Position Paper Labor Case 5o2cp

REPUBLIC OF THE PHILIPPINES NATIONAL LABOR RELATIONS COMMISSION SUB-REGIONAL ARBITRATION BRANCH 6, ILOILO CITY ROWENA MAY MORANTE, Complainant, -versus-

NLRC SRAB CASE NO.VI-07-50193-15 For: Illegal Dismissal / Money Claims and Damages

TELE-SKILLS CALL CENTER, Respondent. x-----------------------------------------------------------------------------------------x

POSITION PAPER Respondent, by counsel respectfully states: PREFATORY Just like any other contract, the employment agreement is the formal expression of the parties’ rights, duties and obligations. It is the best evidence of the intention of the parties. For as long it is mutually and voluntarily entered by parties, it is considered as law that is legally binding between them. A contract being mutual in nature cannot be severed at any time. The violations or severance of any parties in a contract constitute a breach of contract. That no court, agency or any forum can interfere, enlarge nor alter any provisions thereof unless the same is contrary to law or unconscionable in nature. While the Constitution and the labor laws ittedly protect the interests of the labor, nonetheless it does not preclude, neither deny nor destroy any rights available to the employer, especially if it is done for the furtherance of its business interest or the same being done as a result of its sound business judgment. Under the doctrine of management prerogative vis-a-vis to the well accepted principle of business judgment rule, every employer has the inherent right to regulate, according to its own discretion and judgment and the only limitations to the exercise of this prerogative are those imposed by the Constitution and labor laws. In the instant case, the actions of the employer 1 lies within the bounds of the contract between the parties and a valid exercise of management prerogative. Accordingly, since complainant herein is only a mere trainee, who violated its standing 1

Referring to herein respondent

training agreement, this present Complaint should fall as there is no employer-employee relationship so to speak at the first place. What exist herein is just a mere trainee-trainer relationship.

THE PARTIES 1. Respondent, Tele-Skills Call Center is a sole proprietorship engages in business process outsourcing (BPO), owned by spouses, Mary Ann Alegada and Alberto Alegada Jr, being impleaded herein in their capacity as an Officer thereof, with an office address at 3rd Floor Arguelles Building, Arguelles Street, Jaro, Iloilo City. 2. Complainant, Rowena May Morante is a former trainee of respondent who failed to finish the training agreement. STATEMENT OF THE CASE

3. This is the case of Illegal Dismissal and money claims for the actual training days undergone by the complainant; 4. The case was set for final mediation last September 10, 2015 but the parties failed to come up with reasonable Compromised Agreement, hence, they were directed to file their respective Position Paper. STATEMENT OF THE RELEVANT ACTS

5.

The complainant Rowena May Morante (Morante for brevity) started its stints as trainee of the respondent on May 8, 2015. The complainant and the respondent entered into a contract of Employee Agreement for Training Period which covers twenty (20) working days, commencing on May 8, 2015 and terminating on June 8, 2015; A copy of Employee Agreement for Training Period is hereto attached as Annex “1” and made an integral part hereof.

6.

The of “Employee Agreement for Training” under Termination of Training/Employment and Miscellaneous: “5.1. Notwithstanding anything contain herein to the contrary, this Agreement shall be immediately terminable by the company for cause” ...... 5.3. Non-completion of the Training Period and

6. Miscellaneous “..........FAIL: Failed Trainee will be automatically terminated from the company. Training days will not be paid”

7.

On 2 June 2015, which is the complainant last training day, untoward

incident happened, she vomited in the work place and complained to the Manager Ronah Joy C. Alvarez, that she is not feeling well. Upon knowing the incident, the respondent approached the complainant and advised her to take a rest. The respondent told the complainant that she will look for a daytime training schedule that will be more favorable to the complainant and to avoid any untowards incident in relation to the complainant’s health conditions.

8. Considering the fact that the respondent finds it hard time to look for an appropriate training schedule that would fit the health condition of complainant, it took several days for it to call, informing the same about her new training schedule. Unfortunately, when they already find an excellent time that tailored fit for complainants, she never answered any of its call, neither received a return call from her. Hence, respondent assumed that she is no longer interested in the resumption of her training. 9. Three (3) months after the last training day of the complainant, the respondent received a call from the NLRC Sub-Regional Arbitration that there was a complaint against them and the schedule for the first (1 st) mandatory mediation was set last August 26, 2015. The respondent where shocked when the complainant ed the other former employees of the respondent’s company in filing a labor case against the company. 10. The complainant allegedly was terminated summarily from its training without any valid grounds and was not paid .The complaint premised on the presupposition that the complainant is entitled to be paid for the training period despite her failure to finish the contract period for training. ISSUES I. WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO THE FOUTEEN (14) DAYS TRAINING PERIOD DESPITE HER FAILURE TO FINISH THE SAME UNDER THE AGREEMENT AND THE PROVISIONS OF THE CONTRACT STATES THAT THE TRAINING DAYS WILL NOT BE PAID IF THE TRAINEE FAILS TO FINISH THE TRAINING PERIOD; and II. WHETHER OR NOT THE SUMMARY TERMINATION IS A VALID EXERCISE OF MANAGEMENT PREROGATIVE AS PROVIDED BY LAW AND EXISTING JURISPRUDENCE.

ARGUMENTS/DISCUSSION Contract constitutes the law between the parties.

11. Settled is the rule that contract is considered valid until and unless annulled by the competent Court for being contrary to law, moral and public policy, it is considered as paramount law between parties that will regulate their dealings. Since the non-payment of the training fees is not unlawful or the same does run counters with existing public policy, complainant herein should and must supposedly bound by it. In fact, the Labor Code sanctioned such provision with regards to any training Contract entered by any prospect employee to her/his prospect employer. As can be gleaned in the “Employee Agreement for Training” which complainant entered with respondent, specifically under the provision of “Termination of Training/Employment”2 and “Miscellaneous”3, it categorically provides: “5.1. Notwithstanding anything contain herein to the contrary, this Agreement shall be immediately terminable by the company for cause” ...... 5.3. Non-completion of the Training Period” and

11. Miscellaneous “..........FAIL: Failed Trainee will be automatically terminated from the company. Training days will not be paid” The non-payment of the actual training days is within the provisions of the contract. The of an agreement is very clear, the non-completion of the training is considered as FAILED, hence, the actual training days will not be paid.

12. When the complainant signed the training contract it was explained and clear to her that she is not entitled to any payment if she failed to finish the twenty (20) training days. If the complainant was not amenable to the stipulations in the contract, she 4 can simply walk away and did not sign the said contract instead. 13. In Heirs of San Andres v. Rodriguez [5], the Supreme Court ruled that: “Time and again, we have stressed the rule that a contract is the law between the parties, and courts have no choice but to enforce such contract so long as it is not contrary to law, morals, good customs or public policy. Otherwise, courts would be interfering with the freedom of contract of the parties. Simply put, courts cannot stipulate for the parties or amend the latter's agreement, for to do so would be to alter the real intention of the contracting parties when the contrary function of courts is to give force and effect to the intention of the parties.”

The

non-performance

2

of

an

Paragraph 5 of the Employee Agreement for Training Period. Paragraph 7 of the Employee Agreement for Training Period. 4 Refer to the Complainant 3

5

388 Phil. 571, 586 (2000).

obligation in an agreement constitute a breach of contract and the person liable for it cannot unjustly enrich herself. 14. Article 1159 of the Civil Code of the Philippines provides that: “Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith.” 15. Contract of employment like any other contracts should be complied with in good faith. In the absence of any stipulation, complainant cannot be deemed to have the contractual right to pre-terminate the contract unilaterally. The act of the complainant herself constitute an implied termination of contract. Hence, she cannot claim whatever from the respondent because in the first place she is in bad faith and come to this Honorable NLRC not in clean hands. 16. In Olacao vs NLRC6, the principle against unjust enrichment must be held applicable to labor cases as well. The court would like to avoid the rampant whimsical and baseless filing of cases against employers inorder to collect a sum of money from them. 17. The complainant knew that when the employer approached her to change training schedule it is not a termination nor suspension of the training but an effort to give her a favorable schedule. The filing of the complaint in the first place shows the intention of the complainant that she is no longer interested to return to work . By her own acts and unilateral severance of the contract, that causes her not to avail the training fees agreed upon;

18. The provisions for the non-payment of unfinished training contract is a valid protection parameter used by the employers to avoid “call-center hopper” scheme.7 The order for any payment would allow the complainant to unjustly enrich herself at the expense of respondent. 19. The complainant herself committed a breach of contract by not reporting to the respondent after the incident and by filing a malicious complaint before the Honorable NLRC. When the incident was happened there was no verbal dismissal nor suspension. The complainant upon fixing her signature to the training contract was aware that she is not entitled to training fees once she failed to finish the training period or failure to the performance evaluation. 20. In Multinational Village Homeowners Association vs ARA 6

G.R. No.81390, 29 August 1989, 177 SCRA 38,45 Call center hopper where the agent or trainee work from one call center to another for short periods of time. They grab the opportunity of being trained with corresponding training fess but they do not have the intention to stay in the company. 7

Security & Surveillance Agency8, the rule is that the one who alleges a fact has the burden of proving it. Thus, the complainant was burdened to prove their allegations that the respondents terminate her from the training.

21. There was no evidence exists to prove that the contract was allegedly terminated or that other actions were taken against her by the employer.

22. It is an often rule that in labor cases, as in other istrative and quasijudicial proceedings, “the quantum of proof necessary is substantial evidence, or such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.”9 The burden of proof rests upon the party who asserts the affirmative of an issue.10 23. It must be stressed that the evidence to prove this fact must be clear, positive and convincing. The rule that the employer bears the burden of proof in termination of contract finds no application here because the respondents deny having terminated nor suspended the complainant. Management prerogative is an inherent right of the employer. 24. In Rural Bank of Catilan, Inc. Vs Julve11, the Court summarize the general jurisprudential guidelines affecting the right of the employer to regulate employment:

“ Under the doctrine of management prerogative, every employer has the inherent right to regulate, according to his own discretion and judgment, all aspects of employment including hiring. The only limitations to the exercise of this prerogative are those imposed by labor laws and the principles of equity and substantial justice” 25. The respondents were comionate by offering to the complainant that they will look for a morning shift so as to avoid another untoward incident that may worsen the health conditions of the complainant. 26. The change of schedule suggested by the respondent, although not a part of the obligations of the respondents and not of their responsibility, they were accommodating to offer another schedule so that the complainant will be able to finish the training and can be a future employee of the company.

8

G.R. No. 154852, October 21, 2004

9

Antiquina v. Magsaysay Maritime Corporation, G.R. No. 168922, April 13, 2011, 648 SCRA 659, 675, citing National Union of Workers in Hotels, Restaurants and Allied Industries-Manila Pavillion Hotel Chapter v. NLRC, G.R. No. 179402, September 30, 2008, 567 SCRA 291, 305. 10 11

Ibid. 545 Phil 619 (2007)

27.

In Blue Dairy Corporation v NLRC12, the Courts provides that: “As a privilege inherent in the employer’s right to control and manage its enterprise effectively, its freedom to conduct its business operations to achieve its purpose cannot be denied ”

28. The complainant instead of expressing her gratitude to the employer for providing her with comionate chances to continue the training with different schedule and instead of initiating a humble dialogue with the respondents before taking any external legal actions, she directly and maliciously commenced the instant arbitrary and baseless labor suit against the respondents, thus, exposing the respondents to mental anguish and emotional distress. 29. There is no legal and factual basis for the complainant to hold the respondents liable for the unpaid training days alleged in the causes of action part of her pro forma complaint; 30. To stress: complainant was not terminated but was in fact given the opportunity to finish the training period by rescheduling the same in consideration of her health conditions the respondents in effect initiated the rescheduling based on its sounds discretion. The training period as part of the hiring process is always subject to the management prerogatives.

Hence, the complaint for monetary claims shall be dismissed for lack of factual and legal basis. Service by Post Copies of this pleading cannot be personally served upon other parties because of distance and time constraints, which therefore render personal service and filing impractical and inefficient.

RELIEF WHEREFORE, it is most respectfully prayed that a Decision be rendered by this Honorable Office (i.) declaring that; a.) complainant committed breach of contract; b.) complainant is not entitled to any monetary claims; and (ii.) Ordering complainant to pay damages by way 12

373 Phil. 179, 186 (1999)

of attorney’s fee. Other remedies just and equitable under the premises is likewise prayed. Iloilo City, 12 October 2015

MARIANIE C. TANATE PTR No. 3738164/ 1-14-2015/Iloilo City IBP Lifetime Mem. No. 0986661/6-24-2015/Iloilo Chapter Attorney’s Roll No. 63444 (itted to BAR in 2014; exempted until next compliance period)

MELCHOR C. VILLALOBOS PTR No. 0349017/01-05-15/Pasig City IBP No. LRN-0981340/01-05-2015/ Iloilo Chapter Attorney’s Roll No. 61783 (itted to BAR in 2013; exempted until next compliance period)

VERIFICATION

AND

CERTIFICATION

FOR

NON-FORUM

SHOPPING

I, Marianie C. Tanate, of legal age, single, Filipino, and with postal address at 144 Cabarles St., Leon, Iloilo, state: That I am the attorney-in-fact and the counsel of the above named respondents in the above captioned pending labor case; That I caused the preparation thereof; That I have read its contents; and That the same are true and correct of my own direct personal knowledge. Further, pursuant to Rule 7 of the 1997 Rules of Civil Procedure and existing Supreme Court circulars, I hereby certify that I have not heretofore commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of our knowledge, no such

action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; and that if we should hereafter learn that other similar or related actions or proceedings has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, we undertake to report that fact within five (5) days therefrom to this court.

Marianie C. Tanate BIR TIN I.D. No. 298-101-191 ACKNOWLEDGMENT Republic of the Philippines) City of Iloilo ) S.S. X-----------------------------X BEFORE ME this______________________,in Iloilo City personally appeared the abovenamed attorney/s in fact of the respondents in the abovecaptioned pending labor case, with their respective Official IDs as indicated above, who are known to me and to me known to be the same persons who executed the foregoing verification and anti forum shopping certification as part of the foregoing position paper in the abovecaptioned pending labor case, and who attested to me that the same is their free act and deed.