JUNEIL Y. MANIWANG,
Complainants, NLRC RAB-XI-10-00952-17
-versus-
x---------------------------------------------------x
POSITION PAPER
PARTIES
STATEMENT OF FACTS
3. The Complainant and Lacierda further agreed that the former shall receive a
salary of Php 4,000.00 per month, half of which to be paid every 15 days and
a commission of Php 500.00 for every multicab sold by the Complainant.
4. The work schedule of Complainant is 7 days a week with no rest days and
starts as early as 6 in the morning and ends as late as 8 in the evening.
Complainant was also a stay-in employee of Lacierda. The latter also treated
Complainant as if he was a househelper or “boy” since he was ordered in
multiple occasions to deliver or pick up laundry, clean the premises, wipe/mop
the floor and other similar things.
7. However, after two (2) months he took an absence from work to have some
rest since his body could no longer take the heavy and strenuous amount of
work imposed by Respondent. To allow his body to recuperate, he took some
rest for a few days to which Respondent acceded.
8. After such time, he went back to Lacierda and continued breeding and
conditioning the latter’s fighting cocks. Complainant resumed to report for
work as delivery boy of Rainerjohn.
ISSUES
I. There Exists an
Employer-Employee Relationship
Between the Complainant
and Rainerjohn
10. The complainant is a regular employee based on Article 294 of the Labor
Code of the Philippines, to wit:
11. Based on the aforequoted provision, the following employees are accorded
regular status: (1) those who are engaged to perform activities which are
necessary or desirable in the usual business or trade of the employer,
regardless of the length of their employment; and (2) those who were initially
hired as casual employees, but have rendered at least one year of service,
whether continuous or broken, with respect to the activity in which they are
employed (Price, et. al. vs. Innodata Phils. Inc., G.R. No. 178505, 30
September 2008).
15. The second requirement – the payment of wages is also met because
Complainant and Respondent entered into an agreement for the payment of
P4,000 per month in consideration of the services rendered by Complainant.
Complainant received his salary every 15 days from Respondent.
16. The third requirement – the power of dismissal is also met as complainant
wields such power over Complainant. In fact, Respondent exercised such
power when he illegally dismissed herein Complainant.
17. The fourth requirement – the power of control is also met as Respondent
controlled Complainant’s conduct as an employee as to the means and
methods by which the work is accomplished. The power of control refers
merely to the existence of the power. It is not essential for the employer to
actually supervise the performance of duties of the employee, as it is sufficient
that the former has a right to wield the power. (Lirio vs. Genovia
G.R. No. 169757, 27 November 2011) The Respondent, as owner, clearly
exercised some degree of control over Complainant as to his work as a
driver/delivery boy as the latter is subject to the former’s order and the means
and methods by which his work is to be accomplished.
18. Workers are entitled to the statutory minimum wage rates as determined and
prescribed by the Regional Tripartite Wages and Productivity Board.
Moreover, they are entitled to the wage increases as provided under Republic
Act No. 6727 or the Wage Rationalization Act, to wit:
A.1. The wage increases prescribed under Wage Orders apply to all
private sector workers and employees receiving the daily minimum
wage rates or those receiving up to a certain daily wage ceiling, where
applicable, regardless of their position, designation, or status of
employment, and irrespective of the method by which their wages are
paid, except workers of duly registered Barangay Micro Business
Enterprises (BMBEs) with Certificate of Authority issued by the Office of
the Municipal or City Treasurer.
ART. 87. Overtime work. – Work may be performed beyond eight (8)
hours a day provided that the employee is paid for the overtime work as
additional compensation equivalent to his regular wage plus at least
twenty-five (25%) thereof. Work performed beyond eight hours on a
holiday or rest day shall be paid an additional compensation equivalent
to the rate of the first eight hours on a holiday or rest day plus at least
thirty percent (30%) thereof.
ART. 91. Right to weekly rest day. - (a) It shall be the duty of every
employer, whether operating for profit or not, to provide each of his
employees a rest period of not less than twenty-four (24) consecutive
hours after every six (6) consecutive normal work days.
ART. 93. Compensation for rest day, Sunday or holiday work. - (a)
Where an employee is made or permitted to work on his scheduled rest
day, he shall be paid an additional compensation of at least thirty percent
(30%) of his regular wage. An employee shall be entitled to such
additional compensation for work performed on Sunday only when it is
his established rest day.
(b) When the nature of the work of the employee is such that he
has no regular workdays and no regular rest days can be scheduled, he
shall be paid an additional compensation of at least thirty percent (30%)
of his regular wage for work performed on Sundays and holidays.
(c) Work performed on any special holiday shall be paid an
additional compensation of at least thirty percent (30%) of the regular
wage of the employee. Where such holiday work falls on the employee’s
scheduled rest day, he shall be entitled to an additional compensation
of at least fifty per cent (50%) of his regular wage.
21. Based on the facts of the case, the Complainant was not given the statutory
minimum wage prescribed by the Board. His salary was a measly sum of
Php 4,000.00 a month which is way below the minimum wage allowed by
law.
22. Further, the Complainant worked from 6 a.m. to 8 p.m. and for 7 days a
week without any rest days. It is clear, therefore, that he was working more
than eight (8) hours a day and even on days that should have been his rest
day.
23. Due to the high demand of Respondent’s business service and considering
that Complainant alone was the Business’ delivery boy, Complainant was
working for 14 hours a day as his shift started from 6 A.M. up to 8 P.M. to
accommodate all of Respondent’s customers.
24. Moreover, he was not given by Respondent a rest day as required by law
as he was made to work for 7 days a week.
25. Moreover, in times where he was not delivering LPG tanks, he still incurred
work for the benefit of Respondent as he was also ordered to do things
which a househelper/”boy” does like delivery or pickup of laundry, cleaning
of the premises, wiping of floors, and other similar things.
26. Thus, he is entitled to overtime pay and compensation for days worked
during rest days and corresponding overtime pay for work done during rest
days.
27. Finally, the Complainant is also entitled to 13th-month pay. The law is plain
and direct that all employers are required to pay all their employees 13 th-
month pay. It has also been held in the case of Central Azucarera De
Tarlac vs. Central Azucarera De Tarlac Labor Union-NLU, G.R. No.
188949, July 26, 2010 that:
All rank-and-file employees, regardless of their designation or
employment status and irrespective of the method by which their wages
are paid, are entitled to this benefit, provided that they have worked for
at least one month during the calendar year. If the employee worked for
only a portion of the year, the 13th-month pay is computed pro rata.
30. The Omnibus Rules to implement the Labor Code further provides:
31. In Galang vs Malasugui, G.R. No. 174173, March 7, 2012, the Supreme
Court has ruled:
32. Department Order 147-15 provides for the procedure for the termination of
the employee due to just causes, it must be accompanied by two notices:
The first informing him of the charge against him, giving him an
opportunity to be heard and an opportunity to furnish evidence on his
behalf; The second notice to contain the decision dismissing him after
reviewing the evidence furnished by him and after having given him an
opportunity to be heard.
33. Based on the facts of the case, Complainant was dismissed not due to any
of the valid causes above stated and provided by law but rather only due to
a misunderstanding between Complainant and his employer Lacierda. Such
misunderstanding cannot constitute a ground to terminate an employee.
34. In addition, based on the facts of the case, Complainant was immediately
terminated from his work without having been served any notice and more
so without ever having been given any opportunity to be heard and to
furnish evidence on his behalf.
37. Considering that Complainant felt that he would not be able to gain another
employment and the fact that he was being treated like a househelp in the
business of Lacierda, it is evident that Complainant is entitled to the moral
damages.
ART. 2234. While the amount of the exemplary damages need not be
proved, the plaintiff must show that he is entitled to moral, temperate or
compensatory damages before the court may consider the question of
whether or not exemplary damages should be awarded.
40. In the case of Montinola vs. PAL, G.R. No. 198656, September 8, 2014,
the Supreme Court Ruled:
PRAYER
Complaint likewise prays for such other relief as may be deemed just and
equitable.
Copy furnished:
18,900 – 8000
= 10, 900
Rest Day 30% 8 days 315 x 0.30 = P756
Premium (restdays 94.5
required by
law) 94.5 x 8= P756
Overtime Pay 25% Excess of 6 315 / 8 = P15,543.45
Premium for hours per day 39.375 (rate
regular days per hour)
39.375 x 25%=
9.84375
(overtime
premium per
hour of work)
39.375 +
9.84375 =
49.81875
(Overtime pay
per hour of
work)
49.81875 x
6(excess hours
per day) =
298.9125
(Overtime pay
per day)
298.9125 x
52(regular
days worked
without
overtime pay,
rest days not
counted) =
P15,543.45
Overtime Pay 30% 8 days (whole 315 x 30% = P3,194.1
Premium for rest 2 months) 94.5 (rest day
day premium per
rest day)
315 + 94.5 =
409.5 (rest day
pay)
409.5 / 8hrs =
51.1875 (Pay
per hour during
rest day)
51.1875 x
30%=
15.35625
(overtime
premium per
hour of work
during rest
day)
51.1875 +
15.35625 =
66.54375
(Overtime pay
per hour of
work)
66.54375 x
6(excess hours
per rest day) =
399.2625
(Overtime pay
per rest day)
399.2625 x
8(rest days
worked without
overtime pay)
= P3,194.1
Thirteenth At 9,450 per 2 months = 2/ 9,450 x 2/12 P1,575
Month Pay month 12 = P1,575
Sum total =
P31,968.55