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NLRC Position Paper, should I push thru?

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1 NLRC Position Paper, should I push thru? on Tue Apr 19, 2011 1:19 pm

dlorenzo


Arresto Menor
hi attyLLL, i need your take on this, here is the series of events for you to have a clear look at the situation.

MARCH 2010
- I was hired at a BPO company as part of their finance team and was asked to train in Singapore for a month
- Before leaving for Singapore, I signed a TRAINING AGREEMENT. Excerpt from the agreement are as follows:

COMPULSORY SERVICE PERIOD:
In consideration of the training granted, the Employee shall serve the company or the Group of Companies at any particular time as determines by the Company whether on a secondment basis or otherwise for a period of one year (hereinafter referred to as “the Compulsory Service period”).

EVENTS OF DEFAULT: In the event that during the Training Period:
1. The employee’s employment under the contract of employment is terminated by the company for misconduct or any other reasons whatsoever during the training period or the compulsory service period; or
2.The employee resigns or abandons the service of the company during the compulsory service period.
THEN IN SUCH CASE, THE EMPLOYEE SHALL BE LIABLE TO PAY THE COMPANY UPON DEMAND THE LIQUIDATED DAMAGES EQUIVALENT TO THE SUM EQUIVALENT TO THE COST OF TRAINING.”

– The second batch of trainees, did signed two agreement, the TRAINING AGREEMENT and the other BOND CONTRACT which states how much they would pay.
– I didn’t sign any BOND CONTRACT, just the training agreement.

JUNE 2010
– The company gives me a NOTICE TO EXPLAIN on the grounds of falsification of documents such as Transcript of Records and others which I wasn’t able to answer and wasn’t able to go back to office.
– During that time, they already hold my salary. I wasn’t eager to go back to work because of this and decided to just leave the company right away.
– Days after, the company sent a letter regarding termination of my contract with them. So I decided to let go of the company and didn’t go back for any clearance or whatsoever.

FEBRUARY 2011
– I got a text message from the recruitment manager if I can email him stating that I have signed the BOND CONTRACT which I didn’t. I just ignore him and thought that if I do that, they would take it against me.

MARCH 2011
– I received a FINAL DEMAND LETTER (I didn’t receive anything before this letter) from the company asking me to pay P180,000 for the contract bond. Attached with the letter is a computation of my last pay.
– I went to their office to discuss with the HR and inform them that I didn’t sign any bond contract when I left the company. I asked her if I can claim my 13th month pay, tax refund and other unpaid wages. She told me that she would have to discuss it first with their lawyer and will get back to me.
– I tried following-up the situation twice but didn’t get any reply until after two weeks I think.
– I filed a complaint in NLRC for money claims.

APRIL 2011
– We just had our first meeting today at NLRC. The lawyer claims that I am not entitled for those money claims since I still owe the company for the bond.
– The company have filed a civil case against me as per the lawyer but haven’t receive any summon yet.
– The second meeting is cancelled and we are going to push thru with a POSITION PAPER.

QUESTIONS:
1.Do you think I should push thru with the position paper?
2.Will it be okay if I will drop the case and in turn they would also drop the case against me as the settlement?
3.What are my chances in winning the case against the company?
4.What could be the verdict if I lose the civil case they filed against me? I believe the civil case maybe about the bond and at the same time, falsification of documents.

attyLLL, I would really appreciate your honest opinion on this. I don’t know what would be my next step. Filing of position paper is in May 10 already.

Thank you very much.

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attyLLL


moderator
your claim is just for last pay and money claim or for illegal dismissal?

so is the basis for your termination true?


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dlorenzo


Arresto Menor
my claim is just for my last pay, tax refund and 13th month pay.

yes, the basis for my termination is true that's why i just accept their decision.

their lawyer is saying, why i didn't came back for clearance to get my last pay. honestly, i don't have any plans of claiming it but since they're demanding me to pay for the bond, i decided to file a complaint against them based on those reasons.

according to them, they won't release any claims because i still owe the company for the bond.

attyLLL, based on the excerpts from the training agreement, am i really liable for the bond though my colleagues actually signed a separate bond contract aside from the agreement?

should i push thru or settle with them?

thank you po.

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attyLLL


moderator
i read through your past posts, and you said what you signed was confidentiality agreement. in that case, i don't believe you should be made liable. besides you were terminated. the basis for employment bonds is unjust enrichment and have been allowed only in cases where the employee resigned.

nevertheless, a bad settlement is often better than having to face a case. if they're willing to settle at quits, and you can swallow it, then it's ok.


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dlorenzo


Arresto Menor
“COMPULSORY SERVICE PERIOD:
In consideration of the training granted, the Employee shall serve the company or the Group of Companies at any particular time as determines by the Company whether on a secondment basis or otherwise for a period of one year (hereinafter referred to as “the Compulsory Service period”).

“EVENTS OF DEFAULT: In the event that during the Training Period:
1. The employee’s employment under the contract of employment is terminated by the company for misconduct or any other reasons whatsoever during the training period or the compulsory service period; or
2.The employee resigns or abandons the service of the company during the compulsory service period.
THEN IN SUCH CASE, THE EMPLOYEE SHALL BE LIABLE TO PAY THE COMPANY UPON DEMAND THE LIQUIDATED DAMAGES EQUIVALENT TO THE SUM EQUIVALENT TO THE COST OF TRAINING.”

above is the excerpt from the TRAINING AGREEMENT that i signed. based on this, should i be made liable and since according to them, i was the one who terminated the contract since they found out that i falsified some of my documents?

i am not really okay with the settlement and i'm not really sure if they would drop the civil case against me at the same time. but if you think i have chances of winning against my claim, i can continue the case and face their civil case i guess.

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6 Re: NLRC Position Paper, should I push thru? on Wed Apr 20, 2011 11:11 pm

attyLLL


moderator
i don't recommend you drop your case even if you think you will lose.


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7 Re: NLRC Position Paper, should I push thru? on Mon Apr 25, 2011 11:24 am

dlorenzo


Arresto Menor
if i will continue the case, what do you think will be the outcome?

also, they filed a civil case against me regarding the bond and falsification of documents i guess.

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attyLLL


moderator
outcome depends on what evidence is provided. i'm afraid there is no guiding jurisprudence yet regarding bonds.


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dlorenzo


Arresto Menor
hi attyLLL, just want to ask what is the penalty if i won't be able to submit my position paper on the schedule date?

i went to the arbiter's office to have it reschedule but according to his assistant, they don't allow reschedule, is it true? thanks.

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10 Re: NLRC Position Paper, should I push thru? on Wed May 04, 2011 2:19 pm

rescheduling is allowed especially if its the first time you asked for an extension but since you are the complainant, it would be better that you comply with the submission of position paper.

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11 Re: NLRC Position Paper, should I push thru? on Thu May 05, 2011 10:33 am

dlorenzo


Arresto Menor
lawddesign wrote:rescheduling is allowed especially if its the first time you asked for an extension but since you are the complainant, it would be better that you comply with the submission of position paper.

then how come the assistant did not allow me to have it rescheduled even though i informed him that i would just notify the other party?

i don't have enough time to work on the position paper. and i don't think i can submit it on time next week. what would be the penalty for not submitting it?

will it be possible that i work on my own position paper and have it notarized instead of waiting for PAO's office or private lawyers? i don't have a budget for this actually. thanks

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12 Re: NLRC Position Paper, should I push thru? on Thu May 05, 2011 10:58 am

Rescheduling of submission of Position Paper should be allowed; however, this is subject to the discretion of the labor arbiter especially if the case is pending with them for quite sometime.

I wonder why you have to notify the other party considering that they are present during the mediation proceedings. It will be to your advantage if they will not be able to file their Position Paper.

Generally, the complainant is allowed to make his Position Paper even without the assistance of a lawyer; but it would be better to consult one so you would be guided with law and jurisprudence applicable to your case.

If no Position Paper is submitted, the case will be decided only based on the Complaint and Answer filed by the parties. But since you are the complainant, I highly suggest that you filed your Position Paper. Take note that the Complaint you filed is a only a pro forma form. Your arguments and defenses can only be deduced through a Position Paper.

You should have consulted the PAO earlier. There is a PAO office designated at the NLRC.

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13 Re: NLRC Position Paper, should I push thru? on Thu May 05, 2011 11:00 am

erratum it should read as "you file" instead of "you filed" under the 4th paragraph

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14 Re: NLRC Position Paper, should I push thru? on Thu May 05, 2011 11:33 am

dlorenzo


Arresto Menor
we were actually discussing on settlement but unfortunately it didn't turn out well so i only consulted PAO a few days ago and the lawyer is not that eager to help me since the filing will be next Tuesday.

i'm thinking of working on my own position paper and have it notarized then maybe with the submission of reply, i can consult a lawyer.

i might be working on my own. will probably post it over the weekend for your comments. thanks

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15 Re: NLRC Position Paper, should I push thru? on Thu May 05, 2011 11:46 am

In my labor practice, i would usually endeavor for a compromise agreement. but in the event that we cannot arrive at any, position paper is submitted.

i don't think the action of PAO is not proper since they are mandated as public servants. did you not offer as compromise that you will drop the labor case in exchange of dismissal of the civil case (assuming there is, since as you mentioned you have not received any summons)?

good luck on your drafting of position paper.

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16 Re: NLRC Position Paper, should I push thru? on Thu May 05, 2011 12:11 pm

dlorenzo


Arresto Menor
well, i actually offered that agreement but i didn't get any reply from them. they did file a civil case but haven't receive any summon yet.

thank you, i think i will work on it later and will probably send you the draft.

thanks again, have a great day.

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17 Re: NLRC Position Paper, should I push thru? on Fri May 06, 2011 9:25 am

attyLLL


moderator
i'm thinking of working on my own position paper and have it notarized then maybe with the submission of reply, i can consult a lawyer.


this is not a bad plan. the most important part of any position paper are the facts and the evidentiary documents. or say your lawyer told you to ask for an extension and you will be made to pay P500 to reset.


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