Republic of the Philippines

Department of Labor & Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. XIII
Butuan City

DIVINA H. RUIZ
NIMFA S. PATANAO,
Complainant,
NLRC Case No. RAB-13-08-
00422-2022
-versus-

PHIL-SINO UNION
RERSDOURCES
AND/OR KAM HUNG WONG
Respondent.
x~~~~~~~~~~~~~~~~~~~~~~~~~x

POSITION PAPER
RESPONDENTS, by the undersigned counsel, unto this Honorable
Office, respectfully states that:

I.
PREFATORY STATEMENT

While it is an established principle that the Constitution and the

Labor Code protect the interest of the labor, nonetheless, these do not
preclude, neither deny nor destroy any rights available to the employer.

The constitutional commitment to the policy of social justice cannot

be understood to mean that every labor dispute shall automatically be
decided in favor of the labor. It should not supposedly be used and
exploited by an employee to hold hostage an innocent employer from its
baseless claim.

This case involves two project based employees under Phil-Sino

Union Resources Inc. who claim to be illegally dismissed when in truth and
in fact, there is no dismissal to speak about. Mining industry is seasonal in
nature. And it is for this reason, that PHIL-SINO employees are mostly
project-based, so they work for specific periods of time consistent with the
company’s contracts with mining operators. For 2022, Phil-Sino’s contract
was downgraded so the volume of work is lesser compared to the past
mining seasons and these employees were simply not rehired and not
dismissed.

The case at hand, is a by-product of complainants’ premeditated

moves to intentionally damage the well established reputation of the
respondent company by claiming before this Honorable Office that they
were illegally dismissed, consequently causing hefty stress to their
innocent employer.
Given the above fact that there was no dismissal to speak of, there
can be no question also as to the legality or illegality thereof.

II.
ANTECEDENT FACTS

1.1 RESPONDENT PHIL-SINO UNION RERSOURCES, INC.

("PHIL-SINO") is a domestic corporation duly organized and
existing under and by virtue of the laws of the Republic of the
Philippines with office address at Unit 1202-B 12/F Keppel Center
Samar Loop, Cebu Business Park, Barrio Luz Cebu City. Phil-
Sino's SEC Registration No. is CS200829417A. A copy of Phil-
Sino's SEC Certificate of Registration, Articles of Incorporation
and By-laws are collectively attached and marked as Annex "A"

1.2 Since its incorporation up to the present, PHIL-SINO is doing

business as contractor for mining companies. The scope of its work
includes hauling, extraction, and delivery of ore minerals;

1.3Mining industry is seasonal in nature. The minerals extracted from

the mine site specifically in Urbiztondo Claver Surigao Del Norte
cannot be loaded in the foreign vessel which is anchored at sea,
during high tide. During the months where the swell is high, no
mining activity can be done.

1.4Taking into account the prevailing practice, PHIL-SINO’s

extraction and hauling contracts with mining operators based in
Surigao is not a year-round contract. Contracts are intermittent
like form June to October of this year and from April to October of
the following year.
1.5 Because of the nature of the industry, during off season, Phil-
Sino will have to suspend its operation and it is for this reason,

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 that its employees are mostly project-based. They work in
accordance with the company’s contracts with mining operators.

1.6Complainants are not regular employees. They were hired as

project workers to work as utility worker and ticket recorder/
checker, in connection with PHIL-SINO’s extraction and hauling
contracts with mining operators in Surigao Del Norte. Proof of
their employment contracts are collectively attached and marked
as annex B.
1.7 In accordance with company practice, and applicable laws, the
complainants are paid on a daily rate amounting to P 14,000.00
each/per month which is above the legally mandated minimum
wage. Because extraction and operation are seasonal, they work
on Sundays and they are paid in accordance with applicable law.

1.8On all material dates and times, PHIL-SINO has a hauling and
extraction contract with a mining operator in Surigao Del Norte.
The contract with a mining operator for the year 2020 started from
June and ended at October to complete all extraction and hauling
work.
1.9 For this reason, PHIL-SINO asked the complainants to sign new
project contracts so that they continue to work during the period
in the Year 2021 but for unknown reasons, the complainant Divina
H. Ruiz refused to sign the contract. Informatively, she is the only
one (1) of the Fifty-seven (57) total project employees who refused
to sign the new contracts.

1.10 For the new mining season starting May in the Year 2022,
PHIL-SINO’s contract was downgraded, From Fifty-seven (57) to
Forty-four (44) project employees, so the volume of work is lesser
compared to the past mining seasons and there is reduction in the
work force due to reduction of work requirement

1.11 Complainants tenure as workers were affected by this work

reduction and so for the current mining season they were no
longer hired.

1.12 On all material dates and times while working as project

employees, complainants were paid wages and labor fringe
benefits in accordance with industry practice, company practice
and applicable laws and regulations. Specifically, they were paid
13th month pay.
1.13 Verily, complainants were not dismissed from work, nor
illegally terminated from their employment. When they ceased
working with the company, it was because their project

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 employment has expired and they were no longer rehired by
respondent PHIL-SINO.

III.

THE ISSUES TO BE RESOVED

Respondent respectfully submits the following issue/s for the resolution of

the Honorable Office:

A. Whether or not there was dismissal rests on complainants

B. Whether or not complainants are entitled to their money claims
C. Whether or not respondent Phil-Sino Union Resources Inc. can be
held liable for illegal dismissal and money claims of the complainants
D. Whether or not Kam Hung Wong can be held personally liable for
the illegal dismissal of the two complainants

IV.
ARGUMENTS AND DISCUSSION

COMPLAINANTS ARE PROJECT-BASED EMPLOYEES

Complainants work on a project basis. It is a hornbook that project

employees do not have the same rights as regular employees. The elements
of project employees are as follows:
(a) the employee was assigned to carry out a particular project or
undertaking; and, (b) the duration and scope of which was specified
at the time of engagement.

In the case of In Dacuital vs. L.M. Camus Engineering Corp.,

the Court stressed that a project employee is assigned to a project that
starts and ends at a determined or determinable time. The Court elucidated
therein that the principal test to determine if an employee is a project
employee is - whether he or she is assigned to carry out a particular project
or undertaking, which duration or scope was specified at the time of
engagement.

This type of employment is sanctioned by our Labor Code as

exceptions to the definition of regular or casual employment. Article 280 of
our Labor Code states in part:
“Art. 280. Regular and Casual Employment. The provisions of
written agreement to the contrary notwithstanding and regardless of the
oral agreement of the parties, an employment shall be deemed regular xxx
xxx xxx except where the employment has been fixed for a specific

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period or undertaking the completion or termination of which has been
determined at the time of the engagement of the employee or where the
work or services to be performed is seasonal in nature and the employment
is for the duration of the season. “

THERE WAS NO DISMISSAL THAT RESTS ON THE

COMPLAINANTS

In the case of Machica v. Roosevelt Services Center, Inc., the Supreme

Court held that:

It is true that in constructive dismissal cases, the employer is

charged with the burden of proving that its conduct and action or the
transfer of an employee are for valid and legitimate grounds such as
genuine business necessity. However, it is likewise true that in
constructive dismissal cases, the employee has the burden to prove
first the fact of dismissal by substantial evidence. Only then when
the dismissal is established that the burden shifts to the employer to
prove that the dismissal was for just and/or authorized cause. The
logic is simple — if there is no dismissal, there can be no question as
to its legality or illegality.

In the case at hand, they were not dismissed. They were simply not
rehired. When they ceased working, it was because their tenure or term as
project employees had ended. It was not because they were dismissed from
work. There is a difference between these two things.

Complainants miserably failed to discharge this burden. The

respondent company was able to prove that they did not dismiss
complainants. In fact, the company reminded them about the contract for
signature. Instead of talking to the respondent company of their intentions,
they opted to file an illegal dismissal complaint with the Labor Arbiter.
There was no dismissal to speak about.

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COMPLAINANTS ARE NOT ENTITLED TO SEPARATION PAY AND
HAVE ALREADY RECEIVED THEIR 13TH MONTH PAY

In Philippine Long Distance Telephone Co. v. NLRC (PLDT), the

Court ruled that separation pay is only awarded to a dismissed employee in the
following instances: 1) in case of closure of establishment under Article 298 ; 2) in
case of termination due to disease or sickness under Article 299 of the Labor Code;
3) as a measure of social justice in those instances where the employee is validly
dismissed for causes other than serious misconduct or those reflecting on his moral
character; 4) where the dismissed employee's position is no longer available; 5)
when the continued relationship between the employer and the employee is no
longer viable due to the strained relations between them; or 6) when the dismissed
employee opted not to be reinstated, or the payment of separation benefits would be
for the best interest of the parties involved.

In all of these cases, the grant of separation pay presupposes that the
employee to whom it was given was dismissed from employment, whether
legally or illegally. In fine, as a general rule, separation pay in lieu of
reinstatement could not be awarded to an employee whose employment
was not terminated by his employer. Considering the foregoing facts,
complainants are not entitled to separation pay considering that there is no
dismissal in the very first place. They were simply not rehired.

With respect to the claim for 13th month pay, complainants are
rightfully entitled to this. Notwithstanding their employment as project-
based employee, pursuant to Department Advisory 02-12, “Rank-and-file
employees in the private sector shall be entitled to 13th month pay regardless of
their position, designation, or employment status, and irrespective of the method
by which their wages are paid, provided that they have worked for at least one
month during the calendar year.” The respondent has paid the
aforementioned 13th month pay last November 16, 2021 and November
15,2021. Proof of the signed acknowledgment receipts are collectively
attached and marked as annex C.

RESPONDENT PHIL-SINO UNION RESOURCES CANNOT BE HELD

LIABLE FOR ILLEGAL DISMISSAL AND MONEY CLAIMS OF THE
COMPLAINANTS

Illegal dismissal is only applicable if there is dismissal per se and

separation pay is not applicable to project based employees. As cited in the
above-mentioned jurisprudence, the entitlement to separation pay is not
applicable in this case. When reinstatement is no longer feasible,
separation pay maybe considered by the employer granting that there is a
valid cause for the dismissal. However, in the case at bar, there is no
instance. They were tasked only to carry out a specific function. They are

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not employees who have secured their tenure and have acquired the status
of regular employments.

KAM HUNG WONG CANNOT BE HELD PERSONALLY LIABLE

As clearly cited in the case of CHINA BANKING CORPORATION vs.

DYNE-SEM ELECTRONICS CORPORATION
“The general rule is that a corporation has a personality separate and distinct
from that of its stockholders and other corporations to which it may be
connected. This is a fiction created by law for convenience and to prevent injustice.
Agency by definition is a contract whereby a person binds himself to render some
service or to do something in representation or in behalf of of another, with the
consent and authority of the latter. (Art. 1868) “
Under the doctrine of separate personality. Corporations are treated
persons separate and distinct from the stockholder, he cannot be liable for
corporate acts. Under the Law on Agency, corporate officers are like agents
which by law, are not personally liable for acts done on behalf of the
principal which in this case, is PHIL-SINO.

PRAYER

WHEREFORE, premises considered, it is prayed that the complaint

be DISMISSED WITH PREJUDICE for lack of merit.
Other reliefs, just and equitable are likewise prayed for.
Butuan City, November 4,2022.

JOSELITO T. LOPEZ
Attorney’s Roll No. 37484
PTR No. 13263412/1.09/2017/Cebu Capitol
IBP O.R. No. 19662/1.09.2017/Cebu City Chapter
MCLE Compliance No. V-0009517
Mobile No. 0917-3205931
Email: advocate_111@yahoo.com.ph

Republic of the Philippines)

Butuan City_ _ _ _ _ _ _ _ _ _) S.S.

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VERIFICATION AND CERTIFICATION

I, KAM HUNG WONG, Chinese national, of legal age, a

representative of Phil-Sino Union Resources and with office address at
Unit 1202-B 12/F Keppel Center Samar Loop, Cebu Business Park, Barrio
Luz Cebu City Cebu, under oath depose and say:

1. I am the representative of the Phil Sino Union Resources, the

respondents in the above-captioned case.

2 As the representative of the respondent, I have caused the preparation

of the foregoing position paper, the contents of which we have read,
understood and are true and correct to the best of our personal
knowledge or based on copies of authentic records and documents in
our possession.

I hereby certify that we or Phil Sino Union Resources, have

commenced any other similar action before any court, agency or
tribunal and that to the best of my knowledge, no such action or
proceeding involving the same issues is pending in any court,
tribunal or agency.
If we should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
Appeals or any other tribunal or agency, I shall undertake to report
such fact within five (5) days therefrom to this Honorable Office.

5. We execute this verification and certification on non-forum

shopping freely and voluntarily.

IN WITNESS WHEREOF, we have hereunto affixed our signatures

on this_____th day of November 2022 in Cebu City.

KM HUNG WONG
Affiant

SUBSCRIBED AND SWORN to before me on this_____th day of

January 2018 in Cebu City. Affiant exhibited to me their competent proof
of identity, as follows:

Name Competent Proof of Issued on/Valid Until

Identity
KAM HUNG WONG

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Doc. No._____:
Page No._____:
Book No_____:
Series of 2022.

MAILING EXPLANATION

Counsel explains that this Position Paper will be served to the

complainant thru registered mail due to distance constraints and for lack of
personnel