Arbiter tells resto to reinstate kitchen manager

THE National Labor Relations Commission (NLRC) has ordered a Greek restaurant at a mall in Cebu City to reinstate its kitchen manager, whose services were terminated on sexual harassment charges.

Labor Arbiter Vitto Kintanar found the dismissal of Jerry Mindajao illegal and directed the restaurant to pay its former worker P169, 230.76 in back wages, benefits and attorney’s fees.

The labor arbiter said the restaurant management did not give Mindajao due process when an on-the-job trainee accused the then kitchen manager of “rubbing” the small of her back.

The management cannot justify Mindajao’s dismissal on the ground of loss of confidence, Kinatanar said.

Mindajao, through his lawyer Alex Tolentino, filed a complaint for illegal dismissal and non-payment of his salary and benefits against the officials of the restaurant with NLRC.

Mindajao was hired as kitchen manager on Dec. 18, 2008. In October 2011, he received a notice from management, telling him to explain why he should not be disciplined for allegedly sexually harassing one of the restaurant’s trainees.

Mindajao denied sexually harassing the trainee. He said the trainee may be hitting back at him for giving her a failing grade in her evaluation report due to constant tardiness.

In terminating the services of Mindajao, the restaurant management cited the alleged “unethical and unprofessional conduct” of the kitchen manager.

In his decision, Kintanar said the penalty of termination from service does not fall under the company’s handbook and code of discipline.

He said the schedule of penalties only include verbal warning for first offense, written reprimand for second offense, suspension of not more than 14 days for fourth offense and termination on the fifth offense.

Although he was given a chance to explain his side in writing, the labor arbiter said Mindajao did not go through a formal hearing, where the alleged sexual harassment victim would have been cross-examined.

The labor arbiter also noticed that the written testimonies against Mindajao were not verified, so the statements of witnesses are hearsay.