REPUBLIC OF THE PHILIPPINES

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
PPSTA Bldg. Banawe, Quezon City

___________________________,
et. al.,
Complainants,

- versus - NLRC-NCR Case No .

____________
________________________________
____________________,
Respondents’.
x---------------------------------------------x

RESPONDENTS’
POSITION PAPER

RESPONDENT, _________________________, through the

undersigned counsel, and unto this Honorable Office, by way of the instant
Position Paper, most respectfully avers: That—

I. PREFATORY STATEMENT

1.1 The policy of social justice is not intended to countenance

wrongdoing, simply because it is committed by the underprivileged. At
best, it may mitigate the penalty of every humane society but only when
the recipient is not a rascal claiming an undeserved privilege. Social justice
cannot be permitted to be refuge of scoundrels any more than can equity
be an impediment to the punishment of the guilty. Those who invoked
social justice may do so only if their hands are clean and their motives
blameless and not simply because they happen to be poor. This great
policy of our Constitution is not meant for the protection of those who have
proved they are not worthy of it, like the workers who have tainted the
cause of labor with blemishes of their own character. (Justice Isagani A.
Cruz, PLDT vs. NLRC, No. L-806009, 23 August 1988, as cited in
the Labor Law with Comments and Cases Volume II, 1999 Edition,
page 521 by C.A.Azucena).

1.2 The law in protecting the rights of employees authorizes neither

oppression nor self-destruction of the employer. It should be made clear
that when the law tilts the scale of justice in favor of labor, is but
recognition of the inherent economic inequality between labor and
management. The intent is balance the scale of justice; to put the two
parties on relatively equal positions. There maybe cases where the
circumstance warrant favoring labor over the interests of the management
but never should the scale of justice be so tilted if the result is an injustice
to the employer. Justicianemininegandaest(Justice is to denied to
none). (Justice Teodore R. Padilla, Pilippine Geothermal, Inc. vs.
NLRC, et al., G.R. No. 105370, September 8, 1994, as cited in the
Labor Law with Comments and Cases Volume II, 1999 Edition,
page 521 by C.A.Azucena).

1.3 The Secretary of Labor is duly mandated to equally protect and

respect not only the laborer or worker’s side but also the management
and/or employer’s side. The law, in protecting the rights of the laborer,
authorizes neither oppression nor self-destruction of the employer.
(Colgate Palmolive Philippines, Inc. vs. Ople, G.R. No. 73681, 30
June 1988.

1.4 Consistent with the policy of the State to bridge the gap
between the underprivileged workingman and the more affluent employers,
the balance in favor of the workingman should be tilted without being blind
to the concomitant right of the employer to the protection of his property.
(Gelmart Industries Phil., Inc. vs. NLRC, G.R. No. 55668, 10
August 1989).

1.5 The instant case is an acid test, so to speak, of the

constitutional as well as to the statutory shield given not only to an
employee but to an employer against unreasonable and unlawful claims of
the former against the latter.The factual setting in the case at bar will bring
forth the applicability of the above mentioned clauses of the Constitution,
statute and jurisprudence.

1.6 In fine, the bottom line question of this Position Paper is: Do
the complainants’ has a cause of action in filing the instant case for Illegal
Dismissal (constructive), Underpayment of Salary/Wages, Underpayment of
Overtime Pay, Underpayment of ECOLA, Non-Payment pf Holiday Pay, Non-
Payment of 13th Month Pay, Non-Payment of Other Benefits, No Double Pay
of Holidays, Moral and Exemplary Damages and Attorney’s Fees. Should
the facts and evidences of the case will prove that herein complainant was
not illegally dismissed and not entitled to her claims, then the instant case
should be DISMISSED for utter lack of merit.

II. STATEMENT OF THE CASE

2.0 The instant case stemmed from the complaint filed by

________________________ (Complainants’ for brevity) against
____________________________________________________
___________, (Respondents’, for brevity) for Illegal Dismissal
(constructive), Underpayment of Salary/Wages, Underpayment of Overtime
Pay, Underpayment of ECOLA, Non-Payment pf Holiday Pay, Non-Payment
of 13th Month Pay, Non-Payment of Other Benefits, No Double Pay of
Holidays.

III. THE PARTIES

3.0 Complainant ________________________ applied and was

employed by _________________________ in several capacity, and a
resident of _______________________________, where she may be
served with notices, orders and other processes of this Honorable Office at
the above mentioned addressed.

3.1 Complainant ______________ was formerly employed by

___________________ as a saleslady, and a resident of
_______________________________ where she may be served with
notices, orders and other processes of this Honorable Office at the above
mentioned addressed.

3.2 Complainant ______________ was formerly employed by

respondents as a saleslady, and a resident of
_______________________________ where she may be served with
notices, orders and other processes of this Honorable Office at the above
mentioned addressed.

3.3 Respondent, is a Corporationduly registered in accordance with

the laws of the Republic of the Philippines with business address at
_________________________________________, where it can be served
with notices, orders and other processes of this Honorable Office through
the undersigned counsel at __________________________.

3.4 Respondent is a sole proprietorship business entity and duly

registered in accordance with the laws of the Republic of the Philippines
and with business address at ________________________, where it can
be served with notices, orders and other processes of this Honorable
Office.

3.5 Respondent _______________________ is the registered

owner of _____________________________________ with last known
address at ___________________________________________, where
she can be served with notices, orders and other processes of this
Honorable Office.

IV. STATEMENT OF FACTS

4.0 Complainant ___________________ was hired by
__________________________ sometimes in _______________ and was
assigned in different capacity until she became one of the store supervisor.
While complainant _____________ and ______________ was hired by
respondent sometimes in _______ and ________, respectively, as sales
lady.

4.1 With some turn of events in the operation of respondent business

activities that turn into business losses, its owner decided to sell the whole
operation of its business activity located
__________________________________. Thus, in a Deed of Absolute
Sale dated January 10, 2019, the said sale was consummated by the
parties. Copy of the said Deed of Absolute Sale is hereto attached as
Annex “A”, and be made an integral part hereof.

4.2 Even before the consummation of the said sale, all employees of the
WAWAWEI was informed about the said impending sale and that its
operation will be transferred to another business entity, and that all
concerned employees was informed that the continuance of their
employment will depend on the new owner and that they should comply as
to what requirements being asked from them.

4.3 True enough, upon the assumption of operation of the business

activity of _______________________, it asked all employees of
___________________ to re-apply, for accordingly, their employment
status is not part of the transaction that have transpired between the
parties.

4.4 Complainants, instead of acceding to the directives of

__________________management, it decided to no longer report for work
sometimes in January of 2019. However, to respondent surprise, it
received a summon from Department of Labor and Employment, Quezon
Avenue office for a mandatory conference. During the mandatory
conference, to respondent surprise, complainants alleged that they were
supposedly underpaid by ____________________________, who by that
time, have just started the operation of the said business that was owned
previously by ___________________________.

4.5 Complainants were asked if what need be done to settle the issue,
complainants insist that they should be paid the amount representing their
underpayment. For complainant __________________e, she made a
computation in the amount of P400,000.00, complainants
_________________ and __________________, derived in the amount of
P100,000.00, despite just merely employed by respondent barely for 3
months.
4.6 Considering the claim being asked by the complainants is not the
obligation of __________________ and too much, parties were not able to
settle the issue.

4.7 Upon the recommendation of DOLE, the case was elevated to

National Labor Relations Commissions. Preliminary conference was set, and
again, parties did not come up with any settlement.

4.8 Thus, this Position Paper.

V. ISSUES

A. WHETHER OR NOT COMPLAINANTSWERE

CONSTRUCTIVELY DISMISSED FROM THEIR WORK.

B. WHETHER OR NOT COMPLAINANTSARE ENTITLED TO

THEIR MONEY CLAIMS.

C. WHETHER OR NOT COMPLAINANTS ARE ENTITLED TO THE

PAYMENT OF MORAL DAMAGES, EXEMPLARY DAMAGES
AND ATTORNEYS FEES.

VI. ARGUMENTS AND DISCUSSIONS

A. WHETHER OR NOT COMPLAINANTSWERE

CONSTRUCTIVELY DISMISSED FROM THEIR WORK.

COMPLAINANTS WERE NOT

CONSTRUCTIVELY
DISMISSED.

6.0 Constructive dismissal exists when the resignation on the part of the
employee was involuntary due to the harsh, hostile and unfavorable
conditions set by the employer. The test for constructive dismissal is
whether a reasonable person in the employee’s position would feel
compelled to give up his employment under the prevailing circumstances.
With the decision of the private respondent corporation to transfer and to
thereafter placed [sic] her on floating status, petitioner felt that she was
being discriminated and this perception compelled her to resign. It is clear
from her resignation letter that petitioner felt oppressed by the situation
created by the private respondent corporation, and this forced her to
surrender her position. (ICT MARKETING SERVICES, INC. (now
known as SYKES MARKETING SERVICES, INC. vs. MARIPHIL L.
SALES, G.R. No. 202090, September 9, 2015).

6.1 “Constructive dismissal exists where there is cessation of work

because “continued employment is rendered impossible, unreasonable or
unlikely, as an offer involving a demotion in rank or a diminution in pay”
and other benefits. Aptly called a dismissal in disguise or an act amounting
to dismissal but made to appear as if it were not, constructive dismissal
may, likewise, exist if an act of clear discrimination, insensibility, or disdain
by an employer becomes so unbearable on the part of the employee that
it could foreclose any choice by him except to forego his continued
employment. In cases of a transfer of an employee, the rule is settled that
the employer is charged with the burden of proving that its conduct and
action are for valid and legitimate grounds such as genuine business
necessity and that the transfer is not unreasonable, inconvenient or
prejudicial to the employee. If the employer cannot overcome this burden
of proof, the employee’s transfer shall be tantamount to unlawful
constructive dismissal.”(Morales vsHarbour Center Port Terminal,
Inc. (G.R. No. 174208, January 25, 2012).

6.2 In the present case, it is very hard to fathom how complainant

will call their separation from work as constructive dismissal. They should
bear in mind that it was through their own doing the cause of their
separation from work. At the onset, it must be emphasized that
respondent _______________ have no relation with the complainants. As
stated, the moment that the sale of the business entity by _____________
to _________________, they were already informed to re-apply and
comply with the requirements of _______________, to which
complainants did not assent. Instead, they filed a case against
___________________ for reason that they were underpaid.

6.3 Again, in order that there is constructive dismissal, the

following elements must be present, to wit:

Constructive dismissal exists where there is cessation of work

because "continued employment is rendered impossible,
unreasonable or unlikely, as an offer involving a demotion in
rank or a diminution in pay" and other benefits. Aptly called a
dismissal in disguise or an act amounting to dismissal but made
to appear as if it were not, constructive dismissal may, likewise,
exist if an actof clear discrimination, insensibility, or disdain by
an employer becomes so unbearable on the part of the
employee that it could foreclose any choice by him except to
forego his continued employment. In cases of a transfer of an
employee, the rule is settled that the employer is charged with
the burden of proving that its conduct and action are for valid
 and legitimate grounds such as genuine business necessity and
that the transfer is not unreasonable, inconvenient or
prejudicial to the employee. If the employer cannot overcome
this burden of proof, the employee’s transfer shall be
tantamount to unlawful constructive dismissal.

6.4 None of the elements stated therein is attendant to the case of

the complainant that will warrant and justify their claim of constructive
dismissal. Again, their own act of not re-applying and instead filed a case
against respondent _______________ do not constitute constructive
dismissal.

COMPLAINANTS IS NOT AN
EMPLOYEE OF THE
RESPONDENT WAWAWIN

6.5 As aforestated, complainants in anyway do not have any cause

of action against respondent ______________for simple reason that they
were not its employees. As stated, complainants were hired and employed
by ______________ and not ________________. Both entity are not the
same, the two are definitely different entity that have its own personality.
As evidence by the Deed of Absolute Sale executed by both parties, the
business of _______________ was mere assumed by respondent
_________________, thus, being a different entity, it has its own set of
rule that should be followed. Attached herewith is the DTI registration of
___________________________ and the SEC Registration of
____________________________ as Annexes “B” and “C”, and be
made as integral parts hereof.

6.6 By reason of the said argument and based on evidence

adduced, respondent ______________ is not liable to all money claims of
the complainants. Complainants new of the fact that ___________ is a
different entity to that of ____________, thus, they could not claim blindly
that the said business entity is one and the same. Again, evidence will
prove that they are separate. _____________ merely came into picture
when it purchase the business of respondent _______________.

6.7 Moreover, aside from the self-declaration of the complainants

regarding their relationship with respondent ___________, they were not
able to adduce any documents that would tell that indeed they were an
employee of ______________, mere allegation is not a sufficient proof.

6.8 By reason of the foregoing respondents’ __________,

_____________ could not be held liable to the claims of the complainants.
Assuming that indeed their allegations was true, but the mere fact that
complainants and respondent ______________ have no employer-
employee relationship all, it follows then that they do not have any cause
of action against respondent ______________, ________,
_________________.

6.9 For complainants claim to stand the same must be supported by an

evidence to prove the existence of which, otherwise, their claim must be
dismissed for the same was being unsubstantiated.

6.10 Litany of cases would tell that, the basic rule is that mere allegation
is not evidence and is not equivalent to proof. Charges based on mere
suspicion and speculation likewise cannot be given credence. When the
complainant relies on mere conjectures and suppositions, and fails to
substantiate his allegations, the complaint must be dismissed for lack of
merit. (Agdeppa v. Office of the Ombudsman, supra note 56, at 333
citing De Jesus v. Guerrero III, 614 Phil. 520, 529).

6.11 Also, in the case of De Jesus v. Guerrero III, 614 Phil. 520, 529
(2009), the Honorable Supreme Court stated that, “petitioner has the
duty to prove by substantial evidence the allegations in his
administrative complaint”.

6.12 For truly, aside from the sweeping allegation of the complainants of
their relationship and money claims, there was no evidence shown by them
to prove the existence of employer-employee relationship that will warrant
their claim. Just like in cases decided by the Supreme Court, their case
must likewise be dismissed for lack of cause of action.

COMPLAINANTS ARE NOT

ENTITLED TO THEIR CLAIM
OF MORAL DAMAGES,
EXEMPLARY DAMAGES AND
ATTORNEYS FEES.
________________________

6.13 In the case of Kierulf v. CA, 336 Phil. 414, 432 (1997), the
Honorable Supreme Court stated that for Moral Damages to be awarded,
the party seeking the said award must prove with certainty that the other
party caused him/her culpable action. Thus, moral damages are awarded
to enable the injured party to obtain means, diversions or amusements
that will serve to alleviate the moral suffering he has undergone, by reason
of the defendant's culpable action.
6.14 In prayers for moral damages, however, recovery is more an
exception rather than the rule. Moral damages are not meant to be
punitive but are designed to compensate and alleviate the physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar harm
unjustly caused to a person. To be entitled to such an award, the claimant
must satisfactorily prove that he has suffered damages and that the injury
causing it has sprung from any of the cases listed in Articles 2219 and
2220 of the Civil Code. Moreover, the damages must be shown to be the
proximate result of a wrongful act or omission. The claimant must thus
establish the factual basis of the damages and its causal tie with the acts of
the defendant. (Regala v. Carin, G.R. No. 188715, 6 April 2011, 647
SCRA 419, 426-427).

6.15 Under the foregoing case, complainant were not able to prove with
certainty that indeed respondents _________________did culpable action
against them. For which reason, the said relief should not be awarded to
them.

6.16 In fine, an award of moral damages calls for the presentation of 1)

evidence of besmirched reputation or physical, mental or psychological
suffering sustained by the claimant; 2)a culpable act or omission factually
established; 3) proof that the wrongful act or omission of the defendant is
the proximate cause of the damages sustained by the claimant; and 4) the
proof that the act is predicated on any of the instances expressed or
envisioned by Article 2219 and Article 2220 of the Civil Code.

6.17 Our jurisprudence sets certain conditions when exemplary damages

may be awarded: First, they may be imposed by way of example or
correction only in addition, among others, to compensatory damages, and
cannot be recovered as a matter of right, their determination depending
upon the amount of compensatory damages that may be awarded to the
claimant. Second, the claimant must first establish his right to
moral, temperate, liquidated or compensatory damages. Third, the
wrongful act must be accompanied by bad faith, and the award
would be allowed only if the guilty party acted in a wanton,
fraudulent, reckless, oppressive or malevolent manner. (SANGCO,
Torts and Damages, Vol. II). (Emphasis supplied).

6.18 Clear from the foregoing that complainants were not able to prove
the requirements ask by law so as to entitle them the award of exemplary
damages. Thus, their claim for exemplary damages should fail.

6.19 Further, their claim for attorney’s fees must likewise fail for reason
that complainants have no cause of action against herein respondents.
6.20 By reason of the foregoing, the instant case filed by the complainants
must be dismissed for lack of cause of action.

6.21 Further, attached is the Secretary’s Certificate issued to the

representative of respondent WAWAWIN is hereto attached as Annex “D”.

PRAYER

WHEREFORE, PREMISES CONSIDERED, it is most respectfully

prayed of this Honorable Office to DISMISS the instant case for lack of
merit and lack of cause of action.

OTHER RELIEFS, just and equitable under the premises are likewise
prayed for.

RESPECTFULLY SUBMITTED.

______________ City for Quezon City, May ____, 2019.

______________________
Counsel for the Complainant
_________________
_____________________
By:

__________________

_____________________

Copy furnished:

Complainant
_________________
_________________