REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Commission Branch No. 09
Zamboanga City

ANGELO O. SUAREZ
Complainant,

- Versus - NCR Case No. RAB-09-01

00054-2018

JK PICHEL ENTERPRISES
Respondents
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REPLY TO POSITION PAPER

RESPONDENT, by and through the undersigned counsel and

unto this Honorable Office, respectfully submit this Position Paper
and state:

Complainant was hired on a

“pakyaw” or task basis and
is not dismissed, actual or
constructive

1. Contrary to the averment of the Complainant that Respondent

was illegally dismissed and was paid below the minimum wage,
pieces of evidence attached to the Position Paper submitted by the
Respondent would prove otherwise;

2. Though admittedly the Complainant was employed without

signing a written contract, it was explained and made clear to the
Complainant that he will be hired on a “pakyaw” or task basis as
someone who would be a helper to a truckman and/or driver prior
to August 2016. Thereafter, he was issued an identification card so
that each time he enters into premises, where deliveries would be
 made, that adhere to the strict policy of “NO ID NO ENTRY” he
would be permitted to enter such premises. The Complainant was
given over and above board as a helper;

3. Complainant was eventually absorbed to work as an assistant in

the repair shop and at the same time a utility worker in the facility
of the Respondent in September 2017.

4. Complainant’s allegation that he was illegally dismissed on

December 29, 2017 is a lie, fabricated to support his baseless
allegations. It is evident in the timeline, as any normal individual
who has a common sense would think that December 29, 2017 was
the last day of work for the year 2017 before the long break for the
New Year would start. As stated in the position paper, respondent
went on a long break and resumed its business on the 8th of
January 2018, the first Monday of the year.

5. It is the position of the Complainant that the reason for his actual
dismissal was due to the Respondent’s admonishments and that
he was told not to report to work until he was notified. Contrary
thereto, the Respondent was able to substantiate the fact that
Complainant was not dismissed actually or constructively as its
business resumed on January 8, 2018 and his filing of a case for
illegal dismissal was on January 5, 2018;

6. However, before the respondent even resumed its business, the

Complainant already went to NLRC RAB 9 on January 05, 2018
and filed a complaint for illegal dismissal;

7. It is evident that the filing of the case for illegal dismissal was
premature as no actual or constructive dismissal ever occurred;

8. To reiterate the risk of being redundant, in the case of Philippine

Rural Reconstruction Movement vs. Pulgar (GR No. 169227, 5 July
2010) is instructive, when the Supreme Court ruled, to wit:

“While we recognize the rule that in illegal dismissal

cases, the employer bears the burden of proving that
the termination was for a valid or authorized cause, in
the present case, however, the facts and the evidence
do not establish prima facie case that the employee was
 dismissed from employment. Before the employer
must bear the burden of proving that the dismissal
was legal, the employee must first establish by
substantial evidence the fact of his dismissal from
service. Logically, if there is no dismissal, then there
can be no question as to its legality or illegality. Bare
allegations of constructive dismissal, when
uncorroborated by the evidence on record, cannot be
given credence. “(Emphasis Supplied)

9. Similarly, in Machica v. Roosevelt Services Center, Inc. (523 Phil

199), it was held, thus:

“The rule is that one who alleges a fact has the burden
of proving it; thus, petitioners were burdened to prove
their allegation that respondents dismissed them from
their employment. 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 illegal dismissal cases finds no
application here because the respondents deny
having dismissed the petitioners.”(Emphasis Ours)

10.Likewise, it is noteworthy to mention that in the case of TRI-C

General Services v. Nolasco Matuto (GR No. 194686 23 September
2015)

“However, it is likewise incumbent upon the

employees that they should first establish by
competent evidence that fact of their dismissal from
employment. As an allegation is not evidence, it is
elementary that a party alleging a critical fact must
support his allegation with substantial evidence. It is
also stressed that the evidence to prove the fact of
dismissal must be clear, positive and convincing.”
(Emphasis Ours)

11.Also mentioned in the Complainant’s position paper, that during

the first confrontation dated January 24, 2018, the Complainant
was asked to return to work but he refused citing the reason that
he was already able to secure a new job. When the case was called
 again for a compulsory arbitration last February 13, 2018, the
complainant was asked again to return to work but clearly
manifested that he was no longer interested in returning to work
as he already found another job;

12. In the case of Romeo Villaruel v. Yeo Han Gan (G.R. No. 169191,
01 June 2011), it was held, thus:

“In fact, he rejected respondent’s offer for him to

return to work. This is tantamount to resignation.”
(Emphasis Ours)

13. Taking into account the afore-quoted jurisprudence, it is beyond

cavil that the Complainant in this case has the burden to prove by
clear, positive, and convincing evidence that he was actually
dismissed;

Complainant is not entitled to

the payment of salary differentials
13th month pay, service incentive leave,
holiday pay and other money claims

14. It is the position of the Complainant that he was paid the rate of
Php 220.00 per day on a weekly basis from Monday to Saturday
regardless of whether it is a holiday or not;

15. Contrary thereto, the Respondent was able to substantiate the fact
that Complainant was being paid justly and properly with a daily
wage of three hundred seventy three pesos (373.00 Php), more
than the required minimum daily wage rate of two hundred
ninety six pesos (296.00 Php) in the Region IX, Zamboanga
Peninsula under Wage Orer No. RIX-I9, as evidenced by a copy of
the Petty Cash Voucher for the period of September 2017 to
December 20171 duly signed by the Respondent;

16. In the same fashion, the Complainant avers that he is entitled to

13th month pay, service incentive leave, holiday pay, other money
claims;

1 Copy of the Petty Cash Voucher is Annex “1” to “10” of the Position Paper of Respondent
17. These assertions and allegations can be controverted by the pieces
of evidence attached to the Position Paper submitted by the
Respondent;

18. Contrary to the allegations of the non-payment of 13th month pay,

a pro-rated 13th month pay between September to December 2017
was given to Complainant but to this day such 13 th month pay
remained uncollected since the Christmas Party as the same has
not been collected and the Complainant has been avoiding the
Respondent;

19. Complainant’s assertions for his entitlement to overtime pay,

service incentive leave, and holiday pay is disputed by the fact
that Complainant was for most of the part worked as a part-time
helper of the truckman/driver and was paid on a “pakyaw” or task
basis;

20. It is established under Article 82 of the Labor Code of the

Philippines, which provides the exclusions from the coverage of
Title I, Book III (Working Conditions and Rest Periods) of the
Labor Code, that “workers who are paid by results” are one of
those kinds of employees who are not covered by such provisions;

21. Hence, it is without doubt that Complainant is not entitled to such

premium pays;

22. Granting arguendo, that the Complainant is not considered or fall

under the category of “workers who are paid by results”. He failed
to attach any document to support his claim that he rendered
overtime work that would entitle him for overtime pay, premium
pay, and holiday pay;

23. It is settled in the case of Loon, Et. Al. vs. Power Master Inc. Et. Al
(GR No. 189404, December 13, 2015), where the Supreme Court
has held, to wit:

“The burden of proving entitlement to overtime

pay and premium pay for holidays and rest days
rests on the employee because these are not
incurred in the normal course of business”.
(Emphasis Ours)
24. Taking into account the afore-quoted jurisprudence,
Complainant’s failure to substantiate his claim for entitlement of
overtime pay, premium pay for holidays and rest days, this must
not be entertained by this Honourable Arbiter;

25. Considering the foregoing discussion, it is clear that the

Honorable Arbiter has no recourse but to dismiss the money
claims of the Complainant;

Complainant is not entitled to

separation pay

26. Anent the claim of separation, the case of Hinatuan Mining

Corporation, et. Al., vs. NLRC, et. al., (GR No. 117394, Ferbuary
21, 1997), is applicable wherein the Supreme Court has held, to
wit:

“Separation pay may be awarded only in cases when

the termination of employment is due to (a)
installation of labor-saving devices, (b) redundancy,
(c) retrenchment, (d) closing or cessation of business
operations, (e) disease of an employee and his
continued employment is prejudicial to himself or his
co-employees, or (f) when an employee is illegally
dismissed but reinstatement is no longer feasible.”

27. As provided in the case of Century Canning Corp. vs. Ramil (GR
No. 171630, August 8, 2010)

“Under the doctrine of strained relations, the

payment of separation pay has been considered an
acceptable alternative to reinstatement when the
latter option is no longer desirable or viable. On the
one hand, such payment liberates the employee from
what could be a highly oppressive work
environment. On the other hand, the payment
releases the employer from the grossly unpalatable
obligation of maintaining in its employ a worker it
could no longer trust.”
28. In computing for separation pay, the general rule is, as laid down
in the case of St. Luke’s MedicalCenter Inc., vs. Notario (GR No.
152166, October 20, 2010). “In awarding separation pay to an
illegally dismissed employee, in lieu of reinstatement, the
amount to be awarded shall be equivalent to one month salary for
every year of service.”

29. The above-quoted decision of the Supreme Court is applicable

only in cases where the dismissal is found to be illegal. However
in the case at bar, no dismissal took place. And according to the
Supreme Court in the case of Lemery Savings Loan Bank vs.
NLRC (GR No. 96439, January 27, 1992)

“There being no dismissal, an award of separation

pay as a form of financial assistance is not in order.

It would be an abuse of the avowed principle of

“compassionate justice” in favour of the working
man, were we to permit a grant of financial assistance
to an employee who, from the bare facts and
circumstances, was not at all dismissed. It is true that
the Constitution has placed a high regard for the
welfare of the labor sector. However, social and
compassionate justice does not contemplate a
situation whereby the management stands to suffer
for certain misconceptions created in the mind of an
employee. Where there is no dismissal, legal or
illegal, no retribution nor compensation to the
employee involved is due from the employer.

30. Likewise, it is well entrenched in the case of Romeo Villaruel vs.

Yeo Han Guan (GR No. 169191 June 1, 2011), wherein the Supreme
Court has held, to wit:

“There is no provision in the Labor Code which

grants separation pay to voluntarily resigning
employees. In fact, the rule is that an employee
who voluntarily resigns from employment is
not entitled to separation pay.” (Emphasis Ours)

31. In the above-quoted jurisprudence, the Complainant cannot claim

 entitlement to a separation pay under the provisions of the Labor
Code since Complainant was not terminated from his employment
but instead deemed to have voluntarily resigned therefrom when
he refused to return back to work;

32. In view thereof, there being no dismissal, legal or illegal, the claim
for the payment of separation pay plus full back wages cannot be
entertained;

Complainants are not entitled

to moral damages, much less
exemplary damages, and
attorney’s fees

33. Noteworthy is the case of Banco Filipino Saving and Mortgage

Bank vs. Lazaro (GR No. 185346, 27 June 2012), where it was held:

“To obtain moral damages, the claimant must prove

the existence of bad faith by clear and convincing
evidence, for the law always presumes good faith. It is no
even enough that one merely suffered sleepless nights, mental
anguish and serious anxiety as the result of the actuations of
the other party.” (Emphasis Ours)

34. Equally important is the case of Delos Santos vs, Papa (GR No.
154427, May 8, 2009) where the Supreme Court held:

“If the court has no proof or evidence upon which the

claim for moral damages could be based, such indemnity
could not be outrightly awarded. The same holds true
with respect to the award of exemplary damages where
it must be shown that the party acted in a wanton,
oppressive or malevolent manner.” Furthermore, this
specie of damages is allowed only in addition to moral
damages such that no exemplary damages can be
awarded unless the claimant first establishes his clear
right to moral damages.” (Emphasis Ours)

35. As to the claim of attorney’s fees, jurisprudence is replete, in fact

in the case of Philippine National Construction Corp. vs. APAC
Marketing Corp. (GR No. 190957, June 5, 2013), the Supreme Court
 ruled, to wit:

“The general rule is that attorney’s fees cannot be

recovered as part of damages because of the policy that
no premium should be placed on the right to litigate.
They are not to be awarded every time a party wins a
suit. The power of the court to award attorney’s fees
under Article 2208 demands factual, legal, and equitable
justification. Even when a claimant is compelled to
litigate with third persons or to incur expenses to
protect his rights, still attorney’s fees may not be
awarded where no sufficient showing of bad faith
could be reflected in a party’s persistence in a case
other than an erroneous conviction of the
righteousness of his cause.” (Emphasis Supplied)

36. In light of the foregoing, it is without doubt that the Complainant

is not entitled to Moral Damages, much less Exemplary Damages
and Attorney’s Fees.

PRAYER

WHEREFORE, premises considered, RESPONDENTrespectfully

prays that the Complaint be dismissed for UTTER LACK OF
MERIT.

Other reliefs just and equitable are likewise prayed for.

Zamboanga City, March 21, 2018.