REPUBLIC OF THE PHILIPPINES

DEPARTMENTOF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
QUEZON CITY

JIMBOY P. ABAYAN,
Complainant,

- VERSUS - CASE NO. 08-12770-12

CONTECH PROPERTIES, INC./

MARY JANE P. VILLAROSA,
Respondents.
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POSITION PAPER
(For Respondents)

RESPONDENTS, by counsel, to this Honorable Office most

respectfully aver:

PREFATORY STATEMENT

“While our laws endeavor to give life to the constitutional policy on

social justice and on the protection of labor, it does not mean that every
labor dispute will be decided in favor of the workers. The law also
recognizes that management has rights which are also entitled to respect and
enforcement in the interest of fair play”. (Portuguez vs. GSIS Family
Savings Bank, 517 SCRA 309 [2007]).

PARTIES TO THE CASE

Respondent, Contech Properties, Inc. (Respondent Company, for

brevity) is engaged in realty business with office address Block 1 Lot
50 Phase 7, Sacred Heart Village, Novaliches, Caloocan City.

Respondent Mary Jane P. Villarosa is being sued in her capacity

as officer of Respondent Company. They may be served with the
notices, orders and processes of this Honorable Office at the office
address of the undersigned counsel below-indicated.

Complainant, Jimboy P. Abayan (Complainant, for brevity), is of

legal age, Filipino and may be served with the processes of this
Honorable Office at Lot 3 Block 5 Phase 5, Towerville, San Jose Del
Monte, Bulacan.
 THE FACTS AND THE CASE

This case is for alleged illegal dismissal, underpayment wages,

non-payment of wages, non-payment of overtime pay, non-payment
of holiday pay, non-payment of holiday premium, non-payment of
rest day premium, non-payment of service incentive leave, non-
payment of separation pay, non-payment of ECOLA and attorney’s
fees.

Respondent company is engaged in realty business.

Respondent has a project in Bulacan. Complainant, upon
recommendation of a co-worker, he was hired as Mason in that
project. He was engaged for a period for the duration of the said
project. Complainant, and the rest of Respondent Company’s worker
assigned thereat, worked for 8 hours a day, from 8:00AM to 5PM,
and received a daily wage of P350. (Photocopies of the payrolls are
attached as Annex “1” and series). All workers are provided by the
company with barracks to alleviate the expense of fare in coming and
going to work as majority of its workers were residents of Metro
Manila.

While the project was on-going. Complainant left his work a

Mason in said project in Bulacan. The reason for Complainant’s
abandonment of was known only to him. In fact, Complainant never
notified Respondent Company when he abandoned his post.

Thus, Respondent Company was surprised to receive this

instant complaint filed by Complainant on September 27, 2012. The
case was then set for preliminary conference. However, after two (2)
hearings being conducted by this Honorable Office, no settlement
was reached by the parties. This Honorable Office thereafter
required both parties to submit their respective position papers.

Hence, this instant position paper for Respondents.

ISSUES

1. Whether Complainant is a regular employee of

Respondent Company;

2. Whether Complainant was illegally dismissed; and

3. Whether Complainant is entitled to the monetary

claims prayed for.
 DISCUSSION

With due respect, Respondent Company submits that

Complainant is not its regular employee, thus neither is he illegally
dismissed nor entitled to the monetary claims prayed for.

Anent the first issue:

Complainant is NOT a regular employee of Respondent

Company.

Firstly, Complainant worked only with Respondent Company

for a specific project. Further, Complainant was merely
accommodated by Respondent Company upon recommendation of a
co-worker.

Secondly, Complainant knew, at the time of his engagement as

a Mason Carpenter that his work will coincide with the completion of
the project. Such fact was communicated to him by Respondent
Company when he started to work.

Finally, it is worthy to state Article 280 of the Labor Code which

provides and we quote:

“Article 280. Regular and casual employment. – The provisions of

written agreement to the contrary notwithstanding and regardless of the
oral agreement of the parties, an employment shall be deemed to be regular
where the employee has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer, except
where the employment has been fixed for a specific project or
undertaking the completion or termination of which has been
determined at the time of the engagement of the employee or where
the work or services to be performed is seasonal in nature and the
employment is for the duration of the season”. (Bold supplied.).

In this case, Complainant was engaged to work only for a

specific project. Clearly, he is not a regular employee of Respondent
Company.

Anent the second issue:

The rule is settled that there is illegal dismissal when the

employment of a worker is terminated without valid of authorized
causes.
 In this case, it was Complainant who voluntarily severed his
employment with Respondent Company when he abandoned his
work in Bulacan. It is Complainant alone who knows the reason or
reasons for such abandonment. Respondent Company was not
informed or has any information for Complainant’s abandonment of
work. Thus, Complainant could not claim that he was illegally
dismissed by respondent Company.

In addition, the nature of Complainant’s employment was one

of a project employment. It was made known to him at the time of
his engagement by Respondent Company. Complainant, therefore,
knows that he is a contractual employment and his employment will
expire after the project is terminated.

Similarly, stated, when Respondent Company’s project was

completed, Complainant knows that his employment would also be
terminated. Thus, there is no illegal dismissal, constructive or actual,
to speak of.

Curiously, Respondent Company could not understand why

Complainant filed this instant complaint for illegal dismissal when he
knows that the project in Bulacan was already completed. He knows
that his employment is for the duration of the said project as it was
made known to him by Respondent Company. Thus, Respondent
Company could not be blamed in speculating that Complainant is
using this Honorable Office to extort easy money from respondents.

Anent the third issue:

Anent the claim for underpayment of wages. It is settled rule that

there is underpayment of wages only when the daily wage given to
an employee is below the prescribed minimum wage in a particular
working place. In this case, Complainant is receiving the minimum
wage provided for by law.

Complainant is receiving a daily wage of Three Hundred Fifty

Pesos (Php350.00). Per Wage Order No. RBIII-16, the minimum wage
prescribed in Bulacan Area is P322.50 for non-agricultural
establishment which assete do not exceed P30 million. The said
amount is the minimum wage prescribed. Thus, there was no
underpayment of wages to speak of.

Anent the claim for non-payment of wages. Complainant receives

his wage before he left is work. It is reflected in the payroll (Annex
“1”). Thus, it is Complainant who has to prove the period he is
claiming to have not receive his wage.
 Anent the claim for non-payment of overtime pay and non-payment
of holiday pay, holiday premium and rest day premium. While our Labor
Code provides that in cases of monetary claims the employer has the
burden of proof that said claims are already paid, the same is not true
with respect to the monetary claims prayed for in this case by
Complainant.- The said monetary claims fall under the exception
from the general rule where the burden of proof is with Complainant.

The Supreme Court enunciated in the case of Ducut et al. vs.

Court of appeals, G.R. No. 169434, the necessity of offering sufficient
proof in to be entitled to the above-monetary claims, thus it was held:

“It could not have been the purpose of our law to

require their employers to give them overtime pay or
night shift differential, even if they are not actually
working. X x x ….. In this case, petitioners failed to
submit sufficient proof that overtime and night shift
work were actually performed to entitle them to the
corresponding pay”. (Underscoring supplied).

Complainant in this case should offer proof showing the

specific date he rendered overtime work so that Respondent
Company could adduce evidence to the contrary, in if indeed
rendered, could pay Complainant. As far as Respondent Company is
concerned, all its workers have to work only for 8 hours.

Also, Complainant should specify the unpaid holiday. He must

show proof that a day prior to the holiday he rendered to work to be
entitled to holiday pay.

It must be stressed that Respondent Company treated its

employee with high degree of respect. It is manifested by the daily
wage given to them, that is, P350.00, way above the minimum wage
prescribed by law.

On the claim for separation pay. Under the Labor Code and
existing jurisprudence, separation pay is available only when: 1). the
termination of employment is due to authorized causes provided by
law (Article 283 of the Labor Code); 2). the termination of
employment is due to disease (Articled 284, Labor code); 3). the
termination of employment is illegal; and4). In exceptional cases
where separation pay is given as a measure of social and
compassionate justice.
 From the foregoing, Complainant’s claim never falls in any of
the cases above-cited to be entitled to separation pay. Needless to
say, Complainant’s claim for separation pay is utterly baselss and
lacks merit.

Anent the claim for non-payment of ECOLA. Prior to the

effectivity of Wage Order No. RBIII-16, applicable in Region III which
covers Bulacan Areas, the minimum wage prescribed was P308.50.
When Wage Order No. RBIII-16 took effect, it increases an amount of
P14.00 as ECOLA and incorporated in the minimum wage of P322.50.
Without being repetitive, Complainant is receiving the amount of
P350.00, thus it is way above the minimum wage, way above the
minimum wage, including ECOLA.

Anent the inclusion of other Respondent Mary Jane P. Villarosa.

Complainant impleaded Mary Jane P. Villarosa in this case.

With due respect to this Honorable Office, Villarosa is merely an
officer of Respondent company. Thus, she has no liability, directly or
directly, in this labor dispute filed by Complainant. She ought to be
dropped from this case. It must be emphasized that Respondent
Company and its officers are separate entity. Absence of bad faith on
the part of the officers will certainly absolved them from liability of
the corporation.

PRAYER

WHEREFORE, it is most respectfully prayed of this Honorable

Office that the instant case be dismissed for utter lack of merit.

Respondents pray for other reliefs and remedies just and

equitable in the premises.

Caloocan City for Quezon City, October 10, 2012.

LYNDON D. ESCALA
Counsel for Respondent s
Room 309 Baliwag Transsit Bldg.
2 Avenue, Gracepark, Caloocan City
nd

PTR No. 4931446; 01.30.2012, Cal. City

IBP No. 887454, 01.30.2012, N. Samar
Attorney’s Roll No. 57440
MCLE Compliance No. IV-006308, 06.19.2012
 VERIFICATION/CERTIFICATION

I, MARYJANE P. VILLAROSA, of legal age, Filipino, married

and with office address at Block 1 Lot 50 Phase 7, Sacred Heart
Village, Novaliches, Caloocan City, after having been sworn to
according to law, depose and say that:

1. I am the authorized representative of Plaintiff, Contech

Properties, Inc.;

2. I caused the preparation of the foregoing document;

3. I have read and understood the same and all the allegations
therein are bases on my personal knowledge;

4. I have not commenced any action of the same nature

against the defendants herein in other court, judicial, quasi-
judicial, administrative bodies or any tribunal;

5. If I have come to know of the same proceeding pending

before any other court, judicial, quasi-judicial,
administrative bodies or any tribunal, plaintiff undertake
to inform this Honorable Court within five (5) days from
knowledge hereof.

IN WITNESS HEREOF, I hereunto affixed my signature this

____ day of November 2012 in Caloocan City.

MARY JANE P. VILLAROSA

Affiant
Identification Card No. ________
Valid until ___________________

SUBSCRIBED AND SWORN to before me this ____ day of

November, 2012 in Caloocan City, Philippines. Affiant exhibited to
me her identification card as above-shown.

Doc. No._____
Page No. ____
Book No. ____
Series of 2012.

Copy furnished:
MR. JIMBOY P. ABAYAN
Complainant
Lot 3 Block 5 Phase 5, Towerville
San Jose Del Monte, Bulacan.