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Whether or not complainants are illegally dismissed?

Whether or not complainant are employee of respondent manpower or respondent restobar?

Whether or not complainants were actually dismissed?

Whether or not complainant are entitled to their claim for night shift differentials, overtime pay,
holiday pay, and unpaid wages for 15 days?


1. No notice
2. No valid grounds for dismissal

The complainants are employees of the respondent Happy restobar since The man power agency is a
labor only contractor under Section 5(ii)[44] of the Rules Implementing Articles 106-109 of the Labor
Code, as amended, since it did not exercise the right to control the performance of the work of
While there is no specific provision in the Labor Code which governs the "floating status" or
temporary "off-detail" of security guards employed by private security agencies, this situation was
considered by this Court in several cases as a form of temporary retrenchment or lay-off.1

Discussion and Argument

The Complainant was illegally dimissed.

To determine illegal dismissal, it must be establish that there exist an employer-employee relationship

TTo ascertain the existence of an employer-employee relationship jurisprudence

has invariably adhered to the four-fold test, to wit: (1) the selection and
engagement of the employee; (2) the payment of wages; (3) the power of
dismissal; and (4) the power to control the employee's conduct, or the so-called
"control test."[18] Of these four, the last one is the most important.[19] The so-
called control test is commonly regarded as the most crucial and determinative
indicator of the presence or absence of an employer-employee relationship.
Under the control test, an employer-employee relationship exists where the
person for whom the services are performed reserves the right to control not only
the end achieved, but also the manner and means to be used in reaching that
In applying the aforementioned test, an employer-employee relationship is
apparently present in the case at bar. The Respondent Restobar exercises control
over complainants by requiring them to work from 10:00 am to 10:00 pm, 7 days
a week, the complainants are closely supervised and controlled by the restaurant
manager. Their attendance and their performance were highly supervised by the
manager of respondent restobar. The complainants must strictly adhere to the
rules and regulations of the restobar otherwise they will penalized or disciplined
by the respondent restobar.
As of the matters of dismissal, The complainant was Illegally dismiss

Under the law, Employees may not be terminated from their regular employment
except for just or authorized causes under the Labor Code and other pertinent laws.
Just causes are blameworthy acts on the part of the employee such as serious misconduct, willful
disobedience, gross and habitual neglect of duties, fraud or willful breach of trust, commission of a
crime and other analogous causes (Art. 282, Labor Code).

In this case, The complainant did not commit any prohibited acts under
Art. 282 of the labor . Hence, theres no just cause in terminating the
complainant. Moreover, Their right to due process has also been
violated since they have not been properly notified for the termination.
Due process under the Labor Code involves two aspects: first, substantive - the
valid and authorized causes of termination of employment under the Labor
Code; and second, procedural the manner of dismissal.

In conclusion, The existence employee-employer relationship between the

complainant is present ,There is no just cause in terminating the complainant and
their right. Their right to due process has been violated.
The complainants being in a floating status is deemed considered constructively

The complainants are not entitled to night shift differentials Under Philippine labor laws,
an employee who works between 10 p.m to 6:00 a.m. should be paid a night shift differential of not less than
ten percent (10%) of his regular wage. Since, the complainants does not work between 10:00 pm to 6:00 am
then they are not entitled to night shift differentials.

The complainant are entitled to overtime pay and Holiday pay under
Art. 87. Overtime work. Work may be performed beyond eight (8) hours a day provided that the employee is paid for
the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent (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.

Since, they work more than 8 hours and they have work on holidays. It is only proper to give them overtime pay and
holiday pay.

As to the unpaid wages, The resto bar should pay the complainant backwages.

In the case of Milan vs National Labor Relations Commission, the case discussed the question: can
the employer withhold the final pay of the employees? the Supreme Court held that employers have
no legal authority to withhold an employees final pay and benefits despite the fact that the employee
effectively transferred his liability to his employer by defaulting on a loan guaranteed by the latter.
Specifically, the Court held: What an employee has worked for, his employer must pay.

WHEREFORE, it is most respectfully prayed that a Decision be rendered by

this Honorable Office

(i.) declaring that;

a.) complainant was illegally dismissed;

b.) complainant is entitled for overtime pay,

holiday pay and unpaid wages;
Other remedies just and equitable under the premises is likewise prayed.

Cebu City , 6 October 2017