RENATO DALORE, Complainants, NLRC NCR Case No. 07-11147-09 -versusJEN EXPRESS TRUCKING AND/OR JUSTO LIM , Respondents. x---------------------------------------------------x REPLY POSITION PAPER COME NOW the respondents, through counsel, and to this Honorable Office, as Reply to the complainants¶ Position Paper, most respectfully state:

I. Contrary to the insinuation of the complainant in the Preparatory statement of his Position Paper. The complainant may have mistakenly entertained the idea that in every labor dispute, even if the employee¶s claims or complaints are false and baseless, the same will be resolved in the worker¶s favor. He has forgotten that the employer has also right and interest that deserves respect and protection:

³While 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)

II. 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 employee. In fact even in his Position Paper he does not claim to be a regular employee. The supposed length of his service by

-2just 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:

³As 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 ³on call´ or ³per 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:

³x 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

-3bear 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, ³ 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´

III. 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 ³per call´ or ³per trip´ basis, guaged from the following:

³A ³regular 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 ³per call´ or ³per 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

-4helper 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:
³x 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 ³ per trip´ services to the respondent what is unfortunate for the herein respondent is that before complainant severed his ³per trip´ employment, he did not even bother to return the sum of P3,500.00 intended as payment for the local helpers

-5in 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 ³per 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.


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

By: RAMON S. MASAGCA IBP No. 742170/1/28/08/Bul. Chap PTR No.VC758996/1/23/08/Val. City Roll No. 53922

Copy furnished: (by personal service) RENATO DALORE, (complainant)

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