Sutherland ordered to pay more than 500K for illegally dismissing an employee
This is an amended complaint for illegal dismissal filed by complainant, Luis Antonio Tejada, against the respondents, Sutherland Global Services Inc., Leo Hector Navarra (Director) and Rommel Dimanlig (Account Manager), praying for his reinstatement with full backwages, payment of his 13th month pay, three (3) months salary for the unexpired portion of his contract, tax refund, moral and exemplary damages of PhP 200,000.00 and Ten (10%) attorney’s fees.
During the mandatory conference held, parties could not enter into any settlement, hence, they were required and directed to file their respective position paper and other responsive pleadings together with the evidence to support their respective claims, demands and defenses after which this case shall be submitted for resolution based on all allegations and evidence of both contending parties.
SUMMARY OF THE FACTS
For the Complainant:
Complainant, Luis Antonio Tejada, avers that he was hired by the respondent, Sutherland Global Services Inc., as a “Call Center Consultant” on June 14, 2011. He states that prior to his employment with the respondent Sutherland Global Services Inc., he was a customer service representative (Spanish) at Alorica Inc. He alleges that Sutherland was then in urgent need of call center customer service representatives/consultants preferably one who is fluent in the Spanish dialect for some of its clients with Spanish speaking customers. He claims that he decided to suffer the inconvenience of having to relocate to Pampanga from his present employment in Metro Manila because of the promise of a more lucrative and stable job, as well as a “long and mutually rewarding career”. Thus, he claims that he transferred to Sutherland and take on a more promising job.
Complainant alleges more that his employment relationship with the respondents was governed by a “Letter of Intent” dated June 14, 2011 with the position “Consultant” subject to the completion of the requirements and his employment started on June 20, 2011. He further states that despite the use of the word “Consultant” to describe his position, he was placed on probation but was informed of the standards that he had to meet for purposes of regularization.
He states that respondents Sutherland gave him a compensation package in the amount of PhP 93,950.00 per month. Complainant likewise avers that like most call center consultants, he was expected
- Answer customer calls relative to client related concerns and queries.
- Document queries using the software provided by Sutherland.
- Update the default answers and/or answers whenever necessary.
- Troubleshoot hardware and software issues for MS Windows Phone 7.
- Provide fixes for other phone issues.
He also states that respondents hired two other consultants aside from him, namely, Juan Gabriel Macias Pamintuan and Kirk Benidict Mortola.
He alleges that the letter of intent which describe his engagement as coterminous with the program, does not state the duration and/or period of the program referred to. Thus, for all intent and purposes, and since no standards were set to obtain regular status, complainant was engaged as a regular employee from day one of his employment. He states that on September 29, 2011, respondent Dimanlig verbally informed him of the termination of his employment which was to take effect on October 3, 2011. October 1, 2011, a representative of the respondent Sutherland’s Human Resources Department asked the complainant to sign a letter dated September 30, 2011 bearing the subject “On Bench Notice”. The said notice directed the complainant to report on October 15, 2011.
On October 16, 2011, respondents terminated the complainant from service on grounds of “Low call volume and … client’s instruction to reduce Sutherland’s operating hours, thus, Sutherland decided to streamline its operations”, “Failure to pass the program competency assessment and training requirements” and that the position presently occupied by the complainant is now in excess of Sutherland’s requirement and therefore no longer necessary in operational structure of the PHL MS Zune Program.
Considering the illegal and unjustified acts committed by the respondents in dismissing him from his employment, complainant filed this instant complaint. Complainant argues that that he was illegally dismissed without just or authorized cause and without due process and by reason of respondent’s oppressive arbitrary and malicious acts, respondents should be held liable for damages and attorney’s fees.
Finally, complainant prays that he be reinstated to his former position or to a substantially similar or equivalent position without loss of seniority rights and other benefits. He also claims for his backwages from the time of his illegal dismissal up to the time of his actual reinstatement, as well as claiming for moral and exemplary damages and attorney’s fees equivalent to 10% of the total award.
For the Respondents:
The Respondents states that the complainant was hired as a “Consultant” on June 14, 2011 and joined Sutherland on June 20, 2011 as per the letter of intent dated June 14, 2011 duly received by the complainant. The content of the Letter of Intent contains his annual cash compensation and the benefits that he would receive under Sutherland. Moreover, it was told that his employment is merely co-terminus with the program, PHL MS Zune.
The Respondents stated that the Complainant is a former probationary employee of Sutherland, served as a consultant for one of their former accounts, namely PHL MS Zune who was validly dismissed in October 2011 due to redundancy. They aver that the complainant is not a typical recruit in the call center industry due to his age. In fact, he was already 55 years old when he entered Sutherland. Interestingly, the complainant has an admirable record of experience in the call center industry. This proves to be his advantage, especially the fact that he is eloquent in writing and speaking “Spanish”. All told, he was looked upon as a person who properly suited for his position as a Consultant in the account PHL MS Zune.
The Respondents went further and allege that in September 2011, due to ongoing management audit and capacity planning and in light of low call volume, Sutherland was advised by PHL MS Zune that it has decided to end its business with the former. In view of the above circumstances, On October 3, 2011, or four months from the date of the complainant’s hiring, Sutherland notified the complainant and sent to him a copy of an “On Bench Notice” dated September 30, 2011, advising the latter that due to the decision of PHL MS Zune to terminate its contract with Sutherland, the closure of the account where the complainant is assigned is inevitable. Unfortunately, the complainant was part of the personnel affected by this unfortunate turn of events.
The respondents state that with the intent to retain the complainant as an employee of the respondents and to soften the impact of such unfortunate closure of the PHL MS Zune account, Sutherland offered to find another suitable account in other programs that will fit complainant’s training and competencies. In fact, the complainant was invited for an interview and competency assessment. However, this proved futile as the complainant never attended the interview and never took the competency assessment in order to qualify him to an account in another program. They aver that on October 16, 2011, Sutherland sent the complainant a notice of termination due to ramp down, advising him that his position as consultant is now in excess of the manpower needed by Sutherland, thus, his employment is terminated effective November 16, 2011. The complainant was also advised that his separation pay, which is equivalent to one month salary for every year of service, shall be paid to him once he has accomplished the necessary clearance form. The respondent also alleges that they notified DOLE of the impending separation of the complainant due to redundancy.
- Whether the complainant was illegally dismissed to be reinstated to his former position as “Consultant” with full backwages.
- Whether the complainant is entitled to his claim for moral and exemplary damages and attorney’s fees.
After careful deliberation of the facts, allegations and evidences adduced by the contending parties, we concluded and ruled that complainant, Luis Antonio Tejada was constructively dismissed from his employment to be entitled to his claims on his amended complaint of his salary for 3 months unexpired portion of his employment contract, moral and exemplary damages, as well as attorney’s fees. His 13th month pay is included on the monthly compensation detailed which is the legal basis for awarding his salary for three months unexpired portion of his employment contract.
The law on dismissal cases places the burden of proof on the employer to show that the employee was dismissed for a just and authorized cause and afforded due process. In the case at bar, while it might be true that the client, PHL MS Zune, indeed decided to end its business with the respondents, we found the manner of terminating the employment of the complainant not in accordance with the due process proceedings enshrined by the Constitution and existing jurisprudence. Granting for the sake of argument that indeed the position of the complainant as “Consultant” is “Redundant”, the respondents fell short of the 30-day notice requirement when they only served their notice to DOLE on October 21, 2011 for his termination which shall take effect on November 16, 2011 as clearly provided under Article 283 of the Labor Code, as amended.
We could not agree on the demand of the complainant, that he shall be reinstated to his former position as “consultant”, giving this time due acknowledgement to the defense raised by the respondent that PHL MS Zune, their client where the complainant was assigned, ended its business with the respondents. It is therefore more logical and appropriate to award the complainant his salary for the 3 months unexpired portion of his employment contract. The complainant should then be paid of his salary for the three months unexpired portion of his contract in lieu of reinstatement.
PhP 93,950.00 x 3 months = PhP281,850.00 for 3 months.
We examined the allegations of the complainant on his pleadings and we acknowledge the predicament of the Complainant when he accepted the position as consultant for the respondent’s working at Angeles City, Pampanga when his residence is at Metro Manila. The manner of the service of the first notice, which is considered as “Bench Notice”, placing the complainant under bench status for 15 days and the subsequent notice of termination is considered unjust and appropriate wherein the complainant deserves to receive moral and exemplary damages in the amount of PhP 200,000 as clearly demanded by him. Thus office therefore award the complainant moral and exemplary damages in the amount of PhP 200,000.00
The claim of the Complainant for 10% attorney’s fees is likewise granted as he was compelled to secure the services of counsel to protect his rights and privileges under the law. The 10% attorney’s fees should be computed as;
PhP 281,850.00 x .1 =PhP 28,185.00 attorney’s fees
City of San Fernando, Pampanga, September 3, 2013.
This may or may not be controlling at the time of this writing.
Source: http://www.nlrc.dole.gov.ph/content/decision/RAB III-11-18315-11.PDF
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