Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

National Capital Region
Quezon City

OFFICE OF LABOR ARBITER BENEDICT G. KATO

ROOM 303, 3RD FLOOR, BOOKMAN BUILDING

LOURDES ESPLAGO FRILLES,

Complainant,

-versus- NLRC-NCR-CASE-NO. 06-11558-19

CUSTOM SPORTSWEAR, ET.AL.,

Respondents
x-----------------------------------------x

POSITION PAPER FOR THE COMPLAINANT WITH

URGENT MOTION FOR PRODUCTION, INSPECTION AND
EXAMINATION OF THE TIME KEEPING AND PAYROLL
RECORDS INCLUDING FINANCIAL BOOKS AND OTHER
PERTINENT DOCUMENTS OF THE RESPONDENT

COMPLAINANT by the undersigned counsel and unto his Honorable

Labor Arbitration Office, most respectfully submits this position paper and avers
the following to wit:

PREFATORY STATEMENT

Where does oppression end? And where does justice begin?

This is a horrific story of slavery that we never thought would exist

in the very heart of Metro Manila in this age and time. The Labor Code of the
Philippines was enacted precisely to put an end to inhumane way employers
treat their employees. It is hard to imagine that employers like the Respondent,
who act like masters of old exercising dominion over their helpless peasants,
continue to exist and subject another human being in such a cruel treatment.
The Complainant now therefore seeks refuge upon the provisions of our labor
laws and ask that her sufferings at the hands of her employer be put to rest. We
implore the Solomonic wisdom of the authorities, so that justice may be served
and impress upon the Respondents that we no longer live in a time where the
rich desecrate upon the rights of the powerless without fear of the mighty power
of the state and its laws.

THE PARTIES

The Complainant is LOURDES ESPLAGO FRILLES, of legal age,

single with residential address at 9424 F. Felipe St., Guadalupe Nuevo, Makati
City where she could be served with summons and other legal processes of this
Honorable Office.

The Respondent is Custom Sportswear (CUSTOM for brevity) which

is currently now known as Delta Sportswear (DELTA for brevity), a business
establishment owned by Destine Marwhil Javelona (JAVELONA for brevity) and
managed by Joey Kevin Sellado (SELLADO for brevity), with business address at
Lt 20, Rosemarie Lane, Kapitolyo, Pasig City, 1603 Metro Manila.

STATEMENT OF FACTS

The Complainant was a regular employee as Sewer/Cutter and

Quality Control Supervisor of Respondent Custom/Delta. She joined Custom on
18 November 2014. A copy of the Complainant’s contract of employment is
hereto attached as Annex “A”.

Respondent Custom /Delta is the largest manufacturer of high-

quality customized sportswear and supplies sports uniform to some of the
biggest sports teams in various commercial leagues in and out of the country.
Currently, it has a live contract with Alab Pilipinas, a basketball team owned by
the San Miguel Corporation playing at the Asean Basketball League (ABL). It
also has a live contract with Phoenix Fuel Masters, a basketball team owned by
Phoenix Fuel playing at the Philippine Basketball Association. It also has
sponsors the Ginebra Legends Team. It also has an existing endorsement deal
with Bobby Ray Parks, a superstar basketball player with the PBA. In its official
Facebook Page, Respondent Delta also pronounced that it ships customized
sportswear to Australia, Canada, United Arab Emirates, Taiwan, Malaysia, New
Zealand, Singapore, Thailand, United Kingdom, United States of America and
Hong Kong. Yet, despite its obvious economic growth as a business entity, it
currently employs only twenty-one (21) sports manufacturing employees to
satisfy its global business demands. For the reference of the Honorable Arbiter,
a copy of Respondent Delta’s Facebook post on its shipping destinations is
attached hereto as Annex “A-1”.

Upon the Complainant’s employment and as reflected in Annex “A”,

she was paid PhP1,750/week from Monday to Friday with a work schedule of
9:00 am to 7:00 pm including one-hour lunch break. Her regular working hours
is therefore one hour longer than the prescribed eight-hour work schedule. On
top of her regular overtime work of one hour a day, Complainant also regularly
renders overtime work of up to 10:00 pm at least twice in a week and of up to
9:00 am the next working day on at least twice in a week. Repeatedly,
Complainant was likewise required to work on Saturdays, her rest day, from 6:00
am to 2:00 pm despite this not being included in the employment contract. The
Respondents are running a sweatshop.

Despite the Complainant rendering overtime/premium work at least

one hour once a week, at least four hours twice a week, at least 15 hours twice
a week and another eight hours on Saturdays, she was not paid her overtime
pay, night differential, holiday pay, rest day for the whole duration of her
employment with Respondent. Also, despite her performing functions which are
usually necessary or desirable in the usual business or trade of Respondent
Custom/Delta and that she has rendered continuous service for a period of four
(4) years and six (6) months and twenty (20) days, she was not paid her 13th
month pay as required by law.

It should be further noted that the PhP1,750/week rate indicated by

Respondent Custom/Delta in the contract of service (Annex “A”) issued to the
Complainant translates to a daily rate of PhP350/day which was lower than the
effective prescribed minimum wage rate covering the years she was employed
with Respondent Custom/Delta as reflected in the website of the National Wages
and Productivity Commission (NWPC), an attached agency of the Department of
Labor and Employment (DOLE). Specifically, Complainant should have received
a daily rate as described below:

Period Daily Rate Legal Basis

18 November 2014 – 03 PhP429.00/day Wage Order No. 18
April 2015
04 April 2015 – 01 June PhP444.00/day Wage Order No. 19
2016
02 June 2016 – 04 PhP454.00/day Wage Order No. 20
October 2017
05 October 2017 – 21 PhP475.00/day Wage Order No. 21
November 2018
22 November 2018 – 31 PhP500.00/day Wage Order No. 22
March 2019
01 April 2019 – 13 June PhP900.00/day Delta Employment
2019 Contract dated 03 April
2019 (Annex “C”)

For the reference of the Honorable Arbiter, a print-out of the

Summary of Daily Minimum Wage Rates Per Wage Order, By Region Non-
Agriculture (1989 – Present) uploaded in the website of the NWPC is attached
hereto as Annex “B”.

Yet despite of the unfavorable working conditions and not being

properly paid, the Complainant for fear of losing work and income, stayed with
Respondent Custom/Delta until she was unceremoniously booted out.

Perhaps as a recognition of her invaluable service to Respondent

Custom/Delta, the complainant was granted an employment contract dated 03
April 2019 categorizing her as a regular employee effective 01 April 2019 with
the official designation as Senior Sewer at the salary rate of PhP900.00/day and
entitlement to 13th month pay and service incentive leave. A copy of the said
employment contract is attached hereto as Annex “C”.

Thus, the Complainant’s unpaid and underpaid wages and salaries

in the course of her employment can be summarized as follows:

1. Underpayment of Salary
Period Daily Rate Differential Days worked Money Claim
 (Daily Rate – (Differential x
PhP350.00) days worked)
18 PhP429.00/day PhP79.00/day November 2014 – PhP6,162.00
9 days
November
December 2014 –
2014 – 03
20 days (excl.
April 2015 dates 24, 25, 26,
30 and 31)
January 2015 –
17 days (excl.
dates
1,2,15,16,19)
February 2015-
18 days (excl.
dates 19,25)
March 2015 – 22
days
TOTAL: 78 days

04 April PhP444.00/day PhP94.00/day April 2015 – 19 PhP28,576.00

days (excl. dates
2015 – 01
2,3,4,9)
June
May 2015 – 20
2016 days (excl. date
1)
June 2015 – 21
days (excl. date
12)
July 2015 – 23
days (excl. date
17)
August 2015 –
19 days (excl.
date 21,31)
September 2015
– 21 days (excl.
date 25)
October 2015 –
22 days
November 2015 –
18 days (excl.
dates 18, 20, 30)
December 2015 –
19 days (excl.
 dates
24,25,30,31)
January 2016 –
20 days (excl.
date 1)
February 2016 –
19 days (excl.
dates 8,25)
March 2016 – 21
days (excl. dates
24,25)
April 2016 – 21
days
May 2016 – 21
days (excl. date
9)
June 2016 – 1
day
TOTAL: 307
days

02 June PhP454.00/day PhP104.00/day June 2016 – 21 PhP34,840.00

days (excl. date
2016 – 04
1)
October
July 2016 – 20
2017 days (excl. date
7)
August 2016 –
22 days (excl.
date 29)
September 2016
– 21 days (excl.
date 12)
October 2016 –
20 days (excl.
date 31)
November 2016 –
20 days (excl.
dates 1, 30)
December 2016 –
20 days (excl.
dates 26,30)
January 2017-21
days
 February 2017 –
20 days
March 2017 – 23
days
April 2017 – 18
days (excl. dates
13,14)
May 2017 – 22
days (excl. date
1)
June 2017 – 20
days (excl. date
12,26)
July 2017 – 21
days
August 2017 –
21 days (excl.
dates 21,28)
September 2017
– 21 days
October 2017 – 3
days
TOTAL: 335
days

05 PhP475.00/day PhP125.00/day October 2017 – PhP34,875.00

19 days (excl.
October
dates 2,3,4,31)
2017 – 21
November 2017 –
November 20 days (excl.
2018 dates 1,30)
December 2017 –
20 days (excl.
date 25)
January 2018 –
22 days (excl.
date 1)
February 2018 –
19 days (excl.
date 16)
March 2018 – 20
days (excl. dates
29,30)
 April 2018 – 20
days (excl. date
9)
May 2018 – 21
days (excl. dates
1,14)
June 2018 – 19
days (excl. dates
12,15)
July 2018 – 22
days
August 2018 –
21 days (excl.
dates 21,27)
September 2018
– 20 days
October 2018 –
23 days
November 2018 –
13 days (excl.
dates 1,2)
TOTAL: 279
days

22 PhP500.00/day PhP150.00/day November 2018 – PhP12,900.00

7 days (excl.
November
dates 1-21,30)
2018 – 31
December 2018 –
March 18 days (excl.
2019 dates 24,25,31)
January 2019 –
22 days (excl.
date 1)
February 2019 –
18 days (excl.
dates 5,25)
March 2019 – 21
days
TOTAL 86 days

TOTAL PhP117,353.00

2. Non-payment of wages during rest day (Saturday) where complainant was

required to work
Period Daily Rate Rest Day Rate Days worked Money Claim
 (Daily Rate x 1.3) (Rest Day Rate
x days worked)
18 PhP429.00/day PhP557.70/day November 2014 PhP13,942.00
– 2 days (22,29)
November
December 2014
2014 – 03
– 4 days
April (6,13,2027)
2015 January 2015 –
5 days
(3,10,17,24,31)
February 2015-
4 days
(7,14,21,28)
March 2015 – 4
days
(7,14,21,28)
TOTAL: 25
days

04 April PhP444.00/day PhP577.20/day April 2015 – 3 PhP32,900.40

days (11,18,25)
2015 – 01
May 2015 – 5
June
days
2016 (2,9,16,2,30)
June 2015 – 4
days
(6,13,20,27)
July 2015 – 4
days
(4,11,18,25)
August 2015 –
5 days
(1,8,15,22,29)
September
2015 – 4 days
(5,12,19,26)
October 2015 –
5 days
(3,10,17,24,31)
November 2015
– 4 days
(7,14,21,28)
December 2015
– 3 days
(5,12,19)
 January 2016 –
4 days
(9,16,23,30)
February 2016
– 4 days
(6,13,20,27)
March 2016 – 4
days
(5,12,19,26)
April 2016 – 4
days
(2,16,23,30)
May 2016 – 4
days
(7,14,21,28)
TOTAL: 57
days

02 June PhP454.00/day PhP590.20/day June 2016 – 4 PhP38,953.20

days
2016 – 04
(4,11,18,25)
October
July 2016 – 5
2017 days
(2,9,16,23,30)
August 2016 –
5 days
(6,13,20,27)
September
2016 – 3 days
(3,17,24)
October 2016 –
5 days
(1,8,15,22,29)
November 2016
– 4 days
(5,12,19,26)
December 2016
– 3 days
(3,10,17)
January 2017-
3 days
(7,14,21)
February 2017
– 4 days
(4,11,18,25)
 March 2017 – 4
days
(4,11,18,25)
April 2017 – 5
days
(1,8,15,22,29)
May 2017 – 4
days
(6,13,20,27)
June 2017 – 4
days
(3,10,17,24)
July 2017 – 5
days
(1,8,15,22,29)
August 2017 –
4 days
(5,12,19,26)
September
2017 – 4 days
(9,16,23,30)
TOTAL: 66
days

05 PhP475.00/day PhP617.50/day October 2017 – PhP35,197.00

4 days
October
(7,14,21,28)
2017 – 21
November 2017
November – 4 days
2018 (4,11,18,25)
December 2017
– 4 days
(2,9,16,23)
January 2018 –
4 days
(6,13,20,27)
February 2018
– 4 days
(3,10,17,24)
March 2018 – 4
days
(3,10,17,24)
April 2018 – 4
days
(7,14,21,28)
 May 2018 – 4
days
(5,12,19,26)
June 2018 – 5
days
(2,9,16,23,30)
July 2018 – 4
days
(7,14,21,28)
August 2018 –
4 days
(4,11,18,25)
September
2018 – 5 days
(1,8,15,22,29)
October 2018 –
4 days
(6,13,20,27)
November 2018
– 3 days
(3,10,17)
TOTAL: 57
days

22 PhP500.00/day PhP650.00/day November 2018 PhP12,350.00

– 1 day (24)
November
December 2018
2018 – 31
– 5 days
March (1,8,15,22,29)
2019 January 2019 –
4 days
(5,12,19,26)
February 2019
– 4 days
(2,9,16,23)
March 2019 – 5
days
(2,9,16,23,30)
TOTAL: 19 days

01 April PhP900.00/day PhP1,170.00/day April 2019 – 3 PhP10,530.00

days (6,13,27)
2019 – 13
May 2019 – 4
June
days
2019 (4,11,18,25)
 June 2019 – 2
days (1,8)
TOTAL: 9 days

TOTAL PhP143,872.60

3. Non-payment of overtime pay

Period Daily Rate and Overtime Rate Hours Money Claim
Hourly Rate (Hourly Rate x Complainant (OT hours x OT
(Daily Rate/8 1.25) rendered rate)
hours) overtime
(one hour
every
Monday,
four hours
every
Tuesdays
and
Thursdays
and fifteen
hours every
Wednesdays
and Fridays
18 PhP429.00/day PhP67.04/hour November PhP44,849.76
2014 – 77
November PhP53.63/hour
hours
2014 – 03
December
April 2014 – 123
2015 hours
January 2015
– 156 hours
February
2015- 152
hours
March 2015 –
161 hours
TOTAL: 669
hours

04 April PhP444.00/day PhP69.38/hour April 2015 – PhP156,521.28

137 hours
2015 – 01 PhP55.50/hour
June May 2015 –
161 hours
2016
June 2015 –
152 hours
July 2015 –
191 hours
August 2015 –
152 hours
September
2015 – 171
hours
October 2015 –
175 hours
November
2015 – 148
hours
December
2015 – 155
hours
January 2016
– 156 hours
February 2016
– 152 hours
March 2016 –
160 hours
April 2016 –
171 hours
May 2016 –
160 hours
June 2016 –
15 hours
TOTAL: 2,256
hours

02 June PhP454.00/day PhP70.94/hour June 2016 – PhP191,679.88

163 hours
2016 – 04 PhP56.75/hour
July 2016 –
October
167 hours
2017 August 2016 –
175 hours
September
2016 – 174
hours
October 2016 –
156 hours
 November
2016 – 167
hours
December
2016 – 170
hours
January 2017-
160 hours
February 2017
– 156 hours
March 2017 –
190 hours
April 2017 –
151 hours
May 2017 –
175 hours
June 2017 –
173 hours
July 2017 –
157 hours
August 2017 –
177 hours
September
2017 – 171
hours
October 2017 –
20 hours
TOTAL: 2,702
days

05 PhP475.00/day PhP74.22/hour October 2017 – PhP168,108.30

151 hours
October PhP59.38/hour
November
2017 – 21
2017 – 156
November hours
2018 December
2017 – 171
hours
January 2018
– 176 hours
February 2018
– 156 hours
March 2018 –
165 hours
 April 2018 –
171 hours
May 2018 –
175 hours
June 2018 –
165 hours
July 2018 –
161 hours
August 2018 –
188 hours
September
2018 – 156
hours
October 2018 –
176 hours
November
2018 – 98
hours (3,10,17)
TOTAL: 2,265
hours

22 PhP500.00/day PhP78.13/hour November 2018 PhP55,394.17

– 47 hours
November PhP62.50/hour
December
2018 – 31
2018 – 151
March hours
2019 January 2019 –
175 hours
February 2019
– 165 hours
March 2019 –
171 hours
TOTAL: 709
hours

01 April PhP900.00/day PhP140.63/hour April 2019 – PhP54,423.81

175 hours
2019 – 13 PhP112.50/hour
May 2019 –
June
174 hours
2019 June 2019 – 38
hours
TOTAL: 387
hours

TOTAL PhP670,977.20

4. Non-payment of Night Shift Differential for work rendered beyond 10 p.m.

 Period Daily Rate and Overtime Rate Hours Money Claim
Hourly Rate (Hourly Rate x Complainant (hours work
(Daily Rate/8 1.25) rendered beyond 10 pm
hours) Night Shift work beyond x night shift
Differential (10 10 p.m. differential
% of Overtime (at least twice
Hourly Rate a week, 11
hours each
time)
18 PhP429.00/day PhP67.04/hour November 2014 PhP1,917.34
– 44 hours
November PhP53.63/hour PhP6.704/hour
December 2014
2014 – 03
– 66 hours
April January 2015 –
2015 88 hours
February 2015-
88` hours
March 2015 –
88 hours
TOTAL: 286
hours

04 April PhP444.00/day PhP69.38/hour April 2015 – 77 PhP8,931.78

hours
2015 – 01 PhP55.50/hour PhP6.94/hour
May 2015 – 88
June
hours
2016 June 2015 – 88
hours
July 2015 – 110
hours
August 2015 –
88 hours
September 2015
– 99 hours
October 2015 –
99 hours
November 2015
– 88 hours
December 2015
– 88 hours
January 2016 –
88 hours
February 2016 –
88 hours
 March 2016 –
88 hours
April 2016 – 99
hours
May 2016 – 88
hours
June 2016 – 11
hours
TOTAL: 1,287
hours

02 June PhP454.00/day PhP70.94/hour June 2016 – 88 PhP10,934.00

hours
2016 – 04 PhP56.75/hour PhP7.10/hour
July 2016 – 99
October
hours
2017 August 2016 –
99 hours
September 2016
– 99 hours
October 2016 –
88 hours
November 2016
– 99 hours
December 2016
– 99 hours
January 2017-
88 hours
February 2017 –
88 hours
March 2017 –
110 hours
April 2017 – 88
hours
May 2017 – 99
hours
June 2017 – 99
hours
July 2017 – 88
hours
August 2017 –
99 hours
September 2017
– 99 hours
October 2017 –
11 hours
 TOTAL: 1,540
hours

05 PhP475.00/day PhP74.22/hour October 2017 – PhP9,467.92

88 hours
October PhP59.38/hour PhP7.42/hour
November 2017
2017 – 21
– 88 hours
November December 2017
2018 – 99 hours
January 2018 –
99 hours
February 2018 –
88 hours
March 2018 –
88 hours
April 2018 – 99
hours
May 2018 – 88
hours
June 2018 – 99
hours
July 2018 – 88
hours
August 2018 –
110 hours
September 2018
– 88 hours
October 2018 –
99 hours
November 2018
– 55 hours
TOTAL: 1,276
hours

22 PhP500.00/day PhP78.13/hour November 2018 PhP3,178.67

– 33 hours
November PhP62.50/hour PhP7.81/hour
December 2018
2018 – 31
– 77 hours
March January 2019 –
2019 99 hours
February 2019 –
99 hours
March 2019 – 99
hours
TOTAL: 407
hours
01 April PhP900.00/day PhP140.63/hour April 2019 – 99 PhP3,093.20
hours
2019 – 13 PhP112.50/hour PhP14.06/hour
May 2019 – 99
June
hours
2019 June 2019 – 22
hours
TOTAL: 220
hours

TOTAL PhP37,522.91

5. Non-payment of Holiday Pay for overnight work rendered the day before a
holiday and extends to the day of the holiday.
Period Daily Rate and Holiday Premium Hours Money Claim
Hourly Rate Overtime Rate Complainant (Holiday
(Daily Rate/8 (Holiday Hourly worked on Premium
hours) Rate x 230% holidays Overtime Rate
Less regular OT (12:01 am to x Hours
rate) 9:00 am) worked on
holidays
18 PhP429.00/day PhP123.35/hour February 19, PhP506.79
2015 – 9 hours
November PhP53.63/hour Less
2014 – 03 PhP67.04/hour
TOTAL: 9
April =PhP56.31/hour hours
2015

04 April PhP444.00/day PhP127.65/hour April 9, 2015 – PhP5,768.73

9 hours
2015 – 01 PhP55.50/hour Less
June 12, 2015
June PhP69.38/hour
– 9 hours
2016 =PhP58.27/hour July 17, 2015
– 9 hours
August 21,
2015 – 9 hours
September 25,
2015 – 9 hours
November 18,
2015 – 9 hours
November 20,
2015 – 9 hours
December 24,
2015 – 9 hours
 February 25,
2016 – 9 hours
March 24,
2016 – 9 hours
April 9, 2016 –
9 hours
TOTAL: 99
hours

02 June PhP454.00/day PhP130.53/hour July 7, 2016 – PhP2,681.55

9 hours
2016 – 04 PhP56.75/hour Less
September 10,
October PhP70.94/hour
2016 – 9 hours
2017 =PhP59.59/hour December 30,
2016 – 9 hours
January 28,
2017- 9 hours
April 13, 2017
– 9 hours
TOTAL: 45
hours

05 PhP475.00/day PhP136.57 /hour October 31, PhP3,928.05

2017 – 9 hours
October PhP59.38/hour Less
November 30,
2017 – 21 PhP74.22/hour
2017 – 9 hours
November =PhP62.35/hour February 16,
2018 2018 – 9 hours
March 29,
2018 – 9 hours
May 1, 2018 –
9 hours
June 12, 2018
– 9 hours
June 15, 2018
– 9 hours
TOTAL: 63
hours

22 PhP500.00/day PhP143.75/hour February 5, PhP590.58

2019 – 9 hours
November PhP62.50/hour Less
TOTAL: 9 hours
2018 – 31 PhP78.13/hour
March =PhP65.62/hour
2019
 01 April PhP900.00/day PhP258.75/hour April 18, 2019 – PhP2,126.16
9 hours
2019 – 13 PhP112.50/hour Less
May 1, 2019 – 9
June PhP140.63/hour
hours
2019 =PhP118.12/hour TOTAL: 18
hours

TOTAL PhP15,601.86

That despite her unpaid and underpaid salaries and wages,

Complainant served Respondent with utmost loyalty and dedication even at the
risk of her own health by working rigorous hours no human should even be
allowed to. Complainant continued to work even when she was sick or was too
tired to render overtime work for fear of losing her job.

That at the closing of work hours on 08 June 2019, Complainant

was called upon by Respondent Sellado. To her surprise, she was being asked
to sign a document captioned “Unregularization”. Complainant refused to sign
the document and asked instead an explanation as to the contents of the
document. Respondent Sellado repeatedly declined the request for explanation
from the Complainant and told the Complainant, “pirmahan mo na lang, madami
ka pang sinasabi”.

With her last ounce of courage and saving whatever dignity she has
left, Complainant stood her ground and refused to sign the document.
Respondent Sellado then told Complainant, “bahala ka, mananagot ka kay
Boss”, with “Boss” in reference to Respondent Javelona.

On 10 June 2019, Complainant asked permission to take the day off

to seek legal advice regarding the document she was asked to sign. On 11 June
2019, Complainant sought help from the office of “Raffy Tulfo in Action” of TV 5
which referred her to DOLE Pasig Office. The DOLE Pasig Office advised her to
seek clarification from her employer as to what the unregularization document
was all about and if she was terminated to proceed to the National Labor
Relations Commission (NLRC) to file her complaint.

On 13 June 2019, the Complainant reported for work and sought

audience before Respondent Javelona. To her surprised however, Respondent
Javelona told her, “tanggal ka na, huwag ka na magpakita dito. May kapalit ka
na galing TESDA. Bawal ka na pumasok dito. Uutusan ko na yung mga tao ko
na bawal ka na papasukin.” Complainant pleaded for her job and asked what
could she have possibly done wrong to deserved such treatment. Again,
Respondent Javelona repeated those hurtful words, “tanggal ka na. Huwag ka
na makulit. Ayoko na makita pagmumukha mo dito”. Still unsure why she was
being terminated, Complainant continued to plea for her job, fearful of what may
become of her if she loses her source of income. For the third time, Respondent
Javelona repeated his hurtful words, “tanggal ka na nga. Ano pa ba gusto mo
marinig? Gusto mo pa ba ipakaladkad kita palabas?” Seeing that Respondent
Javelona’s facial expression and body language showed intention to make true
of his threats, Complainant asked if she could at least get her separation pay,
her 13th month pay and other benefits to which Respondent Javelona shouted,
“layas!” Frightened by Respondent Javelona’s actuations, Complainant left the
premises embarrassed, hurt, confused and full of anxiety for the uncertainty of
her financial situation.

On 14 June 2019 or immediately the day following she was told by

Respondent Javelona that she was already dismissed, Complainant proceeded
to the Single-Entry Approach (SEnA) of the NCR Arbitration Branch before the
NLRC to file her complaint for illegal dismissal, underpayment of salaries and
wages and non-payment of overtime pay, holiday pay, rest day pay, service
incentive leave, 13th month pay, separation pay, night shift differential, eCOLA,
and retirement benefits. Complainant further alleged that her right to be
regularized was violated and that she is entitled to moral and exemplary
damages. For the reference of the Honorable Labor Arbiter, a copy of the SeNA
Complaint Form is hereto attached as Annex “C-1”.

On 20 and 27 June 2019 and following NLRC Rules, two conferences

before a Conciliator-Mediator was held where the parties failed to reach an
agreement. The case was then referred to Arbitration before the Honorable Labor
Arbiter.

Prior to the conference before the Conciliator-Mediator on 20 June

2019, Complainant suddenly received two letters via LBC from Respondent
Custom/Delta both signed by Respondent Javelona. The first letter, dated 14
June 2019, “inquired” as to the “absence without official notification” of the
Complainant since 10 June 2019 with an order for her to “return to work
immediately”. The second letter, dated 17 June 2019, “notified” the Complainant
of a supposedly “due process form” as to “her failure to notify her supervisor of
her absence” from 10 June 2019 to 15 June 2019. She allegedly committed “a
no call, no show” violation of the company policy and she was being required to
“explain within 5 business days upon receipt of the form why she should not be
issued any corrective action”.

These letters confused the Complainant as she clearly recalled on

how she was terminated and was even threatened to be physically thrown out of
the premises. Seeking clarification, this prompted the Complainant to verify
from Respondent Sellado through Facebook Messenger on what the letters were
all about. Instead of responding, Respondent Sellado blocked her in Facebook
Messenger. For the reference of the Honorable Arbiter, a copy of the
Complainant’s affidavit is attached hereto as Annex “D” where the letter dated
14 June 2017 is attached as Annex “D-1” and the letter dated 17 June 2017 is
attached as Annex “D-2”. Also attached as Annex “D-3” is a screen capture print
out of the Facebook Messenger Message of the Complainant to Respondent
Sellado.

On 14 August 2019, a hearing was held where the Honorable Labor

Arbiter gave the Complainant until 03 September 2019 at 10:00 a.m. to submit
her position paper.

Hence, this position paper.

ISSUES

1. WHETHER THE COMPLAINANT WAS A REGULAR EMPLOYEE.

2. WHETHER THE COMPLAINANT WAS ILLEGALLY DISMISSED AND
WHETHER THE COMPLAINANT WAS AFFORDED THE PROCEDURAL
DUE PROCESS.
3. WHETHER THE COMPLAINANT IS ENTITLED TO
a. SALARY DIFFERENTIAL FOR THE PERIOD SHE WAS PAID BELOW
THE MINIMUM WAGE
b. REST DAY PAY
 c. OVERTIME PAY
d. NIGHTSHIFT DIFFERENTIAL PAY
e. HOLIDAY PAY
f. 13TH MONTH PAY
g. BACKWAGES
h. SERVICE INCENTIVE LEAVE
i. SEPARATION PAY
j. MORAL DAMAGES
k. EXEMPLARY DAMAGES
l. ATTORNEY’S FEES

MOTION FOR PRODUCTION, INSPECTION AND EXAMINATION OF TIME

KEEPING AND PAYROLL RECORDS INCLUDING FINANCIAL BOOKS AND
OTHER PERTINENT DOCUMENTS OF RESPONDENT CUSTOM/DELTA FOR
THE PERIOD NOVEMBER 2014 UP TO JUNE 2019.

Admittedly, majority of the Complainant’s claims can be proven by

records and documents within the custody of Respondent Custom/Delta.
Throughout her employment with Respondent Custom/Delta, the Complainant
has rendered overtime and rest day work some of which overflowed to holidays
and all without the benefit of overtime pay, rest day pay, nightshift differential
and holiday pay.

As part of this complaint for illegal dismissal, the Complainant now

asks for the wisdom of the Honorable Arbiter to order the Production, Inspection
and Examination of Time Keeping and Payroll Records including Financial Books
and other pertinent documents of Respondent Custom/Delta for the period
November 2014 to June 2019.

Section 1, Rule 27 of the Rules of Court provides:

SECTION 1. Motion for production or inspection; order. – Upon motion of
any party showing good cause therefor, the court in which an action is
pending may (a) order any party to produce and permit the inspection and
copying or photographing, by or on behalf of the moving party, of any
designated documents, papers, books, accounts, letters, photographs,
objects or tangible things, not privileged, which constitute or contain
evidence material to any matter involved in the action and which are in his
 possession, custody or control; or (b) order any party or permit entry upon
designated land or other property in his possession or control for the
purpose of inspecting, measuring, surveying, or photographing the
property or any designated relevant object or operation thereon. The order
shall specify the time, place and manner of making the inspection and
taking copies and photographs, and may prescribe such terms and
conditions as are just.

The modes of discovery are accorded a broad and liberal treatment.

Rule 27 of the Revised Rules of Court permits "fishing" for evidence, the only
limitation being that the documents, papers, etc., sought to be produced are not
privileged, that they are in the possession of the party ordered to produce them
and that they are material to any matter involved in the action. The lament
against a fishing expedition no longer precludes a party from prying into the facts
underlying his opponent’s case. Mutual knowledge of all relevant facts gathered
by both parties is essential to proper litigation.1

At this juncture we would like to invoke the suppletory application

of the Rules of Court in labor cases2 so that the ends of justice may be served.

FIRST ISSUE: The Complainant was a regular employee.

Respondent Custom/Delta attempts to give the impression that the

Complainant was offered a regular position only on 01 April 2019 and which
regular status was abrupted by her separation from the company in June 2019.
Nothing can be farther from the truth.

Article 295 of the Labor Code classifies employees into regular,

project, seasonal and casual:

Art. 295. 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 to be regular where the employee has been
engaged to perform activities which are usually necessary or desirable in the usual
business or trade of the employer, except where the employment has been fixed for
a specific project or undertaking the completion or termination of which has been

1
Solidbank Corporation vs. Gateway Electronics Corporation, G.R. No. 164805, 30 April 2008.
2
2005 Revised Rules of Procedure of the National Labor Relations Commission, Section 3. Suppletory Application of
the Rules of Court. - In the absence of any applicable provision in these Rules, and in order to effectuate the
objectives of the Labor Code, the pertinent provisions of the Rules of Court of the Philippines may, in the interest of
expeditious dispensation of labor justice and whenever practicable and convenient, be applied by analogy or in a
suppletory character and effect.
 determined at the time of the engagement of the employee or where the work or
service to be performed is seasonal in nature and the employment is for the duration
of the season.

An employment shall be deemed to be casual if it is not covered by the preceding

paragraph: Provided, That any employee who has rendered at least one year of
service, whether such service is continuous or broken, shall be considered a regular
employee with respect to the activity in which he is employed and his employment
shall continue while such activity exists.

(emphasis supplied)

The provision classifies regular employees into two kinds (1) those
"engaged to perform activities which are usually necessary or desirable in the
usual business or trade of the employer"; and (2) casual employees who have
"rendered at least one year of service, whether such service is continuous or
broken."

To determine whether an employee is a regular employee, the

decision of the Supreme Court in University of Santo Tomas vs. Samahang
Manggagawa ng UST3 citing Kimberly Independent Labor Union for Solidarity,
Activism, and Nationalism – Organized Labor Association in Line Industries and
Agriculture (KILUSAN-OLALIA) v. Drilon4 is instructive, to wit:

The primary standard, therefore, of determining regular employment is the

reasonable connection between the particular activity performed by the employee in
relation to the usual trade or business of the employer. The test is whether the
former is usually necessary or desirable in the usual business or trade of the
employer. The connection can be determined by considering the nature of work
performed and its relation to the scheme of the particular business or trade in its
entirety. Also, if the employee has been performing the job for at least a year,
even if the performance is not continuous and merely intermittent, the law
deems repeated and continuing need for its performance as sufficient
evidence of the necessity if not indispensability of that activity to the
business. Hence, the employment is considered regular, but only with
respect to such activity and while such activity exists.

(emphasis supplied)

3
G.R. No. 184262, 24 April 2017.
4
263 Phil. 892, 905 (1990).
 A quick view of the official website of Respondent Delta5 is that it is
clear that it is engaged in the business of manufacturing sportwear for basketball
and other sports. It even has a clickable link for “Customized Order”. For the
reference of the Honorable Arbiter, a screen capture printout of the Custom
Order Page from the official website of Respondent Delta is hereto attached as
Annex “E”. To manufacture sportswear, it is not rocket science to infer that the
business requires the employment of a skilled sewer, exactly the job performed
by the Complainant for the Respondent. The Complainant is performing a
function that is usually necessary or desirable in the usual business or trade of
the employer. Further, the Complainant has performed the same function for a
period of more than one year in the continuous manner or specifically for a period
of four (4) years, six (6) months and twenty (20) days before she was
unceremoniously booted out.

Without the Complainant or people like her performing the same

function as the Complainant, Respondent would not be in the business of
manufacturing of sportswear. It may still be involved in the business of
marketing of sportswear but definitely it won’t be in the business of
manufacturing sportswear.

Thus, irrespective of whether the original employment contract of

the Complainant was designated as “Contract for Services”, the designation
accorded by Respondent Custom/Delta is of no bearing as according to
jurisprudence, the principal test for determining whether particular employees
are properly characterized as contractual or "project[based] employees" as
distinguished from "regular employees," is whether or not the employees were
assigned to carry out a "specific project or undertaking," the duration (and
scope) of which were specified at the time they were engaged for that project. The
project could either be (1) a particular job or undertaking that is within the
regular or usual business of the employer company, but which is distinct
and separate, and identifiable as such, from the other undertakings of the
company; or (2) a particular job or undertaking that is not within the regular
business of the corporation. In order to safeguard the rights of workers against
the arbitrary use of the word "project" to prevent employees from attaining a
regular status, employers claiming that their workers are project[-based]
employees should not only prove that the duration and scope of the

5
www.deltasportswear.com.ph
employment was specified at the time they were engaged, but also, that
there was indeed a project.6

In this case, nowhere in the Complainant’s Contract for Services

(Annex “A”) did it indicate that the Complainant was being engaged only for a
specific duration and scope. This leads to no other conclusion that the
Complainant was hired as a regular employee since 18 November 2014.

SECOND ISSUE: The Complainant was illegally dismissed as there was both
no proper procedure in her termination and there was no grounds as well.

Respondent Custom/Delta through its manager Sellado and owner

Javelona attempted to make it appear that they followed due process in
implementing the dismissal of Complainant on the basis of abandonment of
work. They however, are simply applying a belated remedy to a problem they
have already created. They have simply put the cart before the horse.

The Supreme Court in a long line of cases has provided rules on the
proper determination on whether an employee is liable for abandonment.
Abandonment is a matter of intention and cannot lightly be presumed from
certain equivocal acts.7 It is incumbent upon the employer to prove the two
elements that must concur in order for an act to constitute abandonment: First,
respondents must provide evidence that petitioners failed to report for work for
an unjustifiable reason. Second, respondents must prove petitioners' overt acts
showing a clear intention to sever their ties with their employer,8 with the second
element as the more determinative factor, and being manifested by some overt
acts.

In this case, it is important to revisit the chronology of events as to

why the Complainant filed a complaint for illegal dismissal.

First, the Respondents coerced the Complainant to sign a document

captioned “unregularization” on 08 June 2019 which prompted the Complainant

6
University of Santo Tomas vs. Samahang Manggagawa ng UST, supra.
7
Froel M. Pu-od vs. Ablaze Builders, Inc. G.R. No. 230791, 20 November 2017 citing JOSAN, et. al., vs. Aduna, 682
Phil. 641, 648 (2012).
8
Froel M. Pu-od vs. Ablaze Builders, Inc. supra citing Protective Maximum Security Agency, Inc. vs. Celso Fuentes,
753 Phil. 482, 508 (2015).
to seek legal advice. Second, when the Complainant sought audience with
Respondent Javelona on 13 June 2019 to inquire on what the “unregularization”
document was all about as per the advised of DOLE Pasig, Respondent Javelona
repeatedly told Complainant that she has already been dismissed and was
threatened to be physically thrown out of the premises. Thus, leading the
Complainant to file the illegal dismissal with the NLRC on 14 June 2019.

Upon realizing that the Complainant has already sought legal advice
from DOLE Pasig with the instruction to file a case for illegal dismissal if she was
already terminated, the Respondents sent letters dated 14 June 2019 and 17
June 2019 in an attempt to establish documentary evidence of their innocence
as to why the Complainant has not been reporting for work and accordingly
justify her eventual termination on the basis of abandonment. These fraudulent
ploy by the Respondents must fail.

First, considering how the Complainant endured grueling hours and

abusive behavior from Respondent Javelona for over four years, it is clear that
Complainant has no intention to abandon her work. The fact is she did not. She
would have still stayed with Respondent Delta if she was not unceremoniously
booted out.

Second, the two letters in fact despite the dates indicated therein
were all sent AFTER the Complainant has already filed the case for illegal
dismissal or after 14 June 2019. As can be inferred from the screen capture
printout of the facebook messenger chat exchanges between the Complainant
and Respondent Sellado (Annex “D-3”), the last message of Respondent Sellado
to the Complainant was on 15 June 2019 at 7:21 am. At this point, the
Complainant has not yet received the letters dated 14 June 2019 (Annex “D-1”)
and dated 17 June 2019 (Annex “D-2”). It was in fact only on 18 June 2019 that
the Complainant received the letters prompting her to message Respondent
Sellado on 19 June 2019 at 6:30 a.m. Please note that before the messages of
the Complainant to Respondent Sellado, the time “6:30 AM” is clearly indicated.
To further illustrate this point, please find the file information (Annex “D-3A”) of
the said screen capture file which indicates that the file was created on 19 June
2019 at 7:29 a.m.
 Thirdly, if the two letters were indeed made innocently and that the
Respondents were truly unaware as to the whereabouts of the Complainant for
the periods 10 June 2019 to 15 June 2019, why did Respondent Sellado choose
to ignore the Complainant’s queries when she confronted him through Facebook
Messenger? For the record, these messages were all indicated with a check mark
as proof that these messages were received by Respondent Sellado. If indeed the
Complainant is merely concocting a story that she was summarily dismissed,
Respondent Sellado, consistent with the virtue of honesty, should have
responded accordingly to the Complainant when the latter sent him the following
messages:

a. “Kirby ano ung mga letter na pinadala nyo. Alam mo sa sarili mo na tinangal ako
ni destine tapos pumunta ako dyan ng Thursday para siguraduhin na tinangal na
nya ako tapos ngayon papadalhan mo ako ng letter na AWOL ano pra saan yn.”
b. “3beses ko inulit sa kanya kung tangal na akp sabi nya oo daw kasi may padating
na kapalit ako galing tesda.”
c. “Alam mon man yun diba ikaw panga nagpapapirma sakin ng
UNREGULARIZATION KASI SABI MO UTOS NI BOSS MO.”
d. “At alam mo din na pumunta ako dyan nung Thursday kasi pinapunta ako ng dole
para tanungin si destine kung ano ibig sabihin ng unregularization ikaw pa
nagpapasok sakin sa showroom at si ruiz dalawa kayong nakakita sakin na
pumunta dyan nung THURSDAY JUNE 13 2019.”
e. “Nakalagay pa sa letter mo no call no show.”

Clearly, the letters dated 14 June 2019 and 17 June 2019 are
nothing but a belated and fraudulent attempt to justify the illegal dismissal of
the Complainant. Why would an employee file a complaint for illegal dismissal
and received a return to work order after such filing? What the Respondents
would have us believe is that an employee who endured years of hardships and
abuse from her employer due to fear of losing her only source of income would
suddenly just abandon her work for no reason while at the same time file a
complaint for illegal dismissal AHEAD of the employer’s issuance of a return to
work order.

The facts of this case fall squarely with another case decided by the
Supreme Court. In Demex Rattancraft, Inc. vs. Rosalio A. Leron9, the Supreme
Court ruled as follows:

9
G.R. No. 204288, 08 November 2017.
 Petitioners point to respondent's absences, non-compliance with the return-to-work
notices, and his alleged act of crumpling the first return-to-work notice as indicators
of abandonment. These acts still fail to convincingly show respondent's clear and
unequivocal intention to sever his employment.

Respondent filed an illegal dismissal case against petitioners on June 29,

2006, the day after he was unceremoniously dismissed by his superiors on
June 28, 2006. Petitioners deny respondent's arbitrary dismissal and
claim that respondent abandoned his work starting June 28, 2006.

Petitioners' narrative would mean that respondent instituted an illegal

dismissal complaint right after his first day of absence. This is illogical.
There was no unequivocal intent to abandon. Respondent even pursued the
illegal dismissal case after it was dismissed without prejudice on the ground of
improper venue.

Respondent's non-compliance with the return-to-work notices and his alleged act of
crumpling the first return-to-work notice are equivocal acts that fail to show a clear
intention to sever his employment. Strained relations caused by being legitimately
disappointed after being unfairly treated could explain the employee's hesitation to
report back immediately. If any, his actuations only explain that he has a grievance,
not that he wanted to abandon his work entirely.

(emphasis supplied)

In this case, the Complainant first sought legal advice as to how to

proceed after being asked to sign a document captioned “unregularization”. It
was only after receiving instruction from DOLE Pasig to return to her employer
to seek clarification as to what the document captioned “unregularization” was
all about was she clearly told that she was already dismissed. The next day, she
filed a complaint for illegal dismissal. While the Respondents are clearly trying
to create a different picture, yet Respondent Sellado failed to answer the
Complainant when confronted with the facts.

It is thus important to ignore the fraudulent attempt of the

Respondents to justify termination on the basis of abandonment. Rather, the
important question that should be addressed is that was the procedural
requirement of two notice rule followed in the summary dismissal of the
Complainant on 13 June 2019 by Respondent Javelona?

Valid termination requires the employer to send an initial notice to

the employee, stating the specific grounds or causes for dismissal and directing
the submission of a written explanation answering the charges. After considering
the employee's answer, the employer must give another notice informing the
employee of the employer's findings and reason for termination. These are the
operative acts that terminate an employer-employee relationship.10

Firstly, there was no first notice to speak of. The Complainant was
not informed of any wrongdoing she may have committed and upon which she
was being investigated. Secondly, there was also no second notice to speak of.
The Complainant was just verbally told by Respondent Javelona that she was
already dismissed. Thus, clearly there was no compliance to the two-notice rule
in this case. Not only was there absence of one notice, but there was in fact
absence of both notices as Respondent Javelona choose to act as if we are not a
society of laws.

The next question that should be addressed is that did the

Complainant commit acts that gave grounds for Respondent to dismiss her
employment? The answer is very simple, there was NONE.

This is why the Respondents resorted to verbal termination, told her

to stop reporting for work and used the same fact of her cessation of reporting
to work as an act of abandonment. If we allow employers to justify the
termination of their employees in this manner, then we are simply allowing a
mockery of our labor laws.

The truth is the Complainant performed her duties with utmost

dedication and commitment. She never, not even once, complained of the
grueling hours that she was required to work and did not likewise complain when
she was underpaid for her basic salary and not paid of her overtime pay, rest
day pay, holiday pay, night shift differential, service incentive leave and 13th
month pay. She suffered in silence out of fear of losing her only source of income.
She never answered back to the abusive behavior of Respondent Javelona as she
only wanted to keep her job. Sadly, her years of sacrifice and loyalty are now
being paid with further oppression.

THIRD ISSUE: The Complainant is entitled to the following:

a. SALARY DIFFERENTIAL FOR THE PERIOD SHE WAS PAID
BELOW THE MINIMUM WAGE
b. REST DAY PAY

10
Demex Rattancraft, Inc. vs. Rosalio A. Leron, supra.
 c. OVERTIME PAY
d. NIGHTSHIFT DIFFERENTIAL PAY
e. HOLIDAY PAY
f. 13TH MONTH PAY
g. BACKWAGES
h. SERVICE INCENTIVE LEAVE
i. SEPARATION PAY
j. MORAL DAMAGES
k. EXEMPLARY DAMAGES
l. ATTORNEY’S FEES

SALARY DIFFERENTIAL FOR THE PERIOD SHE WAS PAID BELOW THE
MINIMUM WAGE

In claims for payment of salary differential, service incentive leave,

holiday pay and 13th month pay, the burden rests on the employer to prove
payment. This standard follows the basic rule that in all illegal dismissal cases
the burden rests on the defendant to prove payment rather than on the plaintiff
to prove non-payment. This likewise stems from the fact that all pertinent
personnel files, payrolls, records, remittances and other similar documents -
which will show that the differentials, service incentive leave and other claims of
workers have been paid - are not in the possession of the worker but are in the
custody and control of the employer.11

In this case, it is clear that comparing the salary of the Complainant

as indicated in Annex “A” and the prescribed minimum wage for the National
Capital Region for period covering 01 January 2014 up to the current date
(Annex “B”), the Complainant was receiving a wage lower than the prescribed
minimum from 18 November 2014 to 31 March 2019. Accordingly, the
Complainant is entitled to receive a salary differential in the amount of
PhP117,353.00 with breakdown as previously shown.

REST DAY PAY

It is settled that once the employee has set out with particularity in
his complaint, position paper, affidavits and other documents the labor standard

11
Reyman G. Minsola vs. New City Builders, Inc., G.R. No. 207613, 31 January 2018.
benefits he is entitled to, and which the employer failed to pay him, it becomes
the employer's burden to prove that it has paid these money claims. Once more,
he who pleads payment has the burden of proving it; and even where the
employees must allege nonpayment, the general rule is that the burden rests on
the defendant to prove payment, rather than on the plaintiff to prove
nonpayment.12

In her claim for Rest Day Pay, the Complainant relies on her
employment contract (Annex “A”) which indicates that her work schedule is only
supposed to be from Monday to Friday. In reality, however, the Complainant
was required to report for work even during Saturdays. The last time that she
reported for work prior to her termination on 13 June 2019 is in fact on 08 June
2019 – a Saturday.

The Complainant however has no time card to show as Respondent

Custom/Delta never required its employees to record their attendance in a time
card. The employees of the Respondent were merely required to sign on a log
book. The log book records their time of arrival in the morning and their exit in
the evening. The employees are likewise not issued payslips but rather were only
required to sign on a log book to indicate receipt of payment for the salary period.

The Complainant is hereby attesting to the truth of her claim that

she worked regularly every Saturday – her rest day, for the whole duration of her
employment with Respondent Custom/Delta and that she was never paid her
rest day pay during the whole duration of her employment. The Complainant
therefore prays before the Honorable Arbiter to order Respondent Custom/Delta
to produce its log book from 2014 to the current year as proof of her coming and
going to prove that she is therefore entitled for her claim of rest day at the amount
of PhP 143,872.60 with breakdown as earlier provided.

OVERTIME PAY

Similarly as in the claim for Rest Day Pay, the Complainant takes
refuge in the ruling of the Supreme Court in Symex Security Services, Inc. vs.
Magdalino O. Rivera, Jr., 13 that since the records are in the custody of

12
Symex Security Services, Inc. vs. Magdalino O. Rivera, Jr., G.R. No. 202613, 08 November 2017.
13
supra.
Respondent Custom/Delta, unless the Honorable Arbiter grants the motion of
the Complainant to order the Respondent to produce its log book and other office
documents in relation to payroll and time keeping, the Complainant can only
attest to the truth of her claim that she regularly rendered overtime work once a
week for at least one (1) hour, twice a week for at least four (4) hours and twice
a week for at least fifteen (15) hours. She is therefore entitled to her claim of
overtime pay at the amount of PhP670,977.20 with breakdown as earlier
provided.

NIGHTSHIFT DIFFERENTIAL PAY

Again, as in the claim for Rest Day Pay, the Complainant takes
refuge in the ruling of the Supreme Court in Symex Security Services, Inc. vs.
Magdalino O. Rivera, Jr., 14 that since the records are in the custody of
Respondent Custom/Delta, the Complainant can only attest to the truth of her
claim that she has rendered overtime work and that some of these overtime work
went beyond 10:00 p.m. and to the next working day at 9:00 a.m. The
Complainant is therefore entitled to a Nightshift Differential Pay of PhP37,522.91
with breakdown as earlier provided.

HOLIDAY PAY

At this point, the Complainant would like to take refuge in the

wisdom of the decision of the Supreme Court in Reyman G. Minsola vs. New City
Builders, Inc.,15 that since the records are in the custody of Respondent
Custom/Delta, the Complainant can only attest to the truth of her claim that
she has rendered work on holidays. The Complainant is therefore entitled to a
Holiday Pay of PhP15,681.86 with breakdown as earlier provided.

13th MONTH PAY

Again, the Complainant would like to take refuge in the wisdom of

the decision of the Supreme Court in Reyman G. Minsola vs. New City Builders,
Inc. and attest to her claim that in all her years with Respondent Custom/Delta,
she was never paid her 13th Month Pay despite her being a regular employee.

14
supra.
15
supra.
The Complainant is therefore entitled to her 13th Month Pay with the following
breakdown:

Year Period Covered Wage Pro Rata 13th

Month Pay
2014 18 November 31 December PhP429.00 PhP1,022.45
2014 2014
2015 01 January 31 December PhP429.00 PhP9,685.50
2015 2015 (up to 03 April 2015)
PhP444.00
(up to 31 December
2015)
2016 01 January 31 December PhP444.00 PhP9,878.00
2016 2016 (up to 01 June 2016)
PhP454.00
(up to 31 December
2016)
2017 01 January 31 December PhP454.00 PhP10,103.50
2017 2017 (up to 04 October
2017)
PhP475.00
(up to 31 December
2017)
2018 01 January 31 December PhP475.00 PhP11,378.12
2018 2018 (up to 21 November
2018)
PhP500.00
(up to 31 December
2018)
2019 01 January 13 June 2019 PhP500.00 PhP6,710.00
2019 (up to 31 March 2019)
PhP900.00
(up to 13 June 2019)
TOTAL PhP48,777.57

BACKWAGES
 Under Article 279 of the Labor Code, as amended by Republic Act
No. 6715, an employee who is unjustly dismissed shall be entitled to (1)
reinstatement without loss of seniority rights and other privileges; and, (2) full
backwages, inclusive of allowances, and to other benefits or their monetary
equivalent computed from the time his compensation was withheld up to the
time of actual reinstatement.16

Accordingly, as the Complainant was illegally dismissed on 13 June

2019, she should be granted full backwages computed from the time her
compensation was withheld up to the time of actual reinstatement.

SERVICE INCENTIVE LEAVE

Art. 95. Right to service incentive. (a) Every employee who has
rendered at least one year of service shall be entitled to a yearly service incentive
leave of five days with pay.

(b) This provision shall not apply to those who are already enjoying
the benefit herein provided, those enjoying vacation leave with pay of at least five
days and those employed in establishments regularly employing less than ten
employees or in establishments exempted from granting this benefit by the
Secretary of Labor and Employment after considering the viability or financial
condition of such establishment.

In this case, the Complainant has rendered more than one year of
service and that Respondent Delta cannot invoke the exemption as it employs
more than twenty (20) employees and does not provide vacation leave to its
employees.

SEPARATION PAY

As previously discussed, an illegally dismissed employee has two

mutually exclusive remedies, one for payment of backwages and two for
reinstatement. Separation is granted however, in cases reinstatement is no
longer possible. Jurisprudence extrapolated from this provision instructs that

16
Peak Ventures Corporation vs. Heirs of Nestor B. Villareal, G.R. No. 184618, 19 November 2014.
separation pay may be awarded to an illegally dismissed employee in lieu of
reinstatement. Over time, the following reasons have been advanced by the
Court for allowing this alternative remedy: that reinstatement can no longer be
effected in view of the long passage of time or because of the realities of the
situation; or that it would be 'inimical to the employer's interest;' or that
reinstatement may no longer be feasible; or, that it will not serve the best
interests of the parties involved; or that the company would be prejudiced by
the workers' continued employment; or that it will not serve any prudent purpose
as when supervening facts have transpired which make execution on that score
unjust or inequitable or, to an increasing extent, due to the resultant
atmosphere of 'antipathy and antagonism' or 'strained relations' or
'irretrievable estrangement' between the employer and the employee.17

In this case, other than how cruel the Complainant was treated in
Respondent Delta, especially by Respondent Javelona, it would no longer serve
the best interest of the parties for the Complainant to be reinstated as the
Complainant has also reported Respondent Delta and its owner Respondent
Javelona to the Social Security System for non-payment of her SSS benefits.
Violation of the law under Republic Act 8282 carries with it the penalty of
imprisonment of at least six years. A copy of the complaint is hereto attached
as Annex “F”.

Considering that Respondent Javelona has not paid the SSS benefits
of his employees for several years, there is a very strong likelihood that he will
suffer the penalty imposed under RA 8282. To require the Complainant to be
reinstated would only make the Complainant work in an atmosphere of
antipathy and antagonism or strained relations or irretrievable estrangement
between her and her employer.

MORAL DAMAGES

The nature of moral damages is defined under our Civil Code. Article
2220 states that "[w]illful injury to property may be a legal ground for awarding
moral damages if the court should find that, under the circumstances, such
damages are justly due. The same rule applies to breaches of contract where the
defendant acted fraudulently or in bad faith.

17
Abbott Laboratories Philippines, Inc. vs. Manuel F. Torralba vs. G.R. No. 229746, 11 October 2017.
 The employee is entitled to moral damages when the employer acted
a) in bad faith or fraud; b) in a manner oppressive to labor; or c) in a manner
contrary to morals, good customs, or public policy. Bad faith "implies a
conscious and intentional design to do a wrongful act for a dishonest purpose or
moral obliquity."18

In this case, Respondent Delta and its owner Respondent Javelona

acted in a manner contrary to morals, good customs, or public policy and
oppressive to labor when they required the Complainant to render work beyond
eight hours and during Saturdays, the rest day of the Complainant, all without
pay and preventing the Complainant from recording her actual overtime work by
not allowing her to record her actual log out. Further, Respondent Delta through
its manager Respondent Sellado and its owner Respondent Javelona acted in
bad faith when they coerced the Complainant to sign the document captioned,
“unregularization”, order the Complainant to stop reporting for work as she has
already been dismissed then used that cessation of attending work as a ground
to justify termination of the Complainant on the basis of abandonment.
Accordingly, Complainant hereby ask that moral damages in the amount of
PhP100,000.00 similar to what was granted in Nancy S. Montinola vs. Philippine
Airlines19, be also granted to her. It should be further remembered that
Complainant was repeatedly subjected to the abusive behavior of Respondent
Javelona causing her to experience wounded feelings and sleepless nights.

EXEMPLARY DAMAGES

Taking into consideration of the long term abuse and disregard of so

many labor laws committed by Respondent Custom/Delta through its manager
Respondent Sellado and owner Respondent Javelona, it is imperative that the
authorities send a strong signal that violation of labor laws of this magnitude
shall be dealt with accordingly. The Complainant is hereby asking the Honorable
Arbiter to grant an exemplary damages of PhP1,000,000.00.

ATTORNEY’S FEES

18
Nancy S. Montinola vs. Philippine Airlines, G.R. No. 198656, 08 September 2014.
19
supra.
 Article 111 of the Labor Code, as amended, governs the grant of
attorney’s fees in labor cases:

Art. 111. Attorney’s fees. – (a) In cases of unlawful withholding of wages, the
culpable party may be assessed attorney’s fees equivalent to ten percent of the
amount of wages recovered.

Emphasis supplied

As the Complainant was forced to litigate for her right and hired the
services of a lawyer, the Complainant hereby invoke that she be granted
attorney’s fees equivalent to ten percent of the amount of wages recovered.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Complainant hereby

prays for the following:

a. That the Honorable Labor Arbiter issue an order for the Production,
Inspection and Examination of the Respondent’s time keeping and payroll
records including all financial and other pertinent documents to prove the
money claims of the Complainant that she has rendered overtime and rest
day work without the benefit of overtime pay, rest day pay, nightshift
differential pay, holiday pay and that Complainant was likewise not paid
her service incentive leave and 13th month pay.
b. That a decision be rendered finding the Complainant to be a regular
employee of Respondent Custom/Delta.
c. That a decision be rendered finding the Complainant illegally dismissed
for there being no legal grounds to validly dismiss her and further, for
failure to properly observe the requirements of the two-notice rule.
d. That a decision be rendered finding the Complainant entitled to:
a. Salary differential in the amount of PhP117,353.00 for having been
paid a salary below the prescribed minimum wage for several years.
b. Rest Day Pay in the amount of PhP143,872.60 for having been
required to work even during Saturdays, the designated rest day of
the Complainant and not having been paid thereto.
c. Overtime Pay in the amount of PhP670,977.20 for having been
regularly working overtime for a period of one hour at least once a
 week, for a period of four hours at least twice a week and for a period
of fifteen hours at least twice a week.
d. Nightshift Differential Pay in the amount of PhP37,522.91 for having
been required to work beyond 10:00 p.m. and up to 9:00 a.m. the
following day.
e. Holiday Pay in the amount of PhP15,681.86 for having been required
to work even during Holidays.
f. 13th Month Pay in the amount of PhP48,777.57 for not having been
paid a single centavo of 13th Month Pay in all her years with
Respondent Custom/Delta.
g. Backwages for computed from the time her compensation was
withheld up to the time of actual reinstatement.
h. Service Incentive Leave as provided under Art. 95 of the Labor Code
as amended.
i. Separation Pay instead of Reinstatement due to strained relations of
the Complainant with her former employer.
j. Moral Damages in the amount of PhP100,000.00 for her wounded
feelings and sleepless nights due to the bad faith and fraudulent
behavior of Respondents Sellado and Javelona.
k. Exemplary Damages in the amount of PhP1,000,000.00 against
Respondent Custom/Delta for having violated so many labor laws.
l. Attorney’s Fees equivalent to 10% of the amount of wages recovered.

Other reliefs just and equitable under the premises are also prayed
for.

RESPECTFULLY SUBMITTED.

Quezon City, 03 September 2019.

KARL KRISTJAN B. MORO

Counsel for Complainant
3600 P. Cortez St., Pinagkaisahan, Makati
Roll of Attorneys No. 64581
PTR No. 7371674 / 01-21-2019 / Makati
IBP No. 070342 / 01-21-2019 / Manila II
MCLE Compliance No. VI-0003934
(valid until 14 April 2022)
E-mail: [email protected]
Mobile No. 0920 971 9193
REPUBLIC OF THE PHILIPPINES )SS
CITY OF MAKATI )

VERIFICATION

I, LOURDES ESPLAGO FRILLES, of legal age, Filipino, single and a

resident of 9424 F. Felipe St., Guadalupe Nuevo, Makati City, avers under oath
that:

a. I am the Complainant in NLRC-NCR-CASE-NO. 06-11558-19, a

complaint for ILLEGAL DISMISSAL;
b. I caused the preparation of the foregoing Position Paper;
c. I have read and understand the contents therein;
d. I certify that the allegations therein are true and correct of my personal
knowledge or based on authentic records.

02 September 2019, Makati City.

LOURDES ESPLAGO FRILLES

Affiant

SUBSCRIBED AND SWORN to before me this 2nd day of September

2019 in Makati City, affiant exhibiting to me her Social Security System ID No.
03-4794640-3.

Doc. No. ________________;

Page No. ________________;

Book No. ________________;

Series of 2019