Friday, November 25, 2011

Ambee Food Service (Jollibee Franchisee) vs. CA & Myrthle Marzan

Who would have thought that the issue, "which is better, Chickenjoy + Rice or Chickenjoy + Roll?" would be the cause of a long labor dispute.

with rice or with roll?

Respondent Myrthle B. Marzan (Marzan) filed before the NLRC a complaint for illegal suspension and illegal dismissal with prayer for damages against petitioners Ambee Food Services, Inc. (Ambee) and its officers.

The following are excerpts from respondent's affidavit attached to her position paper:

“4. On October 12, 1999, at about 8:00 p.m. to 8:30 p.m.[,] counter crew members obtained orders from customers for rice and chicken joy on a waiting condition, that is, that they had to wait for about ten minutes. It was because the counter crew members asked those in the kitchen and production [sections] the availability of rice and chicken joy, and they were assured that these food products would become available about ten minutes more. Unfortunately, ten minutes passed but the kitchen and production sections were able to prepare only the chicken joy, not the rice.

5. Consequently, the crew members, upon instruction, offered the customers bread/roll in lieu of rice. Many of them agreed, and some complained. Of those who complained, one opted for the refund.

6. Meanwhile, one customer uttered some unsavory words before accepting our offer for bread/roll in place of rice. Still another customer inquired from me in a loud voice about his order. His loud voice instantaneously instilled a feeling of fear in me, and in response, I told him in a fearful and somewhat louder voice to just wait if I could have rice served on him. Such customer turned out later to be Rodolfo “Rudy” Garon. A copy of my report about such incident is attached hereto as Annexes “A” and “A-1.”

7. The following day, Mackey Dimaculangan, the Area Manager, called me by phone, and told me that there was a customer complaining against me in the name of Melba Olivares, and Ms. Dimaculangan read to me the alleged letter-complaint of the alleged Melba Olivares. I replied that there was really a customer who complained, but not the way the letter-complaint [narrated], and the complainant was a man, not a”

An investigation was conducted and it was recommended thereafter that respondent be indefinitely suspended.

In defense, Ambee Foods maintained that in the course of her employment, Marzan was not in good terms with her co-employees specially her subordinates who have various complaints, comments and unsavory remarks about her attitude in dealing with them, like alleged shouting at crew members, cursing them without even any valid reason and in front of other people. An instance was likewise recalled where she threw ketchup at a crew member.

Ambee Foods also claimed that, “Complainant was not terminated. Then on several occasions attempts by phone calls to talk to her about the case were refused, thus, settlement could not be effected. On one occasion that our accountant was able to talk [to] her she emphatically said that “I’ll just see you in court[;] xxx”

The Labor Arbiter dismissed the complaint, finding that the preventive suspension imposed on Marzan was not tantamount to illegal dismissal, holding that:

“xxx Significantly, the deliberate disregard, disobedience, or utter defiance by complainant over the respondents’ call for her report to work cannot be countenanced. This is not to say that complainant has no remedy against the rules or orders of the respondents which complainant may regard as unjust or illegal because she can object thereto or negotiate thereon. But until and unless the rules, orders, directive or instructions of [the] respondents are declared to be illegal or improper by competent authority, herein complainant cannot just ignore or disobey such order.

In fact, respondents’ desire for complainant’s return to work is such a noble act because notwithstanding the seriousness of complainant’s offense aggravated by various complaints, comments, and unsavory remarks from her co-employees and subordinates about her attitude, she is still being accepted by the herein respondents with open hands.

Ironically, while it appears from the records that complainant has reported on March 5, 2000, and punched her time card at exactly 11:27 a.m., she [had] also punched out her time card at 1:01 p.m.; also, it appears from the records that she did not report on her usual working hours, not in proper uniform, and did not perform her assigned”

The Court of Appeals ruled that although Marzan’s actuation is improper it cannot be considered as grave enough to constitute serious misconduct to warrant the ultimate penalty of dismissal, and that her indefinite suspension pending investigation is tantamount to illegal dismissal.


Was Marzan illegally dismissed? Consequently, whether the decision of the labor arbiter in this case, as affirmed by the NLRC, is entitled to respect if not finality and is considered binding on the appellate court.


Rulings of the labor arbiter and NLRC are strictly in accordance with the evidence presented and the applicable law, this Court should therefore sustain the same. Marzan was not terminated from employment but was merely suspended pending her administrative investigation as, in fact, there is no written or verbal communication to prove the alleged dismissal and that, up to now, petitioner Ambee is still awaiting Marzan’s decision to report back to work under the same terms and conditions. However, the penalty of backwages should not be given since the suspension was valid and it was Marzan who refused to return to work. Marzan was allowed to return to work under the same terms and conditions but without backwages.

"Kain Pinoy, Babe!"  
lots of jolly bees!


photos taken from:


No comments: