Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

______________________,
Complainant,

-versus- NLRC-NCR CASE No.__________

Hon. Labor Arbiter ________________
______________________,
Respondent.

x--------------------------------------x

REPLY
(to Respondents’ Position Paper)

Complainant, _______________________, pro se,

respectfully states that:

PREFATORY STATEMENT

No person shall be deprived of life, liberty or property without

due process of law, nor shall any person be denied the equal
protection of the laws.

Employment is not merely a contractual relationship; it has

assumed the nature of property right. It may spell the difference
whether or not a family will have food on their table, roof over their
heads and education for their children. It is for this reason that the
State has taken up measures to protect employees from unjustified
dismissals. It is also because of this that the right to security of
tenure is not only a statutory right, but more so, a Constitutional
right.

Without the protection accorded by our laws and the tempering

of courts, the natural and historical inclination of capital to right
roughshod over the rights of labor would run unabated.

REPLY TO RESPONDENT’S POSITION PAPER--1

 I

THE ON-LINE SELLING

ACCOUNT IS NOT SOLELY
OPERATED BY THE
COMPLAINANT AND HAS BEEN
EXISTING PRIOR
COMPLAINANT’S
EMPLOYMENT IN
RESPONDENT COMPANY

1.1 The on-line selling account named ”________________” 1,

though registered in the name of the complainant, has already been
existing even before she was employed with the respondent
company. Further, the said account is not solely operated by her but
also by her mother and sisters.

1.2 The said account was initially created by the complainant

when she was still working in Dubai sometime in the year 2015, or
four (4) years ago. During the said year, complainant was looking for
an extra income to augment her family’s financial needs, hence, need
to send additional support to her family paved the way for her to
explore this avenue. With the birth of this idea and the creation of
the said account, complainant followed through with the reselling of
U.S. made cosmetics.

1.3 Prior the year 2017, complainant already laid low in her
online selling endeavor thus it became a dormant account.

1.4 It was only in September 25, 2019, that complainant

encountered again the said account, now as a subject of a violation
allegedly committed by the complainant.

II

NOTICE TO EXPLAIN ISSUED

BY THE RESPONDENTS DO
NOT CONFORM WITH THE
REQUIREMENTS OF A VALID
PROCEDURAL DUE PROCESS

2.1 Contrary to the insinuations of the respondents in their

Position Paper, they may have mistakenly entertained the idea that

1
Image of the screenshot of “______________________” account marked as Annex “I”

REPLY TO RESPONDENT’S POSITION PAPER--2

mere serving a notice to explain to the allegedly erring employee is
enough due process in itself.

2.2 Respondents maliciously unloaded alleged violations against

the complainant, all in one Notice to explain. A careful perusal of the
alleged violations would reveal that the violations are vague and are
of different nature.

2.3 As an employee, I am fully aware that violations are

treated according to a progressive discipline policy and that different
violations are differently sanctioned from one another. Grave
offenses may possibly be meted immediately with termination while
lesser offenses would possibly merit a stern warning and or, perhaps,
suspension. Yet, despite the differences in the gravity of penalties
that may be imposed, each violation should be communicated
properly and immediately to the concerned employee with due
regard to a valid due process.

2.4 A stern warning is the company’s recourse in addressing

the said violation while communicating such to the erring employee.
At this point, though the alleged violation may be viewed by the
respondent as a terminable offense, due process may not be
dispensed with nor actions with semblance of due process be a valid
compliance and termination is definitely not in order.

2.5 This opportunity to be sincerely heard was never

accorded to the complainant. Instead, complainant was placed by the
respondent in a very prejudicial position of haphazardly making
herself explain her side in just three meager (3) days resulting to a
pressured, poorly thought and ill-crafted written explanation.

2.6 The case of King of Kings Transport 2 enlightens us with

what Reasonable Opportunity in the concept of procedural due
process means.

“Reasonable opportunity, under the

Omnibus Rules means every kind of
assistance that management must accord to
the employees to enable them to prepare
adequately for their defense. This should be
construed as a period of at least five (5)
calendar days from receipt of the notice to
give the employee an opportunity to study the
accusation against them, consult a union
2
King of kings Transport, G.R. No. 166208, June 29, 2007

REPLY TO RESPONDENT’S POSITION PAPER--3

 official or lawyer, gather data and evidence
and decide on the defenses they will raise
against the complaint.

Moreover, in order in order to enable

the employees to intelligently prepare their
explanation and defenses, the notice should
contain a detailed narration of the facts and
circumstances that will serve as basis for the
charge against the employees. A general
description of the charge will not suffice.
Lastly, the notice should specifically mention
which company rules, if any, are violated
and/or which is among the grounds under Art.
296 is being charged against the employees.

After determining that termination of

employment is justified, the employers shall
serve the employees a written notice of
termination indicating that all circumstances
involving the charge against the employees
have been considered and the grounds have
been established to justify the severance of
their employment.”

2.7 Starting with an erroneous first step, complainant was, all

the more, shattered during the issuance of the Investigation Findings
and Disciplinary Action wherein the complainant’s employment was
effectively terminated. This was then followed by a truly debilitating
event- the personal verbal communication by no less
than___________________, Inc. President, Mr._________________
telling complainant that the decision of the board in terminating her
employment is final and conclusive, that the board follows not the
Philippine Labor Laws and that it is best that complainant voluntarily
tender her resignation to avoid the unilateral termination.

2.8 In this instant case, respondents failed to observe

procedural due process when the Notice to explain they issued did
not contain a clear and unequivocal narration of the facts and
circumstances that will serve as basis for the charge against
complainant. The three (3) day period accorded to complainant is not
enough for her to intelligently prepare her explanation and defenses,
study the accusations against her, to consult a lawyer, gather data
and evidence and decide on the defenses she ought to raise against
the alleged violations.
III
REPLY TO RESPONDENT’S POSITION PAPER--4
COMPLAINANT’S DISMISSAL
IS NOT VALID.

3.1 The respondents, in terminating the employment of the

complainant relied on their allegation of breach of contract and
unauthorized sale of company products.

3.2 The basis laid down by the respondent against the

complainant does not hold water. Clearly, the provision they are
relying upon is not applicable to the alleged violation they charged
the complainant because, what the said provision embraces, when
taken into its entirety, are matters concerning “Confidential
information / information concerning the secrets, business or affairs
of the company (Amore pacific)” and not the pricing of its products.

3.3 Also, the basis of the respondent as regards the alleged

violation of protection of trade secrets does not stand on all fours.
The complainant did not establish or manage any business entity that
uses or is likely to use the Company’s trade secrets during the period
of her employment and even after the severance of such, nor
cooperated with any other entity or proprietor by giving advice.

3.4 In Cocoland Development Corporation v. National Labor

Relations Commission,3 the issue was the legality of an employee’s
termination on the ground of unauthorized disclosure of trade
secrets. The Court laid down the rule that any determination by
management as to the confidential nature of technologies, processes,
formulae or other so-called trade secrets must have a
substantial factual basis which can pass judicial scrutiny . The
Court rejected the employer’s naked contention that its own
determination as to what constitutes a trade secret should be binding
and conclusive upon the NLRC.

3.5 As a caveat, the Court said that to rule otherwise would

be to permit an employer to label almost anything a trade
secret, and thereby create a weapon with which he/it may
arbitrarily dismiss an employee on the pretext that the latter
somehow disclosed a trade secret, even if in fact there be
none at all to speak of.4 Hence, in Cocoland, the parameters in the
determination of trade secrets were set to be such substantial factual
basis that can withstand judicial scrutiny.

3
328 Phil. 351 (1996).
4
Id.

REPLY TO RESPONDENT’S POSITION PAPER--5

 3.6 Similarly, respondent failed to establish the parameters in
the determining the product price as a trade secret and failed to
provide substantial factual basis that can withstand judicial scrutiny.

3.7 Giving attention now to respondent’s contention that the

complainant committed unauthorized sale of the company products
as one of the grounds of the termination of employment, the same
proves to be untenable.

3.8 During the administrative hearing, the respondent is the

one asking for proof/answers whether or not the respondent
company allows the employees to give away the products they
received as gifts. This goes against the logic of an administrative
hearing because the representative of the company should be the
one pointing out which specific rules or policies were transgressed,
otherwise, this action by the respondent company is clearly a fishing
expedition where it gathers information from the complainant which
will eventually be used against her (complainant);

3.9 Further, respondent admits5 of the absence of a company

policy providing for the terms, condition and or restrictions regarding
the products given to their employees as gifts.

3.10 Forcing the issue despite the lack of a company policy,

respondent forcibly applied an inapplicable law to justify the illegal
dismissal the complainant;

3.12 Despite the absence of a clear company policy as regards

the allowance or prohibition to sell the products given by the
company, -or whether or not it was malicious and intentional on the
part the complainant the selling of the products, respondent
disregarded the importance of a valid due process to arrive at an
honest and truthful conclusion6;

3.13 Clearly, respondent is dead-centered on terminating the

employment of the complainant rather than bringing out the truth of
the matter7.

IV
5
Transcript, p15, par 6 – p7, par 4.
6
Transcript, p19, par1-3
7
Transcript, p19, par 8 to p21, par 11

REPLY TO RESPONDENT’S POSITION PAPER--6

COMPLAINANT’S DISMISSAL
CONSTITUTES ILLEGAL
DISMISSAL.

4.1 In a string of cases,8 The Supreme court have repeatedly

said that the requirement of twin notices must be met.

4.2 Further, Implementing Rules and Regulations of the Labor

Code provide that any employer seeking to dismiss a worker shall
furnish the latter a written notice stating the particular acts or
omissions constituting the grounds for dismissal.9 The purpose of
this notice is to sufficiently apprise the employee of the acts
complained of and enable him/her to prepare his/her
defense.

4.3 Art. 282(c) of the Labor Code provides that an employer

may terminate an employment for fraud or willful breach by the
employee of the trust reposed in him/her by his/her employer or duly
authorized representative. In order to constitute as just cause for
dismissal, loss of confidence should relate to acts inimical to the
interests of the employer.10 Also, the act complained of should have
arisen from the performance of the employee's duties. 11 For loss of
trust and confidence to be a valid ground for an employee's
dismissal, it must be substantial and not arbitrary, and must
be founded on clearly established facts sufficient to warrant
the employee's separation from work;12

4.4 In the present case, respondent failed to abide by these

lawful guidelines when respondents failed to specify how their
alleged policy was violated.;

4.5 Giving the complainant a meager three (3) days to file her
written explanation, respondent also failed to give the complainant
"Reasonable opportunity" in order to enable her to intelligently
prepare her explanation and defenses;

4.6 Railroading the grim fate of the complainant, respondent

issued its second notice, the Investigation Findings and Disciplinary
Action, terminating the employment of the complainant despite the
absence of an administrative hearing or conference;
8
Voyeur Visage Studio, Inc. v. CA, G.R. No. 144939, March 18, 2005, 453 SCRA 731; citing Colegio de
San Juan de Letran-Calamba v. Villas, G.R. No. 137795, March 26, 2003, 399 SCRA 550, 555; Kingsize
Manufacturing Corporation v. NLRC, G.R. Nos. 110452-54, November 24, 1994, 238 SCRA 349.
9
Book V, Rule XIV, Sec. 2.
10
Tabacalera Insurance Co. v. NLRC, No. L-72555, July 31, 1987, 152 SCRA 667, 674-675.
11
Equitable Banking Corporation v. NLRC, G.R. No. 102467, June 13, 1997, 273 SCRA 352, 378.
12
Labor v. NLRC, G.R. No. 110388, September 14, 1995, 248 SCRA 183, 200.

REPLY TO RESPONDENT’S POSITION PAPER--7

 4.7 In an afterthought, respondent scheduled an Administrative
Hearing later on giving the complainant a false sense of hope and to
create a semblance of a valid due process. Clearly, it is an attempt of
the respondent to circumvent the law on lawful termination by
making it appear that due process was indeed observed.

COMPLAINANT IS ENTITLED
TO BACKWAGES AND OTHER
BENEFITS
5.1 Article 279 of the Labor Code states, in part, provides that
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.13

5.2 An employee whose dismissal is found to be illegal is

considered not to have left his office so that he is entitled to
all the rights and privileges that accrue to him by virtue of
the office that he held.14 Further, the Honorable Supreme Court
has declared that the base figure to be used in the
computation of backwages due to the employee should
include not just the basic salary, but also the regular
allowances that he had been receiving, such as the
emergency living allowances and the 13th month pay
mandated under the law.15

5.3 Having been illegally dismissed from service, the

complainant is entitled to reinstatement (whether actual or payroll)
with payment of full backwages including but not limited to the last
salary withheld from her and the 13th month pay due to the
complainant.

5.4 If reinstatement is no longer viable, separation pay

is granted.16 Separation pay is intended to provide the employee

13
St. Joseph Academy of Valenzuela Faculty Association (SJA VFA) v. St. Joseph Academy of
Valenzuela (G.R. No. 182957, June 13, 2013) 
14
Buhain v. The Hon. CA, (G.R. No. 143709, July 2, 2002)
15
Paramount Vinyl Products Corporation v. NLRC (G.R. No. 81200 October 17, 1990)
16
General Milling Corporation v. Casio, G.R. No. 149552, March 10, 2010, 615 SCRA 13, 37.

REPLY TO RESPONDENT’S POSITION PAPER--8

money during the period in which she will be looking for another
employment.17

VI

COMPLAINANT IS ENTITLED
TO DAMAGES AND
ATTORNEY’S FEES.

6.1 Damages as defined in the Civil Code, is recoverable in

labor cases. Thus, to be entitled to moral damages, the act of
dismissal must be attended by bad faith or fraud, or was
oppressive to labor, or done in a manner contrary to morals,
good customs, or public policy and, of course, that social
humiliation, wounded feelings, grave anxiety, etc., resulted
therefrom.18

6.2 Additionally, exemplary damages are designed by our civil

law to permit the courts to reshape behaviour that is socially
deleterious in its consequence by creating negative incentives or
deterrents against such behaviour. The court may award exemplary
damages "if the dismissal was effected in a wanton,
oppressive or malevolent manner."19 In this case, respondent
company’s president did not afford the complainant a chance to
intelligently defend herself despite being personally meeting the
complainant. Respondent further attempted to circumvent the law by
scheduling an administrative hearing to make it appear that due
process was observed after it had effectively issued its letter of
termination. President of the respondent company was oppressive
when he confirmed to the complainant the termination of her
employment even before a valid administrative hearing was
conducted. The president even attended the pseudo-administrative
hearing adding insult to the injuries already sustained by the
complainant. Said acts are tainted with bad faith or fraud not to
mention that it is likewise wanton, oppressive and malevolent by
nature. Thus, complainant is entitled to recover moral and exemplary
damages.

6.3 Lastly, Article 2208 of the Civil Code provides for the
instances attorney’s fees may be recovered, to wit:

“(1) When exemplary damages are awarded;

17
Aurora Land Projects Corporation v. National Labor Relations Commission, 334 Phil. 44, 58 (1997).
18
Montinola v. PAL G.R. No. 198656 September 8, 2014
19
Montinola v. PAL G.R. No. 198656 September 8, 2014

REPLY TO RESPONDENT’S POSITION PAPER--9

 (2) When the defendant’s act or omission has compelled
the plaintiff to litigate with third persons or to incur
expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the

plaintiff;

(4) In case of a clearly unfounded civil action or

proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad

faith in refusing to satisfy the plaintiff’s plainly valid, just
and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household

helpers, laborers and skilled workers;

(8) In actions for indemnity under workmen’s

compensation and employer’s liability laws;

(9) In a separate civil action to recover civil liability

arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and
equitable that attorney’s fees and expenses of litigation
should be recovered.”

6.4 Henceforth, considering the wanton, oppressive and

malevolent manner by which complainant’s services were terminated,
for which she suffered social humiliation, wounded feelings, mental
anguish and sleepless nights, complainant should also be awarded
moral and exemplary damages. Further, attorney’s fees is also
warranted for the illegal dismissal forced the complainant to litigate
and incur expenses to protect his interest.

VII

REPLY TO RESPONDENT’S POSITION PAPER--10

CONCLUSION

7.1 Complainant is NOT GUILTY of breach of contract and

unauthorized sale of company products.

7.2 Complainant’s dismissal based on breach of contract and

unauthorized sale of company products is ILLEGAL.

7.3 Complainant was ILLEGALLY DISMISSED.

7.4 Complainant do not deserve the supreme sanction

of DISMISSAL.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed

that judgment be issued declaring the Complainant was ILLEGALLY
DISMISSED by the respondents and she is entitled to
REINSTATEMENT.

FURTHER, it is respectfully prayed that respondents be ordered

to pay or issue to the complainant, as the case may be:

(a) BACKWAGES from the date of her illegal dismissal on

October 15, 2019 up to the time complainant is
REINSTATED to her former position without loss of
seniority rights and other benefits. Should reinstatement
prove to be futile, SEPARATION PAY is prayed to be
awarded.

(b) MORAL DAMAGES

(c) EXEMPLARY DAMAGES

(d) Complainant’s RECEIVABLES representing salaries and

other benefits due her.

(e) Attorney’s fees of Ten Percent of total amount awarded to

the Complainant.

(f) Complainant’s CERTIFICATE OF EMPLOYMENT (whether

reinstated or otherwise).
REPLY TO RESPONDENT’S POSITION PAPER--11
 FINALLY, the complainant respectfully prays for such and other
reliefs as may be deemed just and equitable in the premises

Quezon City, 12 February 2020.

_______________________
No. ___,_____________Street,
SSS Village, Concepcion Dos, Marikina

Copy Furnished:

_______________________, INC.
c/o Ms. __________________
Ms. _________________
__________, ________________,
___________________________,
Bonifacio Global City (BGC), Taguig

REPLY TO RESPONDENT’S POSITION PAPER--12