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Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

GILMAR ALVAREZ TASICO et. al

Complainant/s,

-versus- NLRC Case 09-15460-18

(Hon. LA AGATHA ANN L. DAQUIGAN)

PRIORITY SECURITY AGENCY, INC./

MICHAEL IRVIN TAN
Respondents,
x---------------------------- x

COMPLAINANT’S POSITION PAPER

COMES NOW, GILMAR ALVAREZ TASICO, by counsel,
respectfully submits this Position Paper to the Honorable Labor Arbiter, and
avers the following:

PREFATORY STATEMENT
Employers enjoy management prerogatives to regulate, according to
their own discretion and judgment, all aspects of employment including lay-
offs, discipline and dismissal. It does not mean, however, that they have
ultimate free rein over their employees. The prerogatives are limited by
special laws like the Labor Code and other laws enacted by Congress.

MANIFESTATION

The undersigned counsel respectfully manifests that among the

complainants only Gilmar Alvarez Tasico will pursue the case against the
respondent Priority Security Agency.

THE PARTIES

1. Respondents Priority Security Agency, Inc., [for brevity

‘PRIORITY’] is a security agency duly organized and existing and by virtue
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of the laws of the Republic of the Philippines. Individual Respondent

Michael Irvin Tan is impleaded in his capacity as owner/ president
respectively. All can be served with summons, notices and other legal
processes of this Honorable Office at their principal office address located at
319-A, P. Tuazon Cor Kalantiaw Brgy. Bagumbahay Quezon City.

2. Respondents hired the Complainant as one of their Security Guards

since August 28, 2016 until his last day of work on September 25, 2018. He
can be served with summons, notices and other legal processes of this
Honorable Office at his counsel’s office address at 10 Goldland Mansions,
5th Avenue, Cubao, Quezon City.

STATEMENT OF THE CASE

3. This is a complaint for underpayment of salaries/wages, under

payment of overtime, holiday pay, holiday premium, service incentive leave,
night shift differential, Moral and Exemplary Damages, Attorney’s Fees.

STATEMENT OF THE FACTS

4. Complainant was hired by respondents last August 29, 2016 and

resigned on September 25, 2018. He works from Monday to Sunday. He was
paid by the respondents the amount of Three Hundred Fifty Five Pesos (P
355.00) per day.

5. Complainant works more than eight (8) hours a day including

holidays and Sundays. He also worked on a night shift and rest days.
However, he did not receive the correct compensation for overtime work
holiday pay, and night differentials among others.

9. During the period of his employment, complainant was deducted a

CASH BOND every payroll period, that is every 15th and 30th of the month,
in the amount of Two Hundred Fifty Pesos (P250.00) per payroll period.

10. Since reimbursement of cash bonds are given immediately upon

the resignation of the employee. Complainant asked for its reimbursement
but only promises were given to him. To date, nothing was received by the
complainant.

11. Thus, complainant sought assistance from the SEnA. However,

conciliation failed, thus, he filed a full-blown labor complaint at the NLRC
Arbitration Branch.

12. However, during the mandatory conferences at the NLRC, the

parties also failed to settle. Thus, they were directed to submit their
respective position papers.
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ISSUES

i.
Is the complainant a regular employee
of the respondents?

ii.
Is the complainant entitled to all of his monetary claims
and other benefits including moral and exemplary
damages and attorney’s fees?

ARGUMENTS AND DISCUSSIONS

The following shall be discussed in seriatim.

I. COMPLAINANT IS A REGULAR
EMPLOYEE OF RESPONDENTS.
------------------------------------------

15. In a long line of decisions, the Supreme Court established the

standards to determine employer-employee relationship. In CHARLIE JAO
versus BCC PRODUCTS SALES INC. and TERRANCE TY, G.R. No.
163700, April 18, 2012, the High Court (citing Abante, Jr. v. Lamadrid
Bearing & Parts Corp., G.R. No. 159890, May 28, 2004, 430 SCRA 368,
379 ) held, to wit:

[M]oreover, in determining the presence or absence of an

employer-employee relationship, the Court has consistently
looked for the following incidents, to wit: (a) the selection and
engagement of the employee; (b) the payment of wages; (c) the
power of dismissal; and (d) the employer’s power to control the
employee on the means and methods by which the work is
accomplished. The last element, the so-called control test, is the
most important element.

16. Applying these standards, one finds that the complainant is a

regular employee of respondent Priority Security Agency, Inc.

SELECTION AND ENGAGEMENT OF THE EMPLOYEE

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17. The Complainant was selected and hired by the respondents as

Security Guard. Attached hereto is his Duty Detail Order 1 and marked as
Annex “A” to confirm his employment by the respondents.

PAYMENT OF WAGES

18. Complainant received salaries from respondents. In this

jurisdiction, it is the Respondents’ burden to prove that the complainant is
under the payroll of the company. Submitted hereto are his pay slips 2 issued
by the respondent company and marked as “Annex B”.
SUPERVISION AND CONTROL

19. As to the methods and means of accomplishing his tasks,

complainant knew he was under the control of the respondents. To show
proofs of supervision, complainant received the Duty Detail Oder that
provided information as to his posting and schedule.

20. In addition to the above standards, the following also proved the
regular employment status of the complainant, to wit:

DOING ACTIVITIES THAT ARE ESSENTIAL, NECESSARY

AND DIRECTLY RELATED TO THE PRINCIPAL BUSINESS

21. The principal business of the respondent is security agency. The

need for security guard like the complainant is obvious. The activities done
by complainants, ensuring the security of the area wherein he supposed to
duty is necessary and directly related to the needs of the said security
agency. Respondents obviously hired the complainant as regular employee
doing these necessary and essential activities for their trade.

LENGTH OF SERVICE AS ANOTHER TEST TO

DETERMINE REGULARITY OF EMPLOYMENT

22. Article 295 [previously Article 280] of the Labor Code and
Section 5, Rule I, Book VI of the Implementing Rules set that one of the
tests to determine regularity of employment is whether or not the employee
has rendered at least one (1) year of service.

Annex A: Complainants’ Duty Detail Order

2
Annex B: Series of Complainant’s Pay Slips

Annex C : Complainant’s ID
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23. In the case at bar, the complainant has worked with respondent
company for two [2] years and one [1] month.

II. THE COMPLAINANT IS ENTITLED TO ALL

BENEFITS AND MONETARY CLAIMS
ACCRUING TO THEM AS A REGULAR
EMPLOYEE, ATTORNEY’S FEES, MORAL
AND EXEMPLARY DAMAGES, PENALTIES
AND OTHER CIVIL AWARDS INCLUDING
COST OF LITIGATIONS

24. As a regular employee entitled to the rights of a regular worker,

complainant deserved the following:

SALARY AND OTHER BENEFITS DIFFERENTIALS

25. Complainant is entitled to the correct statutory minimum wage.

His basic daily pay of Php 355.00 is way below the mandatory minimum
wage. Further, the Department Oder No 150-16 “Revised Guidelines the
Employment and Working Conditions of Security Guards and other Private
Security Personnel in the Private Security Industry” provides, to wit:

Section 6. Rights of Security Guards and Other Private

Security Personnel – “ All security guards and other private
security personnel, whether deployed or assigned as reliever,
seasonal, week- ender, or temporary, shall be entitled to all the
rights and privileges as provided for in Labor Code.”
Section 7. Terms and Conditions of Employment
7.1. xxx
Section 7.5 Statutory Benefits—“Security guards
and other private security personnel are entitled to not
less than the benefits depending on the working hours,
work shift and work days and other analogous conditions,
which benefits should be included in the cost distribution
in the Service Agreement “

7.5 a.) Basic Salary for all actual workdays and

for the twelve (12) regular holidays (as holiday)
which must not be lower than the minimum wage
rates described in Subjection 7.3, to be computed
by using the factors recommended herein.
Whenever work is rendered on a regular holiday,
an additional pay of one hundred percent (100%)
of the minimum wage should be paid;
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xxx
7.5 c.) Premium pay of thirty percent (30%) of
the daily rate of work on special days or on rest
days, which is increased to fifty percent (50%)
whenever work is perform coinciding the rest
days and special days;
xxx
7.5 e.) Night shift differential equivalent to ten
percent (10%) of the regular hourly rate for work
rendered between 10:00 pm and 6:00 am of the
following day; 7.5 l.) 13th month pay which is one
–twelfth (1/12) of the total basic salary earned
within a calendar year;
xxx
EXEMPLARY AND MORAL DAMAGES

26. Considering that their act of non- payment of complainant’s

overtime, holiday pay, night shift differential and underpayment of
salary/wages were tainted with bad faith, acts offensive to labor and done in
a manner contrary to morals, good customs, or public policies, complainants
are entitled to moral and exemplary damages for correction as well as to give
example to others who are similarly situated with respondents acting in
wanton or oppressive manner. Conclusively, complainants are entitled to
moral and exemplary damages.

27. The Supreme Court, in Kierulf, vs. Court of Appeals, GR Nos.

99301 and 99343, March 13, 1997, held that moral damages are meant to
compensate the claimant for any physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation and similar injuries unjustly caused. Although incapable
of pecuniary estimation, the amount must somehow be proportional to and in
approximation of the suffering inflicted.

28. Considering the bad faith they committed when they deliberately
failed to give the correct mandated salaries of the complainant, respondents
are liable for moral land exemplary damages.

ATTORNEY’S FEES, COST OF SUIT

AND OTHER LITIGATION EXPENSES
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29. Being forced to litigate in order to protect their rights and

interests, complainants engaged the services of counsel on contingent basis
for the total amount to be awarded in this case.

30. Likewise, complainant is entitled to reimbursements of other costs

of suit and litigation expenses incurred when this complaint was filed.

ALL DOUBTS ARE RESOLVED IN FAVOR

OF LABOR OR OF THE WORKINGMAN

31. It is a basic rule that in carrying out and interpreting the

provisions of the Labor Code and its implementing rules, the workingman’s
welfare should be the primordial and paramount consideration. The
interpretation herein handed down gives meaning and substance to the
liberal and compassionate spirit of the law enunciated in Article 4 of the
Labor Code that all doubts in the implementation and interpretation of the
provisions of the Labor Code including its Implementing Rules and
Regulations shall be resolved in favor of labor as held by the Supreme Court
in Ismael Samson v, NLRC et al., GR. No 113166, February 1, 1996.

32. Verily, complainant is entitled to all of her monetary claims

against respondents.

RESERVATIONS

33. Complainant reserves the right to submit such other documents

and evidence as may be necessary to support her factual and legal
allegations.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that the

respondents, jointly and severally, be found guilty and liable for their illegal
acts against the complainant with the concomitant imposition of civil
awards, penalties and damages against the said respondents, and more
specifically, to the payment of the following:

1. Cash Bond Reimbursement;

2. Overtime, Holiday, Service Incentive leave, Night Shift

Differential;

3. Correct minimum payment per day;

3. Moral damages of Php 100,000 and exemplary damages also at

Php 100,000;

4. Attorney’s Fees at 10% of all recoverable awards, and;

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5. Cost of Suit and other Litigation Expenses.

Finally, complainant respectfully prays for such and other reliefs

as may be deemed just and equitable in the premises.

Quezon City, January 28, 2019.

JONNEL BAYNOSA ALIMAYDA

PHILHEALTH ID No. 12-025493231-6
Complainant

LOMABAO CARILLO PASANA

AND ASSOCIATES LAW FIRM
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ATTY. DOROTEO MIGUEL S. CARRILLO

Collaborating Counsel for the Complainant
Roll of Attorney No. 33835
PTR No. 5926389, Quezon City, 01-3-19
IBP OR No. 060296, Pasig City, 01-3-19
MCLE Compliance No. V-00025299/6-28-17

Copy Furnished :

LAKAY LBT SECURITY AGENCY

MR. LORENZO B. TALLEDO
Blk52 Lot34 Phase2 Pinagsama Village
Taguig

VERIFICATION AND CERTIFICATION AGAINST

NON- FORUM SHOPPING

I , Gilmar Alvarez Tasico , of legal age, Filipino after having been duly
sworn to in accordance with law, do hereby depose and state THAT :

1. I the complainant in the above – entitled case ;

2. I have :
a. Caused this Position Paper to be prepared;
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b. Read its contents and affirm that it is true and correct to my personal
knowledge and/or based on authentic records;
c. Not commenced any other action or proceeding involving the same in
the Supreme Court, Court of Appeals, or the different divisions
thereof, nor such action or proceedings is pending before any court
involving the same parties and the same issue, and that ;
3. Should such action or proceeding hereafter come to my knowledge, I
undertake to inform this Honorable Office of the existence thereof
within five (5) days.

IN WITNESS WHEREOF, I have hereunto set my hands this 28 th

day of January 2018, Quezon City, Philippines.

GILMAR ALVAREZ TASICO

(Competent Unified Multi- Purpose ID No. 0111-7519031-0)
Complainant

SUBSCRIBED AND SWORN TO before me this 28th day of January

2018 in Quezon City, affiant exhibited to me his competent Government ID
as shown above.

Doc. No. ______

Page No.______
Book No. ______
Series of 2018