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Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
REGIONAL ARBITRATION – NO. III
San Fernando, Pampanga

JAYSON MANANSALA BERNABE,

Complainant,

-versus-
NLRC Case No. RAB-III-08-00041-
23
FOR ILLEGAL DISMISSAL

B-MIRK ENTERPRISES CORPORATION/

COCA COLA BEVERAGES PHILIPPINES, INC.
Et., AL. Respondents,

X----------------------------------X

RESPONDENT’S REPLY

HERE COMES, RESPONDENT, B-MIRK ENTERPRISES

CORPORATION (B-Mirk for brevity) through the undersigned, unto
this Honorable Arbitration, most respectfully submits this REPLY
and humbly avers THAT:

1. Complainant’s claim for regularization in the instant case is

so misplaced because he is an active employee of
respondent B-Mirk, with the latter as his employer.

2. Likewise, respondent Coca Cola Beverages Philippines

Incorporated or CCBPI for brevity, is a corporation duly
established and registered under the laws of the Republic of
the Philippines, a juridical person, engaged in
manufacturing of non-alcoholic beverages c/o Mr. Gareth
McGeown who is impleaded as one of the respondents in
the instant case due to his capacity as the president and
Chief Executive Officer (CEO) of the respondent CCBPI
located at 27th Floor, SIX/NEO Bldg.,5th Ave., Cor. 26th
Street, Bonifacio Global City, 1635 Taguig City.
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Complainants are:

JUVY CARRASCAL PAULE, Filipino, of legal age, with postal

address at II-A Miranda Compound, Malinta, Valenzuela
City; and,

ADRIANNE ROY DUBLAD MERCADO, Filipino, of legal age,

with postal address at 46 Melchor St., Lias, Marilao,
Bulacan where they may be furnished with pleadings and
notices and other processes of this Honorable office in
relation to this case.

ISSUES

1. WHETHER OR NOT THERE EXISTS AN EMPLOYER-

EMPLOYEE RELATIONSHIP BETWEEN THE
COMPLAINANTS AND THE CO-RESPONDENT (COCA-COLA).

2. WHETHER OR NOT RESPONDENT B-MIRK IS ENGAGED IN

LABOR ONLY CONTRACTING SCHEME.

3. WHETHER OR NOT THE RESPONDENTS ARE LIABLE TO

PAY COMPLAINANTS THE FOLLOWING:

A. Benefits in their Collective Bargaining Agreement

B. Moral and Exemplary Damages
C. Attorney’s fees

1.1 Respondent B-Mirk has well established in its position paper

that there is an existing employer-employee relationship with
the complainants, referring the ruling of the Supreme Court
in the case of G.R. NO. 233413, JUNE 17, 2019, CELIAR.
ATIENZA, V. NOEL SACRAMENTO SALUTA, respondent
argues that it has sufficiently established its employer-
employee relationship with the complainants.

1.2 Likewise, B-Mirk has established in its position paper being

the employer of herein complainants, tracing back from the
start of their employment with the respondent wherein they
did undergo a series of recruitment and screening processes
and were carefully scrutinized and selected among the rest
of the applicants. Among others complied to submit required
clearances as well as documentary requirements, and even
went through a series of orientations and job trainings
before deployment to B-Mirk’s client CCBPI. The hiring
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procedures characterized by a series of screening,

interviews, and the entire selection process conducted by the
respondents to the complainants prior to their onboarding
and subjecting for deployment were all conducted and
supervised by B-Mirk thus, speaks of the existence of
employer-employee relationship between herein parties.

1.3 Accordingly, the CONTRACTS OF EMPLOYMENT were

documentary proofs that complainants had entered into,
agreed upon and signed with respondent B-Mirk to which
both had agreed on the terms and conditions with respect to
all aspects of employment for the said contract itself simply
serves as substantial proof of complainant’s employment.

1.4 Also, B-Mirk has established in its position paper that the
same exercises complete control and supervision over the
means, method and the result of its day-to-day operations
and services with its client CCBPI wherein complainants
were deployed.

1.5 B-Mirk being the legitimate employer of herein complainants

has the authority of supervision and control over the
conduct and working behavior of the complainants and the
proof of which is the CODE OF DISCIPLINE of B-Mirk which
governs the conduct and work behavior and professional
relationship between their fellow employees as well as with
the management. A copy of the CODE OF DISCIPLINE has
been attached in our position paper filed
dated_____________________.

1.6 Moreover, respondent argues that the memoranda issued to

the employees together with complaints on various issues for
all intents and purposes were considered as substantial
proofs that respondents exercise administrative control and
supervision over its employees in governing their respective
conducts and behavior in the workplace or area. Issued
MEMORANDA had already been attached in the position
paper.

1.7 The same was argued by the respondents in its position that
it has established that B-Mirk’s Operations Manager,
Supervisors as well as its On Site Team Leaders assigned in
the premises of our client CCBPI have been conducting
regular checking of employees’ attendance, punctuality and
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work accomplishments had been noted as performance and

work behaviors or other undertakings thus, simply
emphasizes B-Mirk’s control and administrative supervision
on its employees.

1.8 Respondent also argues that it has established in its position

paper that it is the one who religiously pays for the
complainants’ wages, salaries more so, their SSS, Pag ibig
and Phil Health contributions simply affirming the fact that
it is not just a typical employer but an employer who
religiously paid of the salaries and wages of their employees
on time as per the complainants belong to. It is in itself
mandatory with the statutory benefits strongly affirms the
legitimacy of B-Mirk as a legitimate job contractor.

1.9 Arguably, it has been established as well in the position

paper filed by the respondent as the institution clothed with
the authority by law to impose discipline to their employees
consistent with the provisions of Republic Act 442 also
known as the LABOR CODE as amended. The power to
impose disciplinary actions whereas to dismiss the
complainants were the sole prerogative of B-Mirk as
exercised by the Human Resource Department (HRMD). The
same is true that there have been several issuances of
administrative memoranda through the HRMD against the
complainants for issues concerning their employment.

1.10 B-Mirk also argues in its position paper that it already

established the fact that it never was engaged in Labor only
contracting. Therefore, asserting that it is a duly registered
corporation with the DOLE as evidenced by the
CERTIFICATE OF REGISTRATION UNDER DO 174-17
issued by the Department of Labor and Employment with
registration number ROIVA-RPO-DO174-0223-001-R
dated FEBRUARY 13, 2023, with validity until
FEBRUARY 24, 2025.

1.11 In support with par. (10) of our position paper, B-Mirk has
established the requirements for its substantial
capitalization amounting to ONE HUNDRED FORTY-TWO
MILLION EIGHT HUNDRED FIFTY THOUSAND PESOS
(Php142,850,000.00) invested in legitimate contracting
business which has been supported by true and factual
AUDITED FINANCIAL STATEMENTS for the periods
ending 2017-2018, 2018-2019, 2019-2020, 2020-2021,
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and 2022 which bears the records of the entire Assets,

Liabilities, and Stockholders of B-Mirk.

In support of the foregoing, respondents invoked ruling of

the Supreme Court in the case of G.R. No. 172363, March
7, 2008, JUVY M. MANATAD vs. PHILIPPINE
TELEGRAPH AND TELEPHONE CORPORATION, which
reads:

“That the financial statements are audited by independent

auditors safeguards the same from the manipulation of the
figures therein to suit the company's needs. The auditing
of financial reports by independent external auditors are
strictly governed by national and international standards
and regulations for the accounting profession. It bears to
stress that the financial statements submitted by
respondent were audited by reputable auditing firms.
Hence, petitioner's assertion that respondent merely
manipulated its financial statements to make it appear
that it was suffering from business losses that would
justify the retrenchment is incredible and baseless”.

“In addition, the fact that the financial statements were

audited by independent auditors settles any doubt on the
authenticity of these documents for lack of signature of
the person who prepared it. As reported by SGV & Co., the
financial statements presented fairly, in all material
aspects, the financial position of the respondent as of 30
June 1998 and 1997, and the results of its operations and
its cash flows for the years ended, in conformity with the
generally accepted accounting principles.”

2.1 In addition, B-Mirk has established very well its so many

INVESTMENTS made in various forms which are shown in
the form of PLANTS and WAREHOUSES, OFFICES IN
DIFFERENT LOCATIONS IN THE COUNTRY, as well as
TOOLS, OFFICE EQUIPMENT, and MACHINERIES, and
others, all of which have become significantly instrumental
in the business operations and services particularly in the
delivery of its services to its valued clients. The tools and
equipment mentioned include push carts (“kartilya”), jack
pallets, several dozens of portable computers such as
desktops and laptops, as well as communication facilities
like mobile cellphones, and a lot more.

2.2 Respondent argues if B-Mirk engaged in kind of a “labor

only contracting or fly-by-night entity”, the same could not
be sustained for the reason that, its operations for several
years in paying the salaries of services of more or less Five
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Thousand (5,000) Employees deployed to several clients

and business units from Luzon to Mindanao. In line with
the foregoing, the Honorable Arbitration can look into the
cost of the monthly salary of B-Mirk spending on their
employees each month amounting to more or less FIFTY
MILLION PESOS (50,000,000) paid regularly by the
company on a monthly basis not to mention the
remittances paid for SSS, Pag-IBIG and Phil Health
contributions of its Employees for each month amounting
to NINE MILLION PESOS (9,000,000).

2.3 B-Mirk as well argues that it is not a kind “labor only

contracting or fly-by-night entity” if so, how did it became
a recipient of recognition from PAG IBIG Fund as one of
the Top 100 Employers for the Category Membership
Savings Collection in 2018-2019 the same award had
been attached in our position paper filed and submitted
before this honorable Commission.

2.4 B-Mirk stresses that its resemblance in the case of ICSI as

ruled in the case of San Miguel Foods, Inc., v. Hannival
V. Rivera (G.R. No. 220103, January 31, 2018) where
the same was ruled that the findings of both the Labor
Arbiter and the National Labor Relations Commission and
successfully ruled that ICSI is a true and legitimate
contractor not just a fly-by-night institution.

2.5 Also, herein respondent is performing the work farmed out

by the principal, is free from control and/or direction of
the latter in all matters connected with the performance of
the work except as to the results thereof. B-Mirk, as a
legitimate job contracting entity, has direct supervision
and independent control over the day-to-day operations
and of their services to its clients. More emphasized is
that B-Mirk is in control over the activities of its employees
deployed in all its clients’ workplaces, and much more
over the services rendered by its staff and personnel at the
premises of the clients or at its own warehouses.

3 B-Mirk has established agreements with its principal Coca-Cola

in the form of service agreements and entered employment
contracts with the herein complainants, thereby, ensuring
compliance with all the rights and benefits for all the employees
of the contractor /subcontractor under the labor laws.
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4 B-Mirk has successfully established its being a legitimate job

service contractor, and further proves that it is engaged in a
distinct and independent business and its own manner and
method different from their principals. The List of the Clients
that B-Mirk has engaged being a job service contractor simply
proves that it has a distinct and independent business, and it
has its own manner and method different from their principals.

5 Complainants claim for moral and exemplary damages and

attorneys’ fee is baseless. There is no basis that respondents be
required to pay complainants of moral and exemplary damages.
Where there is established damages or injury made by the
respondents upon them, and that there is no act of breach
committed to them, there is also no reason that they will be
compensated for their claim for moral and exemplary damages
considering it to be baseless, and unfounded.

In the case of G.R. No. 142029 February 28, 2001, ERLINDA

FRANCISCO, doing business in the name and style of Cebu
Fountainhead Bakeshop and JULIANA PAMAONG, petitioners,
vs. RICARDO FERRER, JR., ANNETTE FERRER, ERNESTO LO
AND REBECCA LO, the Supreme Court has ruled:

"Moral damages are in the category of an award

designed to compensate the claimant for actual
injury suffered and not to impose a penalty on the
wrongdoer."17

"The person claiming moral damages must prove the

existence of bad faith by clear and convincing
evidence for the law always presumes good faith. It
is not enough that one merely suffered sleepless
nights, mental anguish, serious anxiety as the result
of the actuations of the other party. Invariably such
action must be shown to have been willfully done in
bad faith or will ill motive." 18 "Mere allegations of
besmirched reputation, embarrassment and
sleepless nights are insufficient to warrant an award
for moral damages. It must be shown that the
proximate cause thereof was the unlawful act or
omission of the [private respondent] petitioners."19

"An award of moral damages would require certain

conditions to be met, to wit: (1) first, there must be
an injury, whether physical, mental or psychological,
clearly sustained by the claimant; (2) second, there
must be culpable act or omission factually
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established; (3) third, the wrongful act or omission

of the defendant is the proximate cause of the injury
sustained by the claimant; and (4) fourth, the award
of damages is predicated on any of the cases stated
in Article 2219" of the Civil Code.21

"It must again be stressed that moral damages are

emphatically not intended to enrich a plaintiff at the
expense of the defendant."22 "When awarded, moral
damages must not be palpably and scandalously
excessive as to indicate that it was the result of
passion, prejudice or corruption on the part of the
trial court judge"23 or appellate court justices.24

In the same fashion, to warrant the award of

exemplary damages, "[t]he wrongful act must be
accompanied by bad faith, and an award of
damages would be allowed only if the guilty party
acted in a wanton, fraudulent, reckless or malevolent
manner."25

"The requirements of an award of exemplary

damages are: (1) they may be imposed by way of
example in addition to compensatory damages, and
only after the claimant's right to them has been
established; (2) that they cannot be recovered as a
matter of right, their determination depending upon
the amount of compensatory damages that may be
awarded to the claimant; (3) the act must be
accompanied by bad faith or done in a wanton,
fraudulent, oppressive or malevolent manner."26

6 COMPLANANTS’ claim for CBA Benefits is misplaced, and

respondent’s counter-explanations with sustaining evidence
have been presented very well in its position paper, and its
REPLY as well. The fact that there is no existing workers union
at B-Mirk, it is not lawful, proper, and logical that complainants
would be granted CBA Benefits by the company where there is
no existing collective bargaining agreement established.

While complainants failed to discharge the burden of proof

which was incumbent upon them to prove their claim of CBA
Benefits, and that they failed to prove their membership with
the union at Coca-Cola, they did not even submit such a piece
sustaining evidence to prove thereto. However, it must be at
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the complainants’ burden to defeat the fact that at this point

of time while their case is still under petition or process as in
the instant case, they are officially employees of respondent B-
Mirk and with that, they cannot validly claim being members
of unions at Coca-Cola even as to this date. While being
employees of B-Mirk, their claim for CBA is purely strange and
absolutely speculative because B-Mirk has not had any union
ever since, aside from the fact that their claim of CBA Benefits
is self-serving in the absence of sustaining evidence. And in
compliance with the rule on the burden of proof,
complainants, being the party who alleges that they are
members of union claiming to avail of CBA at Coca-Cola, must
have validly and substantially proven their membership.
However, in so far as the submitted position Paper, and even
in their REPLY, nothing has been submitted, so far. Hence,
complainants have been proven short of their claim on CBA
Benefits.

7 Considering that complainants have not adduced any proof to

attest to their established membership with the union as above
explained and argued, it follows that they have no accredited
personality to claim for the CBA Benefits that are accorded to
members thereof, and since the Complainants have already been
paid based on DOLE Mandated Wage, there is no reason that
they will be paid again.

8 The activities performed by complainants in their work at the

premises of the principal are not directly related with the core
business of the latter considering the fact that their functions
and services being Delivery Assistants are purely not related to
manufacture, or production of softdrink products. With the
foregoing, herein respondent argues that the activities they
performed at the principal’s premises or workplace can be
lawfully and easily contracted out.

9 In addition, complainants’ basis for claiming regularization

contending that their works and services being Delivery
Assistants are necessary and desirable for the principal’s
business cannot not validly sustain their argument. Where all
works and services at the principal’s premises are all necessary
and desirable, this infers that the argument of desirability and
necessity could not sustain the complainant’s claim to be
selectively regularized with their work lacks the significant
difference when compared with the works and services
performed by other workers.
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RELIEF
WHEREFORE, in view of the foregoing, the respondent most
respectfully prays:

1. That the complaint filed against herein respondents be

dismissed for utter lack of merit.

2. Other reliefs Just and Equitable are likewise prayed for.

Antipolo City for San Fernando, Pampanga July 18, 2023.

COPY FURNISHED AND EXPLANATION

Copy furnished:

JUVY CARRASCAL PAULE, ET AL.,

Complainant
II-A Miranda Compound, Malinta,
Valenzuela City

Adrianne Roy Dublad Mercado

Complainant
46 Melchor Street, Lias,
Marilao, Bulacan

COCA-COLA BEVERAGES PHILS. INC.,

Co-Respondents
27th Floor SIX/NEO Bldg.,
5th Avenue Corner 26th Street,
Bonifacio Global City, Taguig City 1635

The filing and or service of the foregoing is/are via registered

mail/alternative courier due to lack of manpower to effect
personal filing and/or service and due to the effect personal
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filing and/or service and due to the distance involved and/or

constraints.

RAMON A. CASTRO
Representative for the respondents
No. 9 Pizarro St. Vista Verde Executive Village
Antipolo City