POSITIONPAPER
POSITIONPAPER
POSITIONPAPER
ALJHON A. BERMILLO
Complainant,
POSITION PAPER
RESPONDENT, unto this Honorable Commission, respectfully
submit the above-entitled pleading as follows:
PREFATORY STATEMENT
PARTIES
1
The address of Aljhon A. Bermillo was not disclosed to the respondent nor mentioned during the
proceedings before the SeNA and Labor Arbiter
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STATEMENT OF THE CASE AND PERTINENT FACTS
A. The Case
a. underpayment of wages;
b. non-payment of overtime;
c. non-payment of nightshift differential;
d. non-payment of holiday pay; and
e. non-payment of COLA.
ARGUMENTS/DISCUSSIONS
I. WHETHER OR NOT
THERE IS EMPLOYER-
EMPLOYEE RELATIONSHIP
BETWEEN THE
COMPLAINANT AND THE
RESPONDENT.
2
In the case of ATOK BIG WEDGE COMPANY, INC., Petitioner, vs.
JESUS P. GISON, Respondent, G.R. No. 169510, August 8, 2011, the
Supreme Court ruled that:
In the case at bar, the respondent did not select nor engage the
services of the complainant. As a matter of fact, sometime on 2022, the
complainant, without any invitation from the respondent, voluntarily
approached Ms. Carmelita Ferrater, hotel supervisor of the respondent and
asked the latter if it is okay to work in the hotel of the respondent. Ms.
Ferrater replied that they cannot afford to hire nor employ him in whatever
capacity since the present state of finances of the respondent is not capable
of acquiring additional or new employee, not to mention the decrease in
revenue from both walk-in guests and online booking reservations.
2
Philippine Global Communication, Inc. v. De Vera, G.R. No. 157214, June 7, 2005, 459 SCRA 260, 268.
3
Ushio Marketing v. NLRC, G.R. No. 124551, 28 August 1998, 294 SCRA 673; Insular Life Assurance
Co., Ltd. v. NLRC, G.R. No. 119930, March 12, 1998, 287 SCRA 476.
3
Complainant pleaded to the Ms. Ferrater and requested that he be
temporarily allowed to work in the hotel in any other capacity since
according to the complainant, his work will be temporary because he will be
leaving in Japan to work. Still, Ms. Ferrater refused to accept to the request
of the complainant. Complainant, despite such explanation from Ms.
Ferrater continued to stay within the premises of the hotel of the respondent.
As a matter of fact, complainant put-up and manage a mini sari-sari store in
front of the hotel of the respondent and even stayed in the hotel in which the
complainant considered it as his temporary residence which the latter
allowed for humanitarian reasons. Clearly, respondent did not hire nor
engaged the services of the complainant.
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profit to the employer, or to any person affiliated with the
employer. (Emphasis supplied)
In the case at bar, no work was performed or to be performed by the
complainant and there is also no service rendered or to be rendered that
will justify the payment of wages. Whatever he does within the premises
of the hotel was done through his own volition and is not under the
instructions of the respondent. Therefore, the respondent does not have
any legal obligation to pay the complainant his wages. As a matter of
equity and for humanitarian reasons, respondent simply gave him financial
assistance as his stay in the hotel premises while maintaining his sari-sari
store somehow contributed to the security aspect of the hotel premises but
again, such actions was done by him in his own will and is not by virtue of
any contract, agreement, instructions or orders from the respondent.
4
Abante, Jr. v. Lamadrid Bearing & Parts Corp., G.R. No. 159890, May 28, 2004, 430 SCRA 368, 378.
5
No such kind of control is present in the case at bar. The complainant
is at liberty to do things that he wants while staying in the premises of
the hotel. He is not subject to any regulations, instructions or
guidelines as to how the work is to be done simply because he is not
an employee of the respondent. Thus, it is absurd for the respondent to
impose upon the complainant the manner and means to be used by
him in performing his tasks for there is no tasks to speak of in the first
place. Again, complainant is a mere by-stander in the premises of the
respondent. Therefore, the power to control the means and manner to
be used in the performance of the work finds no application in the
case at bar.
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OVERTIME; NIGHTSHIFT
DIFFERENTIAL; HOLIDAY
PAY; AND PAYMENT OF
COLA
“On the other hand, for overtime pay, premium pays for
holidays and rest days, the burden is shifted on the
employee, as these monetary claims are not incurred in the
normal course of business. It is thus incumbent upon the
employee to first prove that he actually rendered service in
excess of the regular eight working hours a day, and that
he in fact worked on holidays and rest days.” (Emphasis
supplied)
In the case at bar, during the conference before the Honorable Labor Arbiter,
no evidence was adduced by the complainant to support his claim for
overtime, nightshift differential; holiday pay; and payment of cola. His
only justification that he is entitled to the same is his mistaken belief that he
is an employee of the respondent. Such belief is erroneous as he is not an
employee of the respondent as discussed above.
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PRAYER
______________
Representative of the Respondent
HSIRI HOTEL APARTELLE
A Mabini Street Caloocan City (JuanLuna/A Mabini crossing),
Caloocan City
Mobile number: _____________________
Email address: ______________________
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VERIFICATION/CERTIFICATION
3. I have read the contents hereof and the allegations therein are true
and correct of our own personal knowledge and based on the
authentic records;
_____________
Affiant
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NOTARY PUBLIC
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