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On the first issue that the Complainant has already acquired the

status of a regular employee after he was allowed to continue to work as

Driver after his contractual employment which expired on 13 June 20171 is
not correct.
The Supreme Court in the case of PDI, Inc vs Magtibay Jr.,
sustained the Labor Arbiter in his holding on the validity of the
previous contractual employment of Magtibay as an independent
contract. He also declared as binding the stipulation in the contract
specifying a fixed period of employment. According to the Labor
Arbiter, upon termination of the period stated therein, the contractual
employment was also effectively terminated, implying that Magtibay
was merely on a probationary status when his services were
terminated inasmuch as the reckoning period for probation should be
from September 21, 1995 up to March 31, 1996 as expressly
provided in their probationary employment contract. In fine, it was
the Labor Arbiters position that Magtibays previous contractual
employment, as later extended by 15 days, cannot be considered as
part of his subsequent probationary employment.

“While the Constitution is committed to the policy of social

justice and the protection of the working class, it should not
be supposed that every labor dispute will be automatically
decided in favor of labor. Management also has its own
rights which, as such, are entitled to respect and
enforcement in the interest of simple fair play. Out of its
concern for those with less privileges in life, this Court has
inclined more often than not toward the worker and upheld
his cause in his conflicts with the employer. Such favoritism,
however, has not blinded us to the rule that justice is in
every case for the deserving, to be dispensed in the light of
the established facts and the applicable law and
doctrine.”(Enriquez v. Bank of Philippine Islands 544 SCRA
593, 2008)

The nature of the employment, which is on a per trip basis, as discussed in
the respondent’s Position Paper, has been expressly admitted by the complainant
both in his original and amended complaint. He is not a regular, nor a permanent

Position Paper, Issues I, P. 4

employee. In fact even in his Position Paper he does not claim to be a regular
employee. The supposed length of his service by just mentioning in his position
paper as to when he allegedly started working does not in any way mean that he
has been regularly employed by the respondents. By the very nature of his
employment as has been fully understood by him the first day he requested the
respondents for a trip or two and fully paid therefor, the decision to continue or
to stop asking for further trips, all depend on him. This kind of relation is similar
to that of an employment with fixed period or project employment, the
termination thereof is provided in the agreement or made known to the
employee right at the time of the engagement of the service, freely agreed upon
by the parties.

The narrow and literal interpretation of Art. 280 of the Labor Code that it
outlaws employment with fixed period or agreement on the nature of
employment has been set aside in the early case of Brent School, Inc. vs.
Zamora, et al., G. R. No. 48494, Feb. 5, 1990, where it was held:

“As it is evident from even three examples already given

that Article 280 of the Labor Code, under a narrow and literal
interpretation, not only fails to exhaust the gamut of
employment contracts to which the lack of a fixed period would
be an anomaly, but would also appear to restrict, without
reasonable distinction, the right of an employee to freely
stipulate with his employer the duration of his engagement, it
logically follows that such literal interpretation should be
eschewed or avoided. The law must be given a reasonable
interpretation, to preclude absurdity in its application.
Outlawing the whole concept of term employment and
subverting to boot the principle of freedom of contract to
remedy the evil of employers’ using it as means to prevent their
employees from obtaining security of tenure is like cutting off
the nose to spite the face, or, more relevantly, curing a
headache by lopping off the head.”

In the case at bar, right at the inception of the engagement of

complainant service, he knew, as he have freely agreed, that his
employment is either “on call” or “per trip” basis, and as to how many trips

per day or as to how long he want to avail of the work or to request for
trip, all depend on him. This was never meant to circumvent the provision
of Art. 280 on regularization of an employee, but simply an exercise of the
parties right or freedom to contract which is constitutionally guaranteed
and protected.

The evil sought to be guarded against under said article are

agreements intended to circumvent what is prohibited, or the provision
intended to protect the employee. It does not apply, where as in the case
at bar, the parties have freely agreed and have dealt with each other in a
more or less equal terms without moral dominance on the part of herein
respondents, as also held in the just cited case:

“x x x. It should have no application to instances were a

fixed period of employment was agreed upon knowingly and
voluntarily by the parties, without any force, duress or improper
pressure being brought to bear upon the employee and absent
any other circumstances vitiating his consent, or where it
satisfactorily appears that the employer and employee dealt
with each other on more or less equal terms with no moral
dominance whatsoever being exercised by the former over the
latter.” (Brent School, Inc. vs. Zamora, et al., supra)

As also held in case of St. Theresa’s School of Novaliches

foundation vs. NLRC,

“ We held that Article 280 of the Labor code does not

proscribe or prohibit an employment contract with the fixed
period. We furthered that it does not necessarily follow that
where the duties of the employee consist of activities usually
necessary or desirable in the usual business of the employer,
the parties are forbidden from agreeing on a period of time for
the performance of such activities. There is thus nothing
essentially contradictory between a definite period of
employment and the nature of the employees duties. Indeed, in
the leading case of Brent School Inc vs. Zamora, we laid down
the guidelines before the contract of employment may be held
valid, to wit:

… Stipulation in employment contracts providing for

term employment or fixed period employment are valid when
the period were agreed upon knowingly and voluntarily by the
parties without force, duress or improper pressure, being
brought to bear upon the employee and absent any other
circumstances vitiating his consent, or where it satisfactorily
appears that the employer and employee dealt with each other
on more or less equal terms with no moral dominance whatever
being exercised by the former over the latter”

Contrary to the complainants’ insinuation, that he was illegally
dismissed, there is no dismissal to speak of in case at bar. Neither was his
right to due process been violated. The relationship between the
complainant and the respondents , is NOT that of a regular employment,
but merely contractual, that is, on “per call” or “per trip” basis, guaged
from the following:

“A “regular employment” whether it is one or not, is aptly

guaged from the concurrence, or non-concurrence of the
following factors- a) the manner of selection and engagement of
the putative employee; b) the mode of payment of wages, c)
the presence or absence of the power of dismissal; and d) the
means or methods by which his work is to be accomplished.
(Hijos de F. Escano, Inc. vs. NLRC G.R. No. 59229, 22 August
1991, 201 SCRA 63; Ecal vs. NLRC, G.R. Nos. 92777-78, 13
March 1991, 195 SCRA 224).” (Paguio vs. NLRC, Et al., G.R. No.
147816,13 August 2003)

Applying the foregoing guage, the kind of employment of the

complainant in this case is NOT regular employment, BUT only contractual,
that is on a “per call” or “per trip” basis. As to how much payment per trip
the dictate of the driver and helper prevails, as respondent cannot compel
any driver to ask for a trip or delivery, because the driver or helper is free,
right from the very inception to accept or reject any price which may be
suggested by the respondent. As to how many trips per day, it all depends
upon the wishes of the complainant. It also solely depends on him whether

he wants to continue asking or requesting any trip or delivery. He may stop

after one or two trips or may no longer ask for another or further trips or
deliveries. In other words, the power to continue or terminate his services
all depend on him or that the termination is already known to him at the
very first time he asked for a trip or delivery to make. Respondent has
likewise no control as to the mode of accomplishing or as to the time to
accomplish the trip.The Merchandise Transfer Receipts/Slips being issued
by the owner of the warehouse serve as the basis of the quantity and as
the instruction as to when and how, and where to deliver the items loaded.

The situation in the cases at bar, falls under the exception provided
under Art. 280 of the labor Code which reads as follows:

“x x x, 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 the employment is for the duration of the
season.” (1st par. Art. 280, labor Code)

There is thus no doubt, that the law and jurisprudence recognizes

employment that falls under the foregoing exception, and those that are
contractual or with fixed terms or period.

It is likewise very well settled, that fixed-term employment is not

proscribed more so, as in the case at bar when there is no intention
whatsoever on the part of the respondent to circumvent security of tenure.
(Labayog vs. M.Y. San Biscuits, Inc., 494 SCRA 486), as in the case at bar.

As already discussed hereinabove and in his Position paper, it all

depend upon the complainant if he will no longer ask any trip to perform or
to continue availing of the work provided by the respondents. The
complainant was the one who no longer continue asking trips to be
performed, which he did after his last delivery at the Alaska Warehouse at

Naga City, Camarines Sur, and even thereafter, when he just stopped
making and asking any further trip to any respondent client, there is no
doubt he does not anymore want to continue his “ per trip” services to the
respondent what is unfortunate for the herein respondent is that before
complainant severed his “per trip” employment, he did not even bother to
return the sum of P3,500.00 intended as payment for the local helpers in
Naga City Warehouse, and instead misappropriated the same, as shown by
the documents or writings attached to the respondents’ position paper.

As discussed hereinabove, by the nature and scheme of the “per call

or on call” work in the trucking business of the respondent, any driver or
helper may stop after one (1), few or many trips, or may be continue. In
other words, the power to continue or terminate his services all depends
upon him. If the complainant no longer wants to ask for further trips,
respondent cannot complain even if it may somehow adversely affect the
flow of services to respondents’ clients, as it is the clear understanding and
agreement even at very inception

The complainant’s claim for backwages, or separation pay and

refund of the alleged cash bond, is thus, bereft of any factual and legal
basis. He also utterly failed to state any reason or ground for his prayer for
award of , 13th month pay. He just prayed for them without any factual and
legal basis therefor.

WHEREFORE, it is most respectfully prayed, that the complaint for

illegal dismissal and money claims, be DENIED, and that respondents’
counterclaims for damages and attorney’s fees, be GRANTED.

Respondent prays for other reliefs to which they may be entitled in

law, and in equity.
Valenzuela City, for Quezon City, November 17, 2008.



Counsel for the respondents
2nd Flr. Marcela Lopez Bldg., Karuhatan
Rd., cor. Mac Arthur Highway,
Karuhatan, Valenzuela City


IBP No. 742170/1/28/08/Bul. Chap
PTR No.VC758996/1/23/08/Val.
Roll No. 53922

Copy furnished: (by personal service)