Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region, Quezon City

RICARDO CUREG TALAUE

Complainant,

-versus- NLRC NCR CASE NO. 04-04799-14

Hon. Vivian Magsino-Gonzales

OCTO TRANSPORT/ PHILIP G. CARO

AND EDILBERTO CARO,
Respondents.
x---------------------------------------------------------x

REPLY
COMPLAINANT, through counsel, unto the Honorable Office, most
respectfully avers as follows:

In their Position Paper, respondents alleged that sometime in “March

2014”, their “service contract” with “Purefoods” was terminated in view of the
failure of the said respondents to obtain a LTFRB franchise. Accordingly,
complainant was placed in “floating status until the matter was resolved.”

Such bare allegations deserve scant consideration. First, where is the

proof that respondents’ contract with Purefood was terminated? NONE. It is
elementary that “Allegations are NOT PROOF and it behooved upon (the
respondents) to substantiate the same.” (ROLANDO ANGELES VS. POLYTEX
DESIGN, INC. G.R. No. 157673, October 15, 2007)

Second, as categorically admitted by the respondents, complainant was

placed in “floating status” sometime in “March 2014.” It is now October 2014.
Assuming for the sake of argument that the complainant can be validly placed in
floating status, MORE THAN SIX MONTHS have passed and yet the respondents
have not required the complainant to report for work. From the admissions of the
respondents themselves, complainant is already considered CONSTRUCTIVELY
DISMISSED. (see PIDO vs.NLRC (G.R. No. 169812, February 23, 2007)

Judicial admissions made by parties in the pleadings, or in the course of

the trial or other proceedings in the same case are conclusive and so does not
require further evidence to prove them. These admissions CANNOT be
contradicted unless previously shown to have been made through palpable
mistake or that no such admission was made. (Damasco v. NLRC, 400 Phil. 568,
586 (2000), citing Philippine American General Insurance Inc. v. Sweet Lines, Inc.,
G.R. No. 87434, August 5, 1992, 212 SCRA 194).

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 Finally, it is undisputed that the complainant is a REGULAR EMPLOYEE of
the respondents. For almost a DECADE, complainant has faithfully and diligently
worked for the respondents as a professional TRUCK DRIVER until his unjust
termination on March 2014. Respondent firm, on the other hand, is a company
engaged in the business of delivering various goods by trucks throughout Luzon. .
Being a regular employee, complainant is therefore entitled to SECURITY OF
TENURE as enshrined in the Constitution and protected by law. As provided
under Article 279 of the Labor Code:

Art. 279. Security of Tenure. In cases of regular employment, the

employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title. x x x.

The fundamental guarantee of security of tenure and due process dictates

that no worker shall be dismissed EXCEPT for a just and authorized cause
provided by law and after due process is observed. (see Cosep v. National Labor
Relations Commission, 353 Phil. 148, 157 (1998); Archbuild Masters and
Construction, Inc. v. NLRC, 321 Phil. 869, 877 (1995).

As such, there is absolutely no basis to place the complainant in “floating

status” in view of the nature of work of the complainant. His work is not even
remotely akin to a security guard who could be placed in floating status under
exceptional circumstances for a period of NOT more than six months.

Be that as it may, there is no truth to respondents’ bare allegations that the

complainant was placed in “floating status” allegedly due to the termination of their
contract with Purefoods. This is a fabrication. The REAL REASON why the
complainant was dismissed from work was his FILING of a complaint against the
respondents for UNDERPAYMENT of wages with the NLRC-SENA. Immediately
upon receiving the summons from the SENA, complainant was dismissed from
work. As narrated by the complainant:

Kaya noong March 17, 2014, napilitan na po akong magfile ng

reklamo sa NLRC. Nang mabigayan sila ng subpoena para sa SENA
hearing, hindi na nila ako binigyan ng trabaho simula March 22, 2014.
Maraming beses akong nagtanong sa kanila kung bakit wala na akong
byahe o trabaho ngunit wala silang sinabi sa akin na dahilan. Mula noon,
hindi na nila ako pinapasok sa trabaho.

To reiterate, the complainant was only receiving the amount of Php325 per
day (18 hour work schedule) which is way below the minimum wage of Php466.00
per day sans SSS and other benefits. Complainant’s dismissal from employment
without a just or authorized cause and due process is a VIOLATION of his right to
security of tenure. NO proper notice to explain was ever given to him; NO due
process was afforded to him; and NO proper notice of termination was given to
him, in complete DISREGARD of the law.

Finally, with regard to respondents’ BARE claim that the complainant was
paid “in accordance with law”, suffice is to say it is already well settled in this

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jurisdiction that he who alleges payment has the burden of proving the same to
which the respondents FAILED to do. As ruled by the Supreme Court:

We have consistently held that as a rule, one who pleads payment

has the burden of proving it. Even when the plaintiff alleges non-payment,
still the general rule is that the burden rests on the defendant to prove
payment, rather than on the plaintiff to prove non-payment. The debtor has
the burden of showing with legal certainty that the obligation has been
discharged by payment. xxx xxx xxx

In the instant case, the burden of proving payment of the monetary

claims rests on petitioner, being the employer of respondents. This is
because the pertinent personnel files, payrolls, records, remittances and
other similar documents that would show that the claims have been paid
are not in the possession of the worker but in the custody and absolute
control of the employer. Sadly, the petitioner failed to do so. (Saborella vs.
Suarez G.R. No. 151227, July 14, 2008)

In closing, time and again, the Supreme Court has invariably held that in
termination cases, the burden of proving that the dismissal of an employee was
for a just cause rests on the employer and his failure to do so would result in a
finding that the dismissal is unjustified. THE RIGHT OF AN EMPLOYEE TO
SECURITY OF TENURE IS PROTECTED BY THE CONSTITUTION WHICH
MUST BE RESPECTED unless a just cause exists for the termination of
employment. The determination of the existence and sufficiency of a just cause
must be exercised with fairness and in good faith and after observing due
process." (FIL-PRIDE SHIPPING CO. vs. NLRC, G.R. No. 97068, March 5, 1993)

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Office to render judgment in favor of the complainant and against the
respondents as stated in its complaint and position paper.

Quezon City, October 7, 2014.

ATTY. PEARLITO B. CAMPANILLA

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