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Republic of the Philippines

Department of Labor and Employment


NATIONAL LABOR RELATIONS COMMISSION
REGIONAL ARBITRATION BRANCH NO. 02
Tuguegarao City, Cagayan

RODEL SALVADOR, JERALYN


D. TOLENTINO,
Complainants.
NLRC CN. RAB II-07-
-versus- 00371-2018
TRIPPLE A. FOODHUB and/or
PAGS FOOHUB and/or MICHEL
O. MACARUBBO.
Respondent.
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POSITION PAPER
Respondent, unto this Honorable Labor Arbitration Office
most respectfully submits this Position Paper and avers the
following to wit:

PARTIES

Complainant RODEL SALVADOR is of legal age, married with


residential address at Macanaya, Appari, Cagayan where he
could be served with summons and other legal processes of this
Honorable Office;

Complainant JERALYN D. TOLENTINO is of legal age, married


with residential address Maharalika Highway, Pengue Ruyu,
Tuguegarao City, where she could be served with summons and
other legal processes of this Honorable Office.

Respondent is the owner/proprietor of PAGS FOODHUB and a


resident of #21 A Pengue Ruyu, Tuguegarao City, where he could
be served with summons and other legal processes of this
Honorable Office.

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STATEMENT OF FACTS

On 08 November 2017, I hired the complainant Rodel Salvador


as Cook and Sometime in March 2018, while Complainant
Jeralyn D. Tolentino volunteered and asked me if she can be a
server. Considering that she is my cousin, I acceded;

Rodel Salvador was receiving Three Hundred Fifty Pesos


(350.00) for doing the task of cooking while Jeralyn Tolentino
was receiving One Hundred Twenty Pesos (120.00) covering
from 6:00 o’clock in the morning to 2:00 o’clock in the
afternoon;

Respondent and complainant Rodel Salvador agreed that, the


latter will be the one to decide what will be the menus to be
served in a day and after completing the menus, the latter is
allowed to prepare his own product together with the other
complainant;

Rodel after finishing his task, he and Jeralyn prepare and sell
their own products in my canteen. They usually displayed their
product at 10:00 o’clock in the morning. They consistently sell
their products from 10:00 o’clock in the morning until 6:00
o’clock in evening. Then they stayed inside the premise;

During Saturdays Rodel only cooks until 10:00am and goes


home to Appari and returns back during Mondays in the
morning, while Jeralyn stays in the premise until Sunday.

On 16 June 2018, after Rodel finished his tasks, he informed me


that he will be going home to Appari. But later I found out that,
he did not go home, but he finds employment at MCC Carwash
and Lounge located at Pengue Ruyu, Tuguegarao City, as cook. I
found out also that he still stayed overnight in the canteen until
17 June 2018;

On 17 June 2018, my cousin Jeralyn informed me that she wants


also to work in MCC Carwash and Lounge;

On 18 June 2018, I opened my canteen but Rodel and Jeralyn


were not there. I just found out that they are already working at
MCC Carwash and Lounge;

Considering that I have no cook, I closed my canteen on June 20


and 21, 2018. I padlocked the canteen;

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On June 22, 2018 at around 6:00 in the morning, I opened my
canteen in order to prepare for the incoming customers. While
preparing the menu for the day, I noticed that the SPEED FIRE
BURNER valued Four Thousand Five Hundred (4,500), WALL FAN
valued One thousand Five Hundred (1,500) and GASUL TANK
valued One Thousand Five Hundred (1,500) were missing;

Worried, I searched my canteen for the said items. I found out


that the screen beside the backdoor was destroyed;

Unable to locate the missing items, I went to the Police Station


at around 8:00 in the morning to report the incident. I decided
to close my canteen that day because of what happened and to
look for the perpetrators1;

In despair over the lost items, I went home and told my sister
Michelle Javier Macarubbo about the lost items. My sister then
disclosed that Rodel and Jeralyn went to her and told her that
they went to the canteen last June 20, 2018 in the afternoon to
get their belongings2;

Considering that Rodel and Jeralyn do not have the keys but
were able to get their belonging without my consent, it
prompted me to report to the barangay the incident happened
in my canteen;

I immediately went to the Office of the Punong Barangay of Brgy.


Pengue Ruyu, Tuguegarao City, Cagayan to report the incident
and requested that Rodel Salvador and Jeralyn Tolentino be
invited to clarify the incident happened in my restaurant;

During the hearing, Rodel and Jeralyn admitted that they


entered the canteen by breaking in through the screen. They also
admitted to taking my properties and Rodel offered to pay the
amount of the items that were missing. However, I answered in
negative. Thus, no settlement was reached3;

That on June 25, 2018, I was able to talk to a certain Sandra


Santiago who witnessed and saw that Rodel and Jeralyn went
inside my canteen on June 20, 2018 in the afternoon. Sandra
told me that she saw Jeralyn and Rodel waiting for a tricycle,

1 ANNEX 1- Copy of the Police Excerpt


2 ANNEX 2- Affidavit Michelle Javier Macarubbo
3 ANNEX 3- Certification to File Action

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with them were their personal belongings and aside from those
belongings, she saw big sack bags4;

One of my staffs, Angelo Pacquing, also disclosed to me that on


June 18, 2018, Rodel called him while Angelo was in Lallo asking
him to return to Tuguegarao so that he could accompany him
and get their belongings at my carinderia5
On 16 July 2018, I filed a criminal case against the complainants
before the Office of the Prosecutor, Tuguegarao City and the
case was docketed as II-03-INV-018G-004916

On 24 July 2018, the complainants file a case against me for


Illegal Dismissal, Non payment salary, underpayment of salary,
Non enrollment to SSS, Pag Ibig Fund and Philhealth as
members.

ISSUES

I.

WHETHER OR NOT THERE EXISTS AN EMPLOYER-


EMPLOYEE RELATIONSHIP BETWEEN THE
PARTIES

II.

WHETHER OR NOT COMPLAINANTS WERE


ILLEGALLY DISMISSED THUS ENTITLED TO
SEPARATION PAY

III.

WHETHER OR NOT THE COMPLAINANTS ARE


COVERED UNDER THE COMPULSARY
ENROLLMENT UNDER SSS, PAG IBIG FUND AND
PHILHEALTH AS MEMBER

4 ANNEX 4- Affidavit of Sandra Santiago


5 ANNEX 5- Affidavit of Angelo Pacquing
6 ANNEX 5- INVESTIGATION DATA FORM

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ARGUMENTS

THERE WAS NO EMPLOYER-EMPLOYEE RELATIONSHIP


BETWEEN THE PARTIES

To determine the existence of an employer-employee


relationship, four elements generally need to be considered,
namely: (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. These elements or
indicators comprise the so-called "four-fold" test of employment
relationship7.

A distinguishing characteristic of "pakyaw" or task basis


engagement, as opposed to straight-hour wage payment, is the
non-consideration of the time spent in working. In a task-basis
work, the emphasis is on the task itself, in the sense that
payment is reckoned in terms of completion of the work, not in
terms of the number of time spent in the completion of work.8

In sum, the existence of employment relationship between the


parties is determined by applying the "four-fold" test;

Pakyaw workers are considered employees for as long as their


employers exercise control over them however, the fourth
element of control or supervision is wanting in this case. It is
worthy to note that it is Rodel who will decide what the menus
to be sold in a day are. Afterwhich, he is allowed to prepare his
own product to be sold in the premises also. Thus, this negates
the existence of employer-employee relationship.

II.

COMPLAINANTS WERE NOT ILLEGALLY DISMISSED THUS


THEY ARE NOT ENTITLED TO SEPARATION PAY

The Court is not unmindful of the rule in labor cases that the
employer has the burden of proving that the termination was
for a valid or authorized cause. However, it is likewise
incumbent upon the employees that they should first establish
by competent evidence the fact of their dismissal from

7 G.R. No. 195466 , July 2, 2014


8 I C.A. Azucena, Jr., The Labor Code, 186 (Ed. 8, 2013).

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employment.9 As an allegation is not evidence, it is elementary
that a party alleging a critical fact must support his allegation
with substantial evidence.10 It was also stressed that the
evidence to prove the fact of dismissal must be clear, positive
and convincing.11

In the present case, the facts and the evidence do not establish
a prima facie case that complainants were dismissed from
employment. Aside from their mere assertion, complainants
failed to adduce corroborative and competent evidence to
substantiate their conclusion that they were dismissed from
employment. Therefore, in the absence of any showing of an
overt or positive act proving that respondent had dismissed
complainants, the latters’ claim of illegal dismissal cannot be
sustained as the same would be self-serving, conjectural and of
no probative value.

Considering but not granting that there exists employer


employee relationship, there still no illegal dismissal in this
case.

As defined under established jurisprudence, abandonment is


the deliberate and unjustified refusal of an employee to resume
his employment.12 It is a form of neglect of duty, hence, a just
cause for termination of employment by the employer. For a
valid finding of abandonment, these two factors should be
present: (1) the failure to report for work or absence without
valid or justifiable reason; and (2) a clear intention to severe
employer-employee relationship, with the second as the more
determinative factor which is manifested by overt acts from
which it may be deduced that the employee has no more
intention to work.13 The intent to discontinue the employment
must be shown by clear proof that it was deliberate and
unjustified.14

9 Noblejas v. Italian Maritime Academy Phils., Inc., et al., supra note 1


10 Tan Brothers Corporation of Basilan City v. Escudero, G.R. No. 188711, July 8, 2013,
700 SCRA 583, 593.
11 Exodus International Construction Corporation, et al. v. Biscocho, et al., 659 Phil. 142,

155 (2011).
12 orever Security & General Services v. Flores, G.R. No. 147961, September 7, 2007, 532

SCRA 454, 468; Nueva Ecija Electric Cooperative, (NEECO) II v. National Labor Relations
Commission, G.R. No. 157603, June 23, 2005, 461 SCRA 169, 182.
13 Camua, Jr. v. National Labor Relations Commission, G.R. No. 158731, January 25,

2007, 512 SCRA 677, 682.


14 E.G. & I. Construction v. Sato, G.R. No. 182070, February 16, 2011.

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In this case, the two elements are present. The Complainants
abandoned their work. Complainant Rodel Salvador even lied to
the respondent when he said he was going home to Apparri but
in truth and in fact he planned to go to MCC Carwash and
Lounge for employment. This is a clear manifestation that the
Complainant Rodel Salvador’s act from which it may be deduced
that he has no more intention to work. He did not report for
work without justifiable reasons. In fact, what they did was
prejudicial on the part of the Respondent especially to his
business.

As to the complainant Jeralyn Tolentino, there was no illegal


dismissal as to her considering that she voluntarily asked the
Respondent to transfer to MCC Carwash and Lounge because
she knew from the start that Rodel will be going there and there
was a plan between her and Rodel to transfer in MCC Carwash
and Lounge.

In this case complainants are not illegally dismissed therefore


they are not entitled to separation pay.

III.

THE COMPLAINANTS ARE NOT COVERED UNDER THE


COMPULSARY ENROLLMENT UNDER SSS, PAG IBIG FUND
AND PHILHEALTH AS MEMBER

The mandatory coverage under the SSS Law (Republic Act No.
1161, as amended by PD 1202 and PD 1636) is premised on the
existence of an employer-employee relationship, and Section
8(d) defines an employee as any person who performs services
for an employer in which either or both mental and physical
efforts are used and who receives compensation for such
services where there is an employer-employee relationship. The
essential elements of an employer-employee relationship are: (a)
the selection and engagement of the employee; (b) the payment
of wages; (c) the power of dismissal; and (d) the power of control
with regard to the means and methods by which the work is to
be accomplished, with the power of control being the most
determinative factor.15 (Emphasis supplied)

15(Filipinas Broadcasting Network, Inc. v. NLRC, 287 SCRA 348 (1998); Cabalan Pastulan
Negrito Labor Association v. NLRC, 241 SCRA 643 (1995).)

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In this case, based on the foregoing facts and arguments the
complainants are not covered under mandatory coverage under
the SSS Law, Pagibig Fund and Philhealth, as the employer -
employee relationship is wanting in this case.

PRAYER

WHEREFORE, premises considered, it is most respectfully


prayed of this Honorable Office to DISMISS the complaint for
LACK OF MERIT.

Other just and equitable reliefs under the circumstances


are also prayed for.

Tuguegarao City, Cagayan. 16 April 2018.

MICHEL O. MACARUBBO
Affiant

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Republic of the Philippines )
Tuguegarao City, Cagayan ) S.S.
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VERIFICATION

I, MICHEL O. MACARUBBO, resident of #21 A Pengue


Ruyu, Tuguegarao City after having been duly sworn to in
accordance with law, hereby depose and say THAT:

1. I am the Respondent in the above-entitled case;

2. I have caused the preparation of the foregoing Position


Paper;

3. I have read and understood the contents thereof and state


that they are true and correct of my own personal
knowledge and are based on authentic records and
documents in my possession;

IN WITNESS WHEREOF, I hereto set my hand this


__________________________ at Tuguegarao City, Cagayan,
Philippines.

MICHEL O. MACARUBBO
Affiant

SUBSCRIBED AND SWORN to before me this


________________________ at Tuguegarao City, Cagayan,
Philippines, affiant exhibiting to me his Identification Card, the
number written below her name, as proof of his identity.

Doc. No. ______;


Page No. ______;
Book No. ______;
Series of 2018.

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