Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATION COMMISSION
National Capital Region
Quezon City

CLARIBEL CORTES TABUDLONG,

Complainant,
Case No. NCR-04-05807-13
-versus-

PEAK MANPOWER RESOURCES, ZAHER

ABDULLAH KADOW and/or CRISTINA
EDQUIBAN,
Respondents.
x----------------------------------------------x

MEMORANDUM OF APPEAL

COMES NOW, complainant, CLARIBEL CORTES TABUDLONG,

assisted by the Public Attorney’s Office, through the undersigned counsel and
unto this Honorable Office, by way of appeal, most respectfully moves for this
Honorable Commission for the setting-aside of the Decision issued by the
Honorable Labor Arbiter finding for respondents and humbly posits the
following:

STATEMENT AND NATURE OF THE CASE

1. This is originally a complaint for maltreatment, underpayment of

salaries/wages, damages, attorney’s fee, and other relief.

2. After a series of mandatory conferences, no amicable settlement was

reached between Complainant and Respondents; hence, they were required to
submit their respective position papers. After the submission of their position
papers and appropriate replies thereto, the case was submitted for resolution.

3. On 1 October 2013, a DECISION was issued by Honorable Labor Arbiter

Elias H. Salinas, in favor of Respondents-Appellee and against Complainant-
Appellant, dismissing the case for lack of merit. A copy of the decision is hereto
attached as “ANNEX A”.
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 TIMELINESS OF THE APPEAL

4. Complainant-Appellant received the above-mentioned decision on 18

December 2013. Pursuant to the 2011 NLRC Rules of Procedure, complainant-
appellant has ten (10) days from receipt of the decision within which to file this
appeal. Counting ten (10) days from said date, and considering that the last day
falls on a weekend/holiday, the last day of filing a memorandum of appeal is 2
January 2014. Hence, the filing of this memorandum is within the reglementary
period to file an appeal.

5. Complainant-Appellant is exempt from paying the appeal fees being a

client of the Public Attorney’s Office and pursuant to R.A. 9406.

STATEMENT OF FACTS

6. Respondent Kadow hired Complainant through its local agency,

Respondent Peak Manpower, as a domestic helper for a period of two (2) years.
On December 27, 2010, Complainant left the Philippines and arrived at Khamiz
Muzyath, Saudi Arabia the next day, where she was to assume her duties as a
domestic helper / household service worker under the employ of Respondent
Kadow and his family.

7. During her employment, Complainant faithfully and diligently performed

her duties as a domestic helper despite several maltreatments committed by her
employer. Upon arriving at Saudi, however, she was made to work on-call day in
and day out without regard to her rest periods. Instead of taking care of two
children, she was surprised that she had to take care of five (5) children and all of
the household chores. She was the only household worker and had to do all the
household work and take care of all Kadow’s children, a work-load appropriate
for three persons. She was never reimbursed of her expenses in procuring her
documents as agreed upon in the Philippines and against representations of
Respondents that she will be treated humanely while under Kadow’s employ.

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8. Often times, Kadow and his wife would maltreat Complainant by
slapping or pinching her whenever she would commit a simple mistake or for
trivial matters such as when household supplies run out. She was only allowed
to eat twice everyday. Contrary to her employment contract, Complainant was
not given any rest day or vacation leave, even during times that she was sick. In
fact, she was mostly kept under lock and key and was not allowed to freely leave
the house or communicate with the Philippine Embassy or her relatives. She can
only communicate through messages relayed to Filipino neighbors and a
cellphone which she secretly kept.

9. Complainant was only paid Eight Hundred Riyals (SR 800.00) per month
instead of SR 1,500.00, contrary to the provisions of her Employment Contract for
the whole 24 months of her employment.

10. Because of the inhumane treatment Complainant was receiving and

numerous violations of her employment agreement, she informed Kadow that
she wanted to go back to the Philippines and terminate her contract on March 12,
2011, and also on April 4, 2011 pursuant to the one-month notice in her
employment contract. This was however rejected by Kadow and she was not
allowed to leave. Her passport and travel documents were taken from her and
was not given to her until the expiration of her contract.

11. Complainant tried to seek help by secretly sending text messages to

Respondent Peak Manpower but said pleas only fell on deaf ears. She tried to ask
help from the Philippine Embassy, OWWA, and other agencies through
messages relayed to her husband, but no one helped her. On June or July 2011,
her husband sent electronic mail letters narrating her situation in Saudi Arabia,
based on text messages which Complainant sent to her husband, and seeking
help to whomever could read her letter. This letter was transmitted by her
husband to different government agencies and politicians but her efforts did not
prosper.1

12. Feeling helpless, Complainant lost hope in coming back to the Philippines
anytime soon. To survive, she bore the burden of her work and bad treatment
she was receiving from her employers, as well as the lack of benefits and salary.
She waited until the expiration of her contract, or two long years. Because of the
maltreatment she received from her employer’s, Complianant suffered

1
“Annex F and F-1” of Complainant’s Position Paper.

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physically, mental anguish and fright, numerous sleepless nights, anxiety and
wounded feelings. She was alone and helpless in a foreign land and away from
any assistance from our country. She had to bear her situation for the two-year
duration of her contract.

13. Sometime of December 2012, when Complainant’s employment was about

to expire, she informed Kadow that she would no longer renew her contract and
refused the offer of the latter to renew her contract under a higher salary. This
infuriated Kadow and his wife and she was again scolded and slapped.

14. On February 2013, Complainant was allowed to go home because of the

expiration of her contract. She arrived in the Philippines on February 12, 2013.
Upon arrival, Complainant went to the Commission on Filipino Overseas (CFO)
who in turn referred her to the POEA to file a complaint. Eventually, she was
also referred to the NLRC for filing of a labor case pursuant to the Migrant
Worker’s Act.

GROUNDS FOR THE APPEAL

With due respect, the Honorable Labor Arbiter committed grave

abuse of discretion and serious errors in law and in fact when he
dismissed the complaint on the ground that Complainant failed
to attach evidence of underpayment and for alleged failure to
report her working conditions with the proper government
agency.

ARGUMENTS AND DISCUSSIONS

I. The Honorable Labor Arbiter gravely erred when he dismissed the complaint
because she “failed to present any proof of the alleged underpayment, such as her
payslips.”

15. It is most respectfully submitted that the Honorable Labor Arbiter erred in
dismissing the complaint because of failure of complainant to submit payslips or
proofs of underpayment. No payslip was ever issued by Respondent Kadow and
it would be impossible for Complainant to produce said document because it
was never issued in the first place. Complainant should not be faulted for her
employer’s failure to issue payslips. Otherwise, we would be left in a situation

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where foreign employers would be absolved from paying the just salaries of our
workers simply by not issuing payslips.

16. On the other hand, it is settled jurisprudence that it is incumbent upon the
employer to prove payment of just compensation and benefits because, as most
often than not, employers have the control and custody of all the documents
pertaining to their worker’s employment.

17. In the case of Saberola v. Suarez, et al.2, the Supreme Court held that it is
incumbent upon the employer to prove payment of his employee’s salary and
benefits. In said decision, the Court ruled that:

“As employer, the petitioner has the burden of proving that the
rate of pay given to the respondents is in accordance with the
minimum fixed by the law and that he paid thirteenth month pay,
service incentive leave pay and other monetary claims.

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. 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 the claims have been paid are not in the possession
of the worker but in the custody and absolute control of the
employer.” (Emphasis and underscoring ours)

18. It is also noteworthy that nowhere in Respondent’s position paper and

reply did they deny underpayment. In fact, the main contention of Respondents
in denying liability was that Complainant was a “name hire” of Respondent
Kadow and that Respondent Peak Manpower was only used to process her
deployment abroad. If complainant was paid her full salary, it would have been
easy for Respondent Peak Manpower to ask proof of payment from Respondent
Kadow and it would be in a better position to ask for said documents because it
assumed responsibility when it agreed to be Kadow’s representative in the
Philippines. Being the representative of Kadow in the Philippines, it is the duty
of Respondent to keep in contact with its foreign principal and keep important
documents relative to workers they deploy.

2
G.R. No. 151227, July 14, 2008.

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II. The Honorable Labor Arbiter gravely erred when it dismissed the complaint
because allegedly Complainant did not raise any complaint during her employ
in Saudi Arabia.

19. Complainant could not file a complaint against her employer personally
because she was locked inside Respondent Kadow’s house. She was not allowed
to leave the house by herself, much less file a complaint with the proper agency
in Saudi Arabia. She was only able to communicate with her husband through
text messages by using a cellphone she secretly kept. The Honorable Labor
Arbiter gravely erred when it did not consider the complaints made by
Complainant through e-mail3 with the help of her husband on the ground solely
that there was no proof that it was not received by its addressee. It is proof that
Complainant asked for help and complained of her inhumane working
conditions during her employment with Respondent Kadow. At that time, it was
the only way she could communicate her grievances to the agencies of the
government.

20. The e-mails sent through her husband are proof that she asked for help
with different government offices because of underpayment and inhumane
conditions. Complainant’s failure to file a proper complaint while in Saudi
Arabia was not of her own fault but because she simply could not, given the
harsh situation that she was bearing at that time.

III.The Honorable Labor Arbiter gravely erred when it applied the case of
JONES INTERNATIONAL MANPOWER SERVICES, INC. vs. AGCAOILI-
BARIT4.

21. The Jones Manpower case, cited above, is not on all fours with the instant
case. It has no application with Complainant and Respondents’ case. In the Jones
Manpower case, the Supreme Court reversed the Court of Appeal’s decision and
effectively dismissed the complaint of Barit because of certain facts, which are
not attendant in this case.

22. In the Jones Manpower case, Barit was not locked in the house. Barit had
all the opportunity to file a complaint against her employer for her unpaid salary
3
See “Annex F and F-1” of Complainant’s Position Paper.
4
July 20, 2011, G.R. No. 181919.

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but she did not and she even continued working for her employer for a
considerable time despite underpayment. This is not so in Complainant
Tabudlong’s case. She could not file a complaint even if she wanted to because
her foreign employers prevented it by locking her up. Tabudlong could not leave
her employers because they confiscated her passport and travel documents. She
could not just leave her employer without her travel documents because she will
be arrested for running away. She had no choice but to finish her contract given
the intimidation and prevention made by her foreign employers.

23. Barit left to stay with her boyfriend in Saudi Arabia. It was not so in
Tabudlong’s case as she had nowhere to go except stay with her foreign
employer and finish her contract.

24. Barit extended her contract with her foreign employer for ten more
months despite allegations of underpayment. In the case at bar, Tabudlong no
longer extended her contract because of her underpayment. She immediately
returned to the Philippines where she filed the instant case.

25. In the Jones Manpower case, the agency and the foreign employer
disputed Barit’s claim for underpayment. Letters were submitted to prove full
payment of Barit’s salaries. It is different from the instant case where Respondent
Peak Manpower did not raise full payment of salaries as their defense. In fact,
Respondents’ documents deny that they know Respondent Kadow. No
document was presented to prove full payment. Not even a letter explanation
from the foreign principal.

26. With the above discussion and with due respect, it is clear that the
Honorable Labor Arbiter’s application of the Jones Manpower case is misplaced.
The attending facts and circumstances which prompted the Supreme Court to
dismiss the complaint of Barit is not present in the case of Complainant
Tabudlong. Hence, the doctrines and jurisprudence of said case cannot be
applied to the case of Tabudlong.

PRAYER

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 WHEREFORE, based on the foregoing, COMPLAINANT respectfully
pray that the DECISION dated 1 October 2013 be REVERSED and SET ASIDE.
Complainant further prays that a new Decision/Resolution be rendered in favor
of Complainant and ordering payment of her money claims and for damages.

Such other relief as may be deemed just and equitable under the premises
is likewise prayed for.

Respectfully submitted.

Makati City for Quezon City, 2nd day of January 2014.

PUBLIC ATTORNEY’S OFFICE

NCR-Makati District Office
Counsel for the Complainant
16th Floor, Makati City Hall
Poblacion, Makati City

By:

ATTY. DAVID JULIAN G. PUZON

Public Attorney II
Roll No. 57304
Lifetime Member No. 010064
MCLE No. IV-0005340 3.28.2012

VERIFICATION / CERTIFICATION

I, CLARIBEL CORTES TABUDLONG, of legal age, married, Filipino,

and presently residing at 954 Malvar Street, Molave, Zamboanga Del Sur, after
having been duly sworn in accordance with law, hereby depose and state, that:

1. I am the complainant-appellant in the above-entitled case.

2. I have caused the preparation of this Memorandum of Appeal, read
and understood the contents thereof, which is true and correct of my
own knowledge and authenticity of the documents;
3. I have not commenced any action or filed any claim involving the
same issues in any court, tribunal or quasi-judicial agency and to the
best of my knowledge, no such action or claim is pending therein; and

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 4. Should I thereafter learn that the same or similar action or claim has
been filed or is pending, I would report such fact within five (5) days
therefrom.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 2nd

day of January, 2014 at Makati City.

CLARIBEL CORTES TABUDLONG

Affiant

SUBSCRIBED AND SWORN TO before me this 1st day of January, 2014

at Makati City, affiant exhibiting to me her SSS I.D. No. 08-0777853-5 issued by
the Social Security System.

ATTY. MARC JEREMIAH R. GARCIA

Ex-Officio Notary Public
(Pursuant to RA 9406)

EXPLANATION

Due to the lack of personnel to effect personal service at Respondents’

office, copy of this pleading was served unto the Respondents and their counsel
via registered mail, with appropriate registry receipt issued by the Post Office
attached below.

DAVID JULIAN G. PUZON

Copy furnished:

ATTY. FAUSTINO S. ESTIOCO, JR.

Counsel for Respondents
Unit 17A8 Victoria Station I
793 EDSA, Barangay South Triangle,
Quezon City 1103 Philippines

PEAK MANPOWER RESOURCES

ZAHER ABDULLAH KADOW
CRISTINA EDQUIBAN
2687 Arellano Ave., Malate, Manila