Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. XI
Davao City

JUNEIL Y. MANIWANG,
Complainants, NLRC RAB-XI-10-00952-17

-versus-

RAINERJOHN LPG CENTER AND

SERVICES and RUBEN P.
LACIERDA, Owner,
Respondents.

x---------------------------------------------------x

POSITION PAPER

COMPLAINANT by the undersigned counsel and unto this Honorable Labor

Arbitration Office, most respectfully submit this position paper and aver the
following to wit:

PARTIES

The Complainant in this case is JUNEIL Y. MANIWANG, of legal age and

Filipino, single, with address at Bato, Toril, (nearby Phase 2, Don Lorenzo Homes)
Davao City, where they may be served with summons and other legal processes
of this Honorable Arbitration Office.

The Respondent is RAINERJOHN LPG CENTER AND SERVICES., a sole

proprietorship owned by Ruben P. Lacierda, with business address at Crossing
Bayabas Avenue, Toril (near HB1), Davao City.

STATEMENT OF FACTS

1. RAINERJOHN LPG CENTER AND SERVICES (hereinafter referred as

“Rainerjohn” for brevity) is a sole proprietorship owned and managed by
Ruben P. Lacierda. It is engaged in the business of selling and delivering LPG
 (liquefied petroleum gasoline) tanks to customers. Rainerjohn is also
engaged in the business of selling and dealing multicabs.

2. The Complainant was engaged by Ruben P. Lacierda to work as delivery

driver of Rainerjohn LPG Center and Services and a customer service
personnel in the multicab business of Lacierda under a verbal contract of
employment entered between the two.

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.

5. The Complainant started employment on February 27, 2017. During the

course of such engagement, he was able to deliver LPG to customers for two
(2) months to which he was paid his total salary of Php 8,000.00 (for the whole
2 months) as well as sell one (1) multicab to which he was paid his
commission of Php 500.00.

6. Moreover, the Complainant and Lacierda entered into an agreement wherein

the Complainant agreed to breed and condition the fighting cocks in the
latter’s farm. The Complainant also made a deal with Lacierda wherein he
would lend one of his fighting cocks to the latter and if the fighting cock wins,
Complainant will be paid.

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.

9. However, due to a misunderstanding with Lacierda regarding the fighting

cocks, herein Complainant was illegally dismissed from his work.

ISSUES

1. WHETHER OR NOT THERE WAS AN EMPLOYER-EMPLOYEE

RELATIONSHIP BETWEEN THE COMPLAINANT AND RAINERJOHN;

2. WHETHER OR NOT COMPLAINANT IS ENTITLED TO MINIMUM WAGE,

REST DAY PREMIUM PAY, OVERTIME PREMIUM PAY, AND
THIRTEENTH-MONTH PAY;

3. WHETHER OR NOT COMPLAINANT WAS ILLEGALLY DISMISSED; and

4. WHETHER OR NOT HE WAS ENTITLED TO DAMAGES AND/OR

SEPARATION PAY.

ARGUMENTS AND DISCUSSION

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:

ART. 294 [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. (Emphasis supplied.)

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).

12. Rainerjohn is a sole proprietorship owned by Lacierda and is engaged in the

business of selling of or providing LPG services which includes the delivery
of LPG tanks. The Complainant was employed by Lacierda as a
driver/delivery boy or one who delivers the LPG tanks to customers through
the use of a modified motorcycle within the Toril area. Complainant is a
regular employee of Rainerjohn/Lacierda because Complainant perform
activities which are usually necessary or desirable in the usual business or
trade of the employer regardless of the fact that he has not served for more
than a year yet.

13. Moreover, the ascertainment of the existence of an employer-employee

relationship, jurisprudence has invariably applied the four-fold test, namely:
(1) the manner of selection and engagement; (2) the payment of wages; (3)
the presence or absence of the power of dismissal; and (4) the presence or
absence of the power of control. (Abante vs. Lamadrid Bearing and Parts
Corp., G.R No. 159890, May 28, 2004)

14. There exists an employer-employee relationship between Complainant and

Respondent since the four-fold test is met. The first requirement – the manner
of selection and engagement was met when Respondent employed
Complainant through a verbal agreement via text messages, phone calls and
oral conversations in the month of February 2017. Complainant and
Respondent knew each other since they were classmates in high school.
 Complainant, who was then working as a dispatcher and/or taxi driver was
enticed by Respondent, a business man, to work for him as a driver/delivery
boy for his LPG business due to the absence of a driver/delivery boy with said
business. Complainant acceded to his request and started working as
driver/delivery boy on February 27, 2017.

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.

II. The Complainant is Entitled to

Minimum Wage, Rest Day Premium Pay,
Overtime Premium Pay, And Thirteenth-Month Pay

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.

19. The Labor Code also provides, to wit:

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.

20. Lastly, Presidential Decree No. 851 states, to wit:

 Section 1. All employers are hereby required to pay all their employees
receiving a basic salary of not more than P1,000 a month, regardless of
the nature of their employment, a 13th-month pay not later than
December 24 of every year.

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.

28. Therefore, since it has been established that the Complainant is an

employee of Rainerjohn, he is entitled to the statutory minimum wage,
compensation for days work during rest days, compensation for overtime
work, and 13th-month pay.

III. The Complainant was

Illegally dismissed.

29. Article 282 of the Labor Code provides:

ART. 282. Termination by employer. - An employer may terminate an

employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the
lawful orders of his employer or representative in connection with his
work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him
by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the
person of his employer or any immediate member of his family or his
duly authorized representatives; and
(e) Other causes analogous to the foregoing.

30. The Omnibus Rules to implement the Labor Code further provides:

Authorized causes for termination:

1. Retrenchment to prevent losses
2. Closure or cessation of operation of an establishment not due to
serious losses or financial reverses; and
 3. When the employee is suffering from a disease not curable within a
period of six (6) months and his/her continued employment is
prejudicial to his/her health or to the health of his/her co-employees.

31. In Galang vs Malasugui, G.R. No. 174173, March 7, 2012, the Supreme
Court has ruled:

In termination cases, the burden of proof rests on the employer to show

that the dismissal is for just cause. When there is no showing of a clear,
valid and legal cause for the termination of employment, the law
considers the matter a case of illegal dismissal and the burden is on the
employer to prove that the termination was for a valid or authorized
cause. And the quantum of proof which the employer must discharge is
substantial evidence. An employee’s dismissal due to serious
misconduct must be supported by substantial evidence.

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.

IV. The Complainant is Entitled

To Damages and Separation Pay
35. Article 2217 of the Civil Code provides:

ART. 2217. Moral damages include physical suffering, mental anguish,

fright, serious anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be recovered if they are
the proximate result of the defendant's wrongful act for omission.

36. The Complainant suffered mental anguish, besmirched reputation, serious

anxiety and wounded feelings because of his illegal dismissal from
Lacierda’s business, the impact it would have on his reputation as to the
community wherein he resides and his now lack of source of livelihood for
his sustenance.

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.

38. Article 2229 of the Civil Code provides:

ART. 2229. Exemplary or corrective damages are imposed, by way of

example or correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages.

39. Article 2234 of the Civil Code also provides:

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:

The employee is entitled to moral damages when the employer acted

in bad faith or fraud, in a manner oppressive to labor or in a manner
contrary to morals, good customs, or public policy. In labor cases,
 the court may award exemplary damages if the dismissal was
effected in a wanton, oppressive or malevolent manner.

41. Based from the abovementioned articles, the Complainant is entitled to

moral and exemplary damages as may be warranted and considered just
under the circumstances.

PRAYER

WHEREFORE, all premises considered, it is respectfully prayed that this

Position Paper be admitted and given due course and that this Honorable
Arbitration Branch render judgment as follows:
1. Declaring that there was an employer-employee relationship
between Juneil Y. Maniwang and Rainerjohn LPG Center and
Services/Ruben P. Lacierda;
2. Ordering Rainerjohn LPG Center and Services/Ruben P. Lacierda to
pay the Complainant the statutory minimum wage, rest day premium
pay, overtime premium pay, and thirteenth-month pay;
3. Ordering Rainerjohn LPG Center and Services/Ruben P. Lacierda to
reinstate complainant with full backwages and without loss of
seniority rights, or if the latter is not possible, to pay separation pay;
4. Ordering Rainerjohn LPG Center and Services/Ruben P. Lacierda to
pay the Complainant moral and exemplary damages.

Complaint likewise prays for such other relief as may be deemed just and
equitable.

RESPECTFULLY SUBMITTED this ________________________ at

Davao City, Philippines.

ATENEO LEGAL AID OFFICE

Counsel for the Complainant
2/F Dotterweich Hall, Ateneo de Davao University,
Jacinto St., 8000 Davao City
Tel. No. (082) 227-7460; Fax: 225-0770
By:

ATTY. MANUEL P. QUIBOD

Roll No. 33499
PTR No. 6826101 B; Davao City
MCLE Examination No. IV-000553
For the 4th Compliance
February 15, 2013, M.M

Copy furnished:

RAINERJOHN LPG CENTER AND SERVICES/

MR. RUBEN P. LACIERDA, Owner
Respondents
Crossing Bayabas Avenue, Toril (Near HB-1)
Davao City
Annex A.

Rate/ Number of Formula Total

percentage Days Worked/
Hours Worked
Minimum Wage 315 60 days ( 7 315 x 60 = P 10,900
Rate days a week P18,900
for 2 months)
Less amount
received
(P8,000)

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