REFRESHERS REVIEW IN LABOR STANDARDS

Activity No.2
20 November 2016

I NSTRUCTIONS:
1 Prepare a Position Paper for the complainant in Case No. 1.
Represent the respondent in Case No. 2.
2 You shall be rated on the basis of the completeness of your presentation and
thoroughness in your discussion on the issues involved.
3 A complete and thorough position paper for a party represented shall be given 50
points each or a total points of 100. Your position paper should indicate and
contain the following:
a
b
c
d
e
f

Title, Caption and Case # (if provided)

Parties circumstances
Statement of the Issues
Statement of Facts (as given)
Discussion and Arguments (cite pertinent laws and jurisprudence)
Prayer (state clearly the relief/s sought for)

4 Write your complete name as counsel.

5 Do research on the applicable laws and jurisprudence which you think is useful
for your arguments and discussion putting in mind the issues involved.
6 Write your Position Paper in a yellow pad paper. It should be stapled and placed
inside a long brown envelope.
7 Due for submission next meeting on 26 November 2016

Case No.1
Complainant
Enrique Sombe- complainant is of legal age, married, Filipino, and a
resident of Zone Kamunggay, Barangay Mabolo, Cebu City.
Complainant averred that he worked for respondents as driver of the
restaurant since March 2012. He was assigned to drive the vehicle upon
instructions the respondents. He was also required to drive the children of
the respondents in going to and from the school. He was then paid P350

daily, which complainant argued to be below the mandated minimum wage

of P353 daily. He was often made to render work more than 8 hours of work
but was not paid overtime pay. He was also not paid night shift differentials,
13th month pay, holiday pay and service incentive leave pay.
On 10 June 2015, respondent Kathy Sumo got angry with him because
of the delay in fetching her from Lapu-Lapu City going to Mandaue City.
Complainant reasoned out that it was due to heavy traffic jam but
respondent -Sumo did not listen to him. Instead, he was told not to report for
work anymore. It is the submission of the complainant that he performed
services both as family driver and driver of respondents restaurant business
as he also deliver certain food stuff and groceries to the restaurant. Hence,
his filing of the instant case.
Respondents
SUSHI JAPANESE RESTAURANT is a Japanese restaurant in Mandaue
City. Individual respondents Kathy Sumo and Suzuki Sumo are impleaded as
the proprietor-owners of the restaurant.
For their defense, the respondents averred that complainant was hired
as family driver in March 2012. Complainants daily routine includes driving
the respondents son named Sashi from their residence every morning and
later on fetch him from school back to the residence usually at 11:30 in
the morning and then take the spouses to the restaurant.
After bringing the respondent spouses to the restaurant at 12:00
noon, his morning work schedule accordingly ends as the spouses would be
busy in the restaurant. Complainant was free to go wherever he wanted and
free to do as he pleased with his time in the afternoon. Complainant would
either go home or sometimes choose to stay in the parking lot of the
restaurant as he has built friendship with the guards or with the company
driver who awaits for instructions in the parking lot. By 5:00 in the
afternoon, complainant would fetch Sashi from school and take him home
and then proceed to the restaurant to wait for respondent spouses.
On 18 June 2015, complainant talked to respondent Kathy Sumo.
Complainant allegedly admitted to respondent-Kathy that he received the
text messages directing him to report back to work but he intentionally did
not report to work because of the misunderstanding with her husband
-Suzuki. He wanted to return to work only upon the condition that he would
not see Suzuki in any case. Respondent -Kathy explained to complainant
that being their family driver, the condition is simply impossible to happen.
Soon after the incident and before respondent Kathy could even decide as
to what to do with complainants predicament, she was informed that
complainant already filed the complaint.

Respondents submit that complainant was employed as family driver.

He only served the respondent spouses and their son and did not perform
any task for the Japanese Restaurant. Complainant was not even in the
payroll of the restaurant because he does not render any form of service in
restaurant as they have a restaurant driver. Respondents emphasized that
the vehicle complainant was driving is registered under the name of
respondent Kathy and exclusively used for family affairs. It is never used for
the concerns of the restaurant business because there is another vehicle
usedin servicing the transportation needs of the restaurant.
Mandatory conciliation and mediation conferences were conducted in
accordance with Section 8 Rule V of the 2011 NLRC Rules of Procedure as
amended by En Banc Resolution No. 11-12, series of 2012. Parties explored
avenues for settlement but to no avail. Partiers were, thus, directed to file
their respective position papers on 26 November 2016 at 8:00a.m.. Parties
jointly defined the issues, which they submit for resolution to the Labor
Arbiter, as follows:
1

Whether or not complainant is a domestic servant falling within the

definition of Batas Kasambahay ( RA 10361) or a regular employee of
the respondents restaurant business

Whether or not complainant entitled to his money claims for wage

differentials, overtime pay and 13th month pay since his employment
in March 2012.

Case No. 2

Complainant-Angel Manza, is of legal age, single, with address at Guadalupe,

Cebu City. She averred that she was an employee of the respondents; that she
continuously worked as Hotel Front Desk personnel since 5 March 2013 and still
continues to report for duty until present. She was allegedly paid P300.00 per day.

Complainant asserted that she was allegedly required to render overtime work
but was not paid overtime pay, which can be duly supported by the computerized
biometrics daily time record allegedly in the possession of respondents.

On 4 July 2016, complainant decided to file a case against the respondents for
payment of her overtime pay and of the service charge since employed in 2013.The
case is docketed as NLRC RAB VII Case No. 07-1444-16.

Respondent Alba Uno Hotel, on the other hand, is a domestic corporation

engaged in the hotel business with address at Ayala, Cebu City. Individual respondents
Mayet Alba and Jay Alba are impleaded as officers of the respondent hotel and may
notified at the same address.

For their defense, respondents averred that complainant was initially employed
by respondent hotel on 5 March 2013 as a contractual/probationary employee until she
became a regular employee on 1 November 2014.

It is the submission of the respondents that complainant merely worked for 6

hours a day and was never required to render overtime work considering that there are
other Front Desk Officers who could readily attend to the hotel guests. Complainant
allegedly worked only straight for 8-hours whenever Cebu City is celebrating Sinulog
festivities and guests are plenty. In ordinary days, complainant would just attend to the
booking of convention halls and at times, the wedding accommodations. And whenever
there is no work to be done, complainantwould either loiter at the hotel lobby and would
even leave the hotel premises and just come back to register her time-out.

Complainant was allegedly provided 3 meals at P50.00 per meal as part of her
compensation and in addition to her daily wage of P300.00. Complainant was also
deemed to have been paid of the service charge as the same is integrated in her daily
wage. In support thereof, respondent-hotel presented in evidence the vouchers
showing payment and receipt of the complainant of her wages indicating that service
charge is incorporated therein. Respondents therefore, argued that there is no basis for
complainants claim for overtime pay and service charges.

Mandatory conciliation and mediation conferences were conducted in

accordance with Section 8 Rule V of the 2011 NLRC Rules of Procedure as amended.
No settlement was arrived between parties. Parties stipulated that the sole issue to be

resolved in the case is whether or not complainant is entitled to her money claims for
overtime pay and service charge. Parties were then directed to submit their respective
position papers on 26 November 2016. Thereafter, the instant case was deemed
submitted for decision based on evidence found on record.