYER

WHEREFORE, premises considered, it is respectfully prayed that judgment be issued declaring that the
complainant has been ILLEGALLY DISMISSED by the defendant and order for her;

FURTHER, it is respectfully prayed that the respondents be ordered to pay or issue to the complainant, as
the case may be:

a) BACKWAGES from the date of his illegal dismissal on ______ up to the time he is REINSTATED
to his former position without loss of seniority and other benefits.
b) MORAL DAMAGES of P100, 000.00
c) EXEMPLARY DAMAGES of P100,000.00.
d) His RECEIVABLES representing salaries and other benefits due him in the amount of __________
e) Attorney’s fees of Ten Percent of Damages AWARDED.
f) His CERTIFICATE OF EMPLOYMENT whether or not he is reinstated.

FINALLY, the complainants respectfully prays for such and other reliefs as may be deemed just and
equitable in the premises.

Xxx City, November 26, 2016.

MS. PAMELA ANGELICA PALACIO
Complainant
Address: 278 San Pacracio St. San Antonio Valley 1, Sucat, Parañaque City

SUBSCRIBED AND SWORN TO BEFORE ME in xxx City on November 28, 2016, affiant showing
his competent proof of identity as follows: ____________

Notary Public
Doc. No.
Page No.
Book No.
Series of 2016.

Copy Furnished:

Atty. Xxx Xxx

Counsel for Respondents
(To be personally given during the
hearing on November 29, 2016 at 10:000 AM)