Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Sub-Regional Arbitration Branch No. 09
Dipolog City

RICHARD A. DAGOT,
Complainant-Appellant, NLRC CASE No.
Sub-RAB-09-04-10017-16

-versus-

DAVAO SECURITY AND

INVESTIGATION AGENCY, INC.,
represented by JHONEL B. CELADES,
Branch Manager,
Respondents-Appellees.
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REPLY TO MEMORANDUM OF APPEAL

RESPONDENTS-APPELLEEs, through the undersigned representative, unto this

Honorable Commission, most respectfully submit this REPLY to complainant-appellant’s
Memorandum of Appeal and in support thereof, to wit:

TIMELINESS OF THE APPEAL

1.) The Memorandum of Appeal was received via post on Saturday, August 6, 2016.
The purpose of such REPLY is to defend, at least in part, the decision of the Honorable
Labor Arbiter Rhett Julius J. Plagata, which was made last July 12, 2016;

2.) The Reply to the Memorandum of Appeal is due to the Commission, 10 days later,
on Tuesday, August 16, 2016;

PARTIES

3.) Complainant-Appellant RICHARD A. DAGOT (complainant-appellant, for

brevity) was a security guard hired by Respondent-Appellee Davao Security and
Investigation Agency, Inc. (DASIA). He is represented by ATTY. JULIFAITH C.
CAPUYAN-ABEJERO who holds office at 2nd Floor, Philja Bldg., Calibo St., Central,
Dipolog City, where it may be served with notices and orders of this Honorable
Commission;

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4.) Respondent-Appellee DAVAO SECURITY AND INVESTIGATION AGENCY,
INC. (DASIA), duly represented by its authorized representative DICKENSON F.
TOGONON (respondents-appellees, for brevity), is a domestic corporation duly
organized under Philippine Laws with principal place of business at Escandor Bldg.,
corner Juan Luna and Damaso Suazo Streets, Davao City, where processes of this
Honorable Commission may be served. Attached is a copy of the Secretary’s Certificate
pertaining thereto as Exhibit “1”;

STATEMENT OF FACTS

5.) Complainant-Appellant was an employee of Davao Security and Investigation

Agency, Inc., and was last assigned as security guard of Dasia Office located at Ikeda
Compound, Katipunan St., Dipolog City;

6.) Occasionally, when complainant-appellant rendered work on rest days or holidays

he is correspondingly paid his rest days and holiday pay. Moreover, when he is required
to work at night he is given night shift differential. Attached is his copy of computer
generated pay slips as annexes “B1-B3”of Respondent’s Position Paper;

7.) Before being assigned at DASIA Office, complainant-appellant was formerly

assigned as a security guard of Metrobank-General Luna, Dipolog City;

8.) During complainant-appellant’s tour of duty in Metrobank, he encountered

problems in performing his duty to his Osteoarthritis. Copy of Medical Certificate is
herein attached as Annex “C” of Respondent’s Position Paper;

9.) On December 4, 2015, complainant-appellant received a notice to explain letter

from Respondent DASIA thru Branch Manager Jhonel Celades, informing him about the
complaint of Metrobank Head Security Command Unit about his performance. A copy of
the notice to explain is herein attached as Annex “D” of Respondent’s Position Paper;

10.) On December 5, 2015, complainant-appellant explained that because of his health

problems, he cannot perform very well as a security guard of Metrobank and asked
DASIA a transfer to another post. A copy of complainant-appellant’s letter is herein
attached as Annex “E” of Respondent’s Position Paper;

11.) On December 7, 2015, DASIA accommodated complainant-appellant’s request

and assigned him as security guard of DASIA to its Dipolog Branch Office, but this time
his duty hours are less than what he has with Metrobank to help him recover with his
health problem. And when he recovers, DASIA will find him a new posting that would
give him the same duty hours as what he has with Metrobank. A copy of the re-
assignment order is herein attached as Annex “F” of Respondent’s Position Paper;

12.) After complainant-appellant’s duty on February 10, 2016, he did not report for
work anymore;

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13.) On February 15, 2016, DASIA General Headquarters (Davao City) received a
Single-Entry Approach (SENA) summons from NLRC about Complainant-Appellant’s
complaint against it;

14.) DASIA immediately informed its DASIA-Dipolog Branch Manager Jhonel

Celades about the complaint. He was shocked to learn that complainant-appellant filed a
case for illegal dismissal when he did not terminate the latter from service;

15.) On the first SENA, dated February 23, 2016, respondent-appellee notified
complainant-appellant to return to work and perform his duty as DASIA-Dipolog Branch
Security Guard. However, Complainant-Appellant is no longer interested to return to
work and asking for his separation pay and his cash bond;

16.) No settlement was made between parties;

17.) Respondent-Appellee’s Position Paper is verified in contradiction to the allegation

of complainant-appellant in his Memorandum of Appeal to wit:

”15.) That complainant-appellant received copies of Position Paper (for

Respondent DASIA) only on June 29, 2016 and its Reply on July 5, 2016,
both by registered mail. The said Position Paper and Reply were both NOT
VERIFIED, contrary to what is prescribed under the rules; (EMPHASIS
SUPPLIED.)

18.) On the 6th of June 2016, respondents-appellees submitted Position Paper (for
Respondent DASIA) with Verification and Certification of Non-Forum Shopping signed
and executed by DASIA’s authorized Representative, Eugene M. Alfaras. Attached are
copies of authorized representative’s Secretary’s Certificate pertaining thereto as Annex
“A” of Respondent’s Position Paper (for respondent DASIA);

19.) On July 12, 2016, a Decision was rendered by the Honorable Labor Arbiter Rhett
Julius J. Plagata in favor of respondent-appellee DASIA, therefore, dismissing the case
for lack of merit;

20.) On August 6, 2016, respondents-appellees received complainant-appellant’s

Memorandum of Appeal dated August 1, 2016;

21.) Hence, this Reply to Memorandum of Appeal;

REBUTTAL/DISCUSSIONS

22.) The Honorable Labor Arbiter correctly decided the case in accordance with
prevailing jurisprudence and laws;

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 I. Complainant-Appellant was not
illegally dismissed.

23.) The Labor Arbiter is correct that the complainant-appellant was not illegally
dismissed because there was no dismissal in the first place. He was not at all dismissed.
Complainant-Appellant terminated his own employment by not reporting for work after
10 February 2016 (DECISION, p. 4);

24.) In this case, it cannot be said that the complainant-appellant was illegally
dismissed, there being no showing in the first place, that the respondent-appellee agency
terminated his service.
Neither suspension nor termination was made. Respondent-Appellee did not even
move for the dismissal the complaint. (Respondent’s Position Paper);

25.) Complainant-Appellant is guilty of abandonment by refusing to report for work,

thus, completely severing his own employment with DASIA;

26.) To constitute abandonment of work, two elements must concur: (1) the employee
must have failed to report for work or must have been absent without valid or justifiable
reason; and (2) there must have been a clear intention on the part of the employee to
sever the employer-employee relationship manifested by some overt act. (Cosare vs
Broadcom Asia, Inc., 715 SCRA 534);

27.) Abandonment is a form of neglect of duty, one of the just causes for an employer
to terminate an employee. It is a hornbook precept that in illegal dismissal cases, the
employer bears the burden of proof. For a valid termination of employment on the ground
of abandonment, the employer must prove, by substantial evidence, the concurrence of
the employee’s failure to report for work for no valid reason and his categorical intention
to discontinue employment. (Martinez vs B&B Fish broker and Lucinario, GR No.
179985, September 18, 2009);

28.) We beg to disagree that complainant-appellant’s refusal to report back for work
was due to the clear act of discrimination and insensibility of respondents-appellees that
became so unbearable that made the former decide to forego his continued employment.
(Complainant-Appellant’s MEMORANDUM OF APPEAL, p. 8, Emphasis Supplied.)

29.) As provided in the Decision rendered by the Honorable Labor Arbiter, it is clear
that complainant-appellant was not illegally dismissed:

“In the first place, he was not at all dismissed. He himself stopped working
on 10 February 2016, when his request for fifteen (15) straight days every
half instead of only ten (10), was refused by DASIA. The letter, through
Branch Manager Celades, even asked him to report back for work during
SENA proceedings, but the complainant refused to do so. Thus, it is clear
that he himself severed his own employment with DASIA.” (DECISION,
p.3)
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30.) Based on the above-quoted statement, it is clear that Branch Manager Celades
made an effort for complainant-appellant to continue his work by asking him to report
back for work but the latter has no more intent to return. Moreover, complainant-
appellant ask for his separation pay and cash bond;

The Honorable Labor Arbiter

is correct that complainant-appellant’s
presentation for constructive dismissal
is misplaced and cannot be considered
in the resolution of the case.
(DECISION, p.3.)

31.) Constructive dismissal must likewise fail. (DECISION, p.4);

32.) Constructive dismissal exists where there is cessation of work because "continued

employment is rendered impossible, unreasonable or unlikely, as an offer involving a
demotion in rank or a diminution in pay” (Globe Telecom, Inc. v. Florendo-Flores, 438
Phil. 756, 766 (2002) citing Philippine Japan Active Carbon Corporation v. NLRC, et
al., 253 Phil. 149, 152, (1989). ) and other benefits;

33.) It must be remembered that the complainant-appellant’s transfer from Metrobank

to DASIA’s Dipolog Office was due to his ailment of osteoarthritis, which entailed his
going on leave for (7) days starting on 23 November 2015, and raised questions from
Metrobank’s Head security about his fitness for work as a bank security guard.
(DECISION, p. 4);

II. The Honorable Labor Arbiter in finding

that there is nothing wrong in the reduction
of Complainant-Appellant’s bimonthly work
from fifteen (15) days to ten (10) days in view
of his ailment of osteoarthritis.

34.) There is nothing wrong for the reduction of complainant-appellant’s bimonthly

work from fifteen (15) days to only ten (10) days in view of his above-mentioned
ailment. He cannot have his cake and eat it too, so to speak, by continuing to work as
before while stricken with osteoarthritis which rendered him practically unfit for work as
a security guard or not. (Ibid.);

35.)  As far as the saying goes, complainant-appellant cannot or should not have or
want more than one deserves or can handle. He cannot have the best of both worlds.
Complainant-Appellant must be thankful that even he is rendered unfit for work,
respondent-appellant still allows him to work;

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36.) The managerial’s prerogative of transferring him from Metrobank to DASIA
Dipolog Office was not exercise with grave abuse of discretion. The transfer is
reasonable, convenient and not prejudicial to complainant-appellant. It does not involve a
demotion in rank or a diminution of his salaries, privileges and other benefits;

37.) On the money claim themselves, DASIA’s pay slips (Complainant’s Position
Paper, Annexes B to B-7) and payrolls (Respondent’s Position Paper, B-1 to B-3) show
due payment of holiday premium, rest day premium, night shift differential and service
incentive leave pay. (DECISION. Pages 4-5);

III. Complainant-appellant is not

Entitled to Separation pay.

38.) Separation pay is, however, granted when reinstatement is no longer feasible
because of strained relations between the employer and the employee. In cases of illegal
dismissal, the accepted doctrine is that separation pay is available in lieu of reinstatement
when the latter recourse is no longer practical or in the best interest of the parties.
(Leopard Security and Investigation Agency v. Quitoy, G.R. No. 186344, February 20,
2013, 691 SCRA 440, 450-451.);

39.) However, complainant-appellant is not entitled to separation pay because he was

neither dismissed nor terminated from employment. Further, separation pay is one of the
reliefs granted only to illegally dismissed employees. In the present case, since it is
crystal clear that complainant-appellant was not illegally dismissed, then, award of
separation pay shall not be entertained. The Honorable Labor Arbiter is correct that
complainant-appellant is not entitled to separation pay;

The Honorable Labor Arbiter

is correct that complainant-appellant
cannot claim for damages and Attorney’s fees.

40.) On the claim for damages, in the light of the preceding asseverations, the same are
baseless and unwarranted, and hence, cannot prosper. (DECISION. P. 5);

41.) Damages are only awarded to a complainant in a labor case if he or she is

dismissed from work. (Suario vs BPI and NLRC, 175 SCRA 699; Garcia vs NLRC 235
SCRA 632);

42.) In the case of SARONA vs NLRC, et. al., GR no. 185280, January 18, 2012, it
was held (a) that moral damages may be recovered where the dismissal of the employee
was tainted by bad faith or fraud, or where it constituted an act oppressive to labor, and
done in a manner contrary to morals, good customs or public policy and (b) that
exemplary damages are recoverable if the dismissal was done in a wanton, oppressive, or
malevolent manner;

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43.) In the present case, award for moral damages is baseless and unwarranted because
complainant-appellant was never dismissed. (RESPONDENT’s POSITION PAPER, p.4,
Emphasis Supplied). Complainant-Appellant was not dismissed legally or illegally. He
terminated his own employment by not anymore reporting for work after 10 February
2016 (DECISION. p. 3);

44.) Award for attorney’s fees shall also fail. Attorney’s fees are only given if the
litigants were forced to go to court because of the unjust refusal of the other party to give
their claims. In the case at bar, there was no indication that respondent unjustly refused to
give his claim. (REPLY TO COMPLAINANT’s POSITION PAPER, p. 2);

PRAYER

Wherefore, in the light of the foregoing premises, it is respectfully prayed unto

this Honorable National Labor Relations Commission to SUSTAIN the Decision of the
Labor Arbiter for the reason that it is correct, not tainted with serious errors and palpable
mistake and not rendered with grave abuse of discretion amounting to lack or in excess of
jurisdiction.

Respondents-Appellees pray such other reliefs which may be just and equitable
under the premises.

In the City of Davao for Dipolog City this 16th day of August 2016.

DICKENSON F. TOGONON
Authorized Representative
For Respondent-Appellee DASIA

Copy furnished by Registered Mail with Return Card:

RICHARD A. DAGOT
Complainant-Appellant
Purok Paraiso, Galas,
Dipolog City, Zamboanga del Norte,
Philippines

Registry Receipt No. ________________ Date: August 16, 2016

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 EXPLANATION FOR MAILING

Copy of the foregoing Reply to Memorandum of Appeal was sent through

registered mail in view of the distance and lack of manpower to effect personal service.

DICKENSON F. TOGONON
Authorized Representative
For Respondent-Appellee DASIA