Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch no. VII
Cebu City

RAB VII-12-2520-16

JOSE AVENCENA,
Complainant,

-versus-

ROGER BUS CORPORATION, AND/OR

ALAN REYES,
Respondents.

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

POSITION PAPER FOR COMPLAINANT

COMPLAINANT, by the undersigned counsel and unto this Honorable Labor Arbitration Office, most
respectfully submits this position paper and avers the following to wit:

PRELIMINARY STATEMENT
Section 3, Article XII of the 1987 Philippine Constitution provides that it is the policy of the state to
assure the right of workers to “security of tenure”. Artilce 294 of the Labor Code has construed security
of tenure which means “the employer shall not terminate the services of an employee except for a just
cause or when authorized by the Code. Further, due process shall be accorded to the employees, if such is
not properly complied with, then there is an arbitrary deprivation of the fundamental guarantee of security
of tenure and due process when one should be entitled of protection as provided by law.
This is a case for illegal dismissal, underpayment of wages, non- payment of overtime pay and other labor
benefits filed herein by Complainant against the Respondent.
As reliefs, Complainant seeks for his reinstatement without loss of privileges under the law and the
payment of their unpaid salaries and wages, and other labor standards, or their monetary equivalent
computed from the time his compensation was withheld up to the finality of the decision in this case.

PARTIES TO THE CASE

The Complainant in this case is JOSE AVENCENA (“AVENCENA”), of legal age, married and a
resident of San Remigio, Cebu. He is being represented by Atty. Klaire Ciarra G. Sangco with law office
Para Illegal Services address at Barba Press Bldg., Osmena Blvd., Cebu City. Summons and other legal
processes may be served to the Complainant’s address or thru his counsel in their addresses as indicated
above.
The Respondent, ROGER BUS CORPORATION (“ROGER BUS”), is a domestic corporation
engaged in the business of transportation with its principal place of business at F. Ramos Street, Cebu
City. Individual respondent ALAN REYES (“REYES”) is its Operations Manager of said corporation.
Respondents are being represented by Atty. Abogwapo P. Botbot, with his law office address at Don
Gervacio St., Guadalupe, Cebu City.

ANTECEDENT FACTS
The Complainant was hired as a driver on November 5, 2010 by Respondent Roger Bus. The business
undertaking of the latter is engaged in transportation.
Complainant worked from from 4:00 o’clock am to 5:00 o’clock pm Mondays to Sundays without any
rest day and was only paid P 141.00 per day. He was paid weekly every Thursday of the week.

Complainant, though not provided with a company ID, he had attached pictures of him wearing his
uniforms, that for several year were issued to him, to prove that he was indeed employed as a driver
thereat.
Complainant was not provided with payslips as it is the practice of the company that their wages are
just placed in a small brown envelope with the computation written thereon. After the money is taken,
respondent’s staff will get back the envelope without giving their employee a summary of what is paid to
them.
Sometime in 2012, Respondent’s employees were provided with a piece of paper written in it is their
salary. However, that was only for that year. Years thereafter, they were not allowed to retain a copy of
the summary of their wages. Further, in his years of service, the complainant was never provided with the
benefits that he is entitled to receive under the law such as 13th Month Pay, service incentive leave pay
benefits and holiday pay.
Sometime in November 2016 while he was off-duty (beyond 5:00 o’clock pm), he was told by his
“konduktor” to have a drink as the latter was drinking beer. Since he was off-duty and to show respect to
the offer, the complainant did have two (2) shots before going home to take his rest.
 on 17 November 2016, the Complainant was dismissed. He just found out that the same “konduktor”
told respondent REYES about their drinking session and that the complainant became too drunk. He
denied being so for he only took two (2) shots and left.
Complainant was told by respondent REYES that he was no longer allowed to drive and work as
a driver of respondent ROGER BUS. Because of this, the complainant sought legal assistance.
Moreover, although the Complainant was asked to report back for work without any financial
assistance during the mandatory conferences, he could not do so as there was a threat that something will
happen to him if he will report back, as ordered by the company officers.
ISSUES
Whether or not the Complainant is an employee of respondent Roger Bus.
Whether or not the complainant was illegaly dismissed.
Whether or not the Complainant is entitled to his claim for wage differentials, overtime pay, 13th month
pay, holiday pay and other benefits.

DISCUSSION
Whether or not the Complainant is an employee of respondent Roger Bus.
From the foregoing facts, it is clear that the Complainant was an employee of the Respondent.
The Supreme Court ruled in the case of Halipot vs. Jade Palace Restaurant (GR. No. 209363, nov. 10,
2014) that in the ascertainment of the existence of an employer- employee relationship, the four- fold test
must be applied, to wit: 1) the selection and engagement of the employee; 2) the payment of wages; 3) the
power of dismissal; and 4) the power to control the employee’s conduct.
The facts provided that the Respondent hired the Complainant as a driver and even was issued several
uniforms, hence the element of power to select and engage employees is present. Other elements are
present as well as it was the respondent which paid the wages and salaries of the Complainant, and the
exercise of power of dismissal was also shown.
Of these four, the last one is the most important. The so called “control test” is commonly regarded as the
most crucial and determinative indicator of an employer- employee relationship.
Here, the said test is present between the Complainant and the Respondent. The Complainant is required
to work from 4:00 o’clock am to 5:00 o’clock pm Mondays to Sundays without any rest day and was
only paid P 141.00 per day. He was paid weekly every Thursday of the week. He was even to strictly
adhere to the rules and the regulations of the said Respondent. Moreso, he was working at the
respondent’s for more than 5 years which could be a reasonable period to establish an employer-
employee relationship.
Therefore, the Complainant was an employee of the said respondent.

2. Whether or not the complainant was illegaly dismissed.

The facts have shown that the complainant was dismissed illegaly.
It was ruled in the case of Loadstar Shipping Co. Vs. Mesano (455 PHIL 936- 943 (2003)), that in order
to constitute a valid dismissal, two requisites must concur: 1) the dismissal must be for any of the causes
expressed in Article 282 of the Labor Code; and 2) the employee must be accorded due process, basic of
which is the opportunity to be heard and to defend himself. Further, substantantive and procedural due
process musbr bt complied with before a dismissal can be considered valid.
The facts have shown that employees are to follow rules and regulations provided by their employer. In
this case, the Respondent has an strict implemetation on prohibition on the intake of alcoholic beverages
and illegal drugs by bus drivers and other crew members of every bus unit. And such violation of
company rules and regulations may be a ground for dismissal or termination of employment.
However, in the case of Sampaguita Auto Transport Corporation vs. National Labor Relations
Commission, 689 SCRA 777, (2013), the Court mentioned that An employer may terminate an
employment for any of the following causes: (a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or representative in connection with his work; (b) Gross
and habitual neglect by the employee of his duties; (c) Fraud or willful breach by the employee of the
trust reposed in him by his employer or duly authorized representative; (d) Commission of a crime or
offense by the employee against the person of his employer or any immediate member of his family or his
duly authorized representative; and (e) Other causes analogous to the foregoing.
In the said case, the driver was validly dismissed as the latter, in his tendency to speed up during his trips,
his reckless driving, his picking up passengers in the middle of the road, his racing with other buses and
his jostling for vantage positions do not speak well of him as a bus driver, such irregularities or
infractions committed by the driver in connection with his work constituted a serious misconduct or, at
the very least, conduct analogous to serious misconduct, under the above-cited Article 282 of the Labor
Code.
However, it is not the case here. The Complainant in the case at bar, was off duty when he had two (2)
shots of drinking beer. He was not drunk, neither was driving when drunk.
Such act does not constitute a serious misconduct or improper behavior to be a just cause for dismissal. It
happened when he was off duty, had merely a sip of beer as a sign of respect towards his colleague and
only happened once, such was a simple or minor misconduct, which does not justify the termnation of the
service of an employee as held in the case of Radio Communications of the Philippines vs. NLRC (G.R.
No. 113178, July 5, 1996).
Further, prior to his termination, he was not apprised of the particular acts for which his dismissal is
sought, nor he was given prior notice of dismissal, insofar as the prcedural due process is concern, the law
specifically requires the employer to furnish the employee sought to be dismissed with two written notice.
Here, clearly no written notices were accorded to him as he was verbally told by Respondent Reyes that
he was no longer allowed to drive and work.
Thus, applying the abovementioned cases, failure to comply with the requisites, makes the dismissal
illegal.

Whether or not the Complainant is entitled to his claim for underpayment of wages, compensation for rest
day, overtime pay, 13th month pay, holiday pay and other benefits.
The Complainant humbly believes that he is entitled to such claims as there is an employer- employee
relationship established between him and the Respondent, hence he is part of the coverage under Article
82 of the Labor Code.
The law provides that the total number of working hours shall not exceed eight (8) hours daily, any work
in excess of which is considered overtime work and should have an additional compensation called
overtime pay. Overtime pay refers to the additional compensation for work performed beyonf wight
hours a day. Here, the facts have shown that the Complainant worked from 4:00 in the morning to 5:00 in
the afternoon every day, that constitutes 13 hours a day, clearly in excess of the normal hours of work.
Therefore, the Complainant is entitled to overtime pay.
As to the underpayment of wages, the Complainant is entitled for proper compensation. The law
considers wages paid to any employee as the remuneration or earnings, however designated, for work
done or to be done or for services rendered or to be rendered, capable of being expressed in terms of
money, payable by employer to an employee under a written or unwritten contract of employment, and
includes fair and reasonable value. Further, a minimum wage rates established shall be nearly adequate as
is economically feasible to maintain the minimum standards of living necessary for the health, efficiency
amd general well- being of the workers within the framework of national economic and social
development goals. In this case, the Complainant was only paid P141 per day, while he work more than 8
hours a day, 7 time a week. Such payment is not in line with what the law requires, as the minimum wage
in Region VII from 2010 - 2015 ranges from P240 to P353, believably unfair and unreasonable.

As for the compensation for rest day, the Labor Code provides that it shall be the duty of every
employer, whether operating for profit or not, to provide each of his employees a rest period of not less
than 24 consecutive hours after every 6 consecutive normal work days. In the case at bar, the Complainant
worked from Monday to Sunday, which clearly shows that he has no rest day period thus he is entitled to
extra compensation for rest day.
As for the 13th month pay, the rule provides that all employers are required to pay all their rank and file
emplyees, a 13th month pay not later than December 24 of every year. Exemptions from coverage are: a)
the government and any of its political subdivisions; b) employers already paying their employees 13th
month pay or more in a calendar year; and c) employers of those who are paid on purely commission,
boundary, or task basis and those who are paid a fixed amount for performing a specific work. Here, the
Complainant does fall under the expressly enumerated exemptions as the facts did not show that he was
paid on purely commission, boundary or task basis. Thus, he is entitled to the claim.
With regard to the holiday pay, the Complainant is also entitled. Holiday pay is a legislated benefit
enacted as part of the Constitutional imperative that the State shall afford protection to labor, pursuant to
Section 3, Article XIII of the 1987 Constitution. Thus it should be applicatble to the herein Complainant
as he does not fall under the exemptions of the coverage, he worked for more than 5 years, 7 days a week
and more than 8 hours a day, not being afforded of a holiday pay is a deprivation of the legislated benefit
of the Complainant. Thus he is entitled to claim for holiday pay.

PRAYERS
WHEREFORE, premises considered, it is most respectfully orayed of this Honorable Labor Arbiter, that
decision be rendered, to wit:
Declaring the Complainant Avencena as an employee of Respondent Roger Bus.
Declaring the termination of the Complainant as illegal.
3. Ordering the Respondent to pay the Complainant her claims for underpayment of wages, compensation
for rest day, overtime pay, 13th month pay, holiday pay and other benefits as he was deprived of the same.
Furtheremore, it is likewise prayed unto the Honorable Labor Arbiter other reliefs just and equitable
under the premises.

RESPECTFULLY SUBMITTED.

Cebu City, January 7, 2018.

S and R Legal Services

(Counsel for the Complainant)
Osmena Blvd., Cebu City

By:

KLAIRE CIARRA G.S ANGCO

Senior Associate
Roll of Attorney’s no. 12345
IBP No. 54321 (Lifetime)
MCLE Compliance No. 111- 1234567

Copy furnished: (by Registered Mail)