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Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION Quezon City

AARON BARON CARREON, RAFFY GREG SANTAROSA Complainant,

-versus-

NLRC CASE NO. 05-000000-13

THE CLUB DE MANILLE, and/o RICHIE DE LEON, Respondent, x---------------------------------------------x MEMORANDUM COME NO! RES"ONDENTS, throu h the undersi ned counsel, unto this !onorable "ribunal most respectfully submit and present this #emorandum in the above-titled case and aver that$ "REFATORY STATEMENT "here is nothin essentially contradictory bet%een a definite period of an employment contract and the nature of the employee&s duties set do%n in that contract as bein 'usually necessary or desirable in the usual business or trade of the employer(' "he concept of the employee&s duties as bein 'usually necessary or desirable in the usual business or trade of the employer' is not synonymous %ith or identical to employment %ith a fixed term( )*rent +chool vs( ,amora )-(R( .o( L-/0/1/, 23 4ebruary 51126(

THE "ARTIES 5( Complainant 77R8. *7R8. C7RRE8. )Carreon for brevity6 and R7449 -RE+7."7R8+7 )+antarosa for brevity6 %ere casual employee %aiters of the respondent(

:( Defendant "!E CL;* DE #7.<LLE )the Club for brevity6 is a non-stoc=, non-profit corporation duly or anized and existin under and by virtue of Philippines La%s, established for the primary purpose of promotin the physical %ell-bein of its members and foster social interrelationship and spirit of ood fello%ship and camaraderie amon them> secondarily, to provide and maintain the necessary facilities for pleasure, recreation and diversion, amon other( ?( <ndividual respondent, R<C!<E DE LE8. )De Leon for brevity6 is bein sued in his official capacity as the President of the Club( I. STATEMENT OF FACTS

8n #ay 51, :255, Complainants applied for and %ere accepted to %or= for the Club as Extra @aiters to perform banAuet and %ait services durin special events, durin periods of hi h number of banAuet boo=in s( ;pon their application they %ere informed by the Club that at said time, there %as no available positions for re ular %aiters( "he only available positions are casual positions only for extra %aiters( 7s extra %aiters, it %as their sole tas= to assist and help the re ular %aiters %henever the number of events %ere to numerous for said re ular %aiters to handle alone( "hey %ere also informed that in the event that the number of scheduled banAuets %as of mana eable number, they %ere not reAuired to report for %or=( 4urthermore, they #r( Carreon and #r( +antarosa %ere informed that their contract %ill only be up to and %ill expire on 7pril :25? and 20 4ebruary :25? respectively( ;pon the lapse of their contract of employment, the complainant erroneously averred that they %ere re ular employees and %ere ille ally dismissed( II. ISSUES OF THE CASE

A.# !HETHER OR NOT THE COM"LAINANTS ARE REGULAR EM"LOYEES OF THE RES"ONDENTS$ B.# !HETHER DISMISSED$ OR NOT THE COM"LAINANTS !ERE ILLEGALLY

C.# !HETHER OR NOT THE COM"LAINT SHOULD BE DISMISSED IN FA%OR OF THE RES""ONDENTS III. ARGUMENTS/ DISCUSSION

!HETHER OR NOT THE COM"LAINANTS ARE REGULAR EM"LOYEES OF THE RES"ONDENTS$ !HETHER OR NOT THE COM"LAINANTS !ERE ILLEGALLY DISMISSED$ "he Complainants ar ue that they are not casual employees but rather they are re ular employees( ;nder our Burisprudence> An employment shall be deemed regular if the employee performs activities usually necessary or desirable in the usual business and trade of the employer OR if the employee has rendered at least one (1) year of service, whether the service be continuous or broken. errochrome !hils. vs. "#R$, %&' ($RA &1) *.R. 1+))&, -) (eptember 1../0 1he primary standard, therefore, of determining a regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. 1he test is whether the former is usually necessary or desirable in the usual business or trade of the employer. 1he connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. A#(O, if the employee has been performing the 2ob for at least one year, even if the performance is not continuous or merely intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. 3ence, the employment is also considered regular, but only with respect to such activity and while such activity e4ists. (5e #eon vs. "#R$ -*.R. "o. 6+6+), %1 August 1.,.) Considerin the above mentioned, it may seem that the complainants may have a point in their ar ument that they are re ular employees of the corporation since it is ar uable that they are performin %or= that is necessary and desirable to the business of the Respondent( !o%ever, this is not so( "he Complainants are term employees( 7s term employees, they are neither re ular or casual employees( 4urthermore, in term employment, the Auestion of %hether the employee is

performin %or= that is necessary and desirable to the business of the employer is irrelevant( ;nder *rent +chool vs( ,amora> 1he 7uestion immediately provoked by a reading of Article &1. is whether or not a voluntary agreement on a fi4ed term or period would be valid where the employee 8has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer.8 1he definition seems a non se7uitur. rom the premise that the duties of an employee entail 8activities which are usually necessary or desirable in the usual business or trade of the employer the8 conclusion does not necessarily follow that the employer and employee should be forbidden to stipulate any period of time for the performance of those activities. 1here is nothing essentially contradictory between a definite period of an employment contract and the nature of the employee9s duties set down in that contract as being 8usually necessary or desirable in the usual business or trade of the employer.8 1he concept of the employee9s duties as being 8usually necessary or desirable in the usual business or trade of the employer8 is not synonymous with or identical to employment with a fi4ed term. +uch type of employment is valid as lon as the fixed term employment %as not entered to circumvent tenurial ri hts of the employees( 7ccordin to P.8C vs .LRC> 1he two guidelines, by which fi4ed contracts of employments can be said "O1 to circumvent security of tenure, are either: 1. 1he fi4ed period of employment was KNOWINGLY AND VOLUNTARILY AGREED UPON by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or: %. <t satisfactorily appears that the employer and employee DEALT WITH EACH OTHER ON MORE OR LESS EQUAL TERMS with no moral dominance whatever being e4ercised by the former on the latter. (!"O$ vs. "#R$ -*.R. "o. .66/6, &1 =arch 1..&0) <n the case at bar, it is clear that the Club complied %ith the aforesaid reAuirements( 4irst, durin the application of the Complainants, there %as no compulsion or any

vitiation of consent that occurred( "he Complainants %ere apprised of the fact that that at then said time, there %as no available positions for re ular %aiters( "he only available positions are casual positions only for extra %aiters( "hey %ere informed also that as extra %aiters, it %as their sole tas= to assist and help the re ular %aiters %henever the number of events %ere to numerous

for said re ular %aiters to handle alone and that in the event that the number of scheduled banAuets %as of mana eable number, they %ere not reAuired to report for %or=( 4urthermore, they #r( Carreon and #r( +antarosa %ere informed that their contract %ill only be up to and %ill expire on 7pril :25? and 20 4ebruary :25? respectively( "his clearly sho%s that they entered into such contract %ith full =no%led e and intention( 7s a matter of fact, they do not even have any alle ations of vitiation of consent or bad faith on the part of the Club on their Complaint and Position Paper( +econd, %ith re ard to the reAuirement that it satisfactorily appears that the employer and employee dealt %ith each other on more or less eAual terms %ith no moral dominance %hatever bein exercised by the former on the latter, it is presented that the Club complied %ith such reAuirement( "here are naturally ineAualities in the position of employer and employee, ho%ever in such case> such ne otiations %ere made more or less in eAual terms because there %ere no compulsions involved( "he Complainants %ere not compelled to ta=e the Bob due to economic factors( "hey %ere educated since they %ere colle e raduates and they %ere not economically challen ed( "herefore, they %ere not forced to accept such %or=( "he aforesaid reAuirements are a Auestion of fact %hich must be alle ed and proved( <n case at bar, there %as no indication of force, duress, or improper pressure exerted on petitioners %hen they si ned the contracts( 4urther, there %as no proof that respondents %ere re ularly en a ed in hirin %or=ers for %or= for a minimum period of five months to prevent the re ularization of their employees, there %as no alle ations of moral compulsion or vitiation of consent in the contract therefor such fixed term of employment is deemed uncontroverted and valid( 7s *rent +chool vs( ,amora states$ <t should have no application to instances where a fi4ed period of employment was agreed upon knowingly and voluntarily by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent, or where it satisfactorily appears that the employer and employee dealt with each other on more or less e7ual terms with no moral dominance whatever being e4ercised by the former over the latter. >nless thus limited in its purview, the law would be made to apply to purposes other than those e4plicitly stated by its framers; it thus becomes pointless and arbitrary, un2ust in its effects and apt to lead to absurd and unintended conse7uences. (?rent (chool vs. @amora (*.R. "o. #A/,/./, +) ebruary 1..+0)

"herefore, since it is submitted that the contract of fixed term employment bet%een the parties is valid( <t is submitted that the Complainants %ere not dismissed, but rather their contact Bust expire( "herefore there %as no ille al dismissal( <t is also clear that the Complainants failed to alle e and provide proof that the contract bet%een the parties is invalid and as stated in #achica vs( Roosevelt Center <nc($ 1he rule is that one who alleges a fact has the burden of proving it; thus, petitioners were burdened to prove their allegation that respondents dismissed them from their employment. <t must be stressed that the evidence to prove this fact must be clear, positive and convincing. 1he rule that the employer bears the burden of proof in illegal dismissal cases finds no application here because the respondents deny having dismissed the petitioners. 7s clearly stated, it is the burden of the Complainant to prove that they %ere ille ally dismissed( <n the case at bar, the complainant merely provide alle ations %ithout any factual proof that they %ere ille ally dismissed( "hey failed to prove that their fixed term employment contract is meant to contravene their tenurial ri hts and is in violation of the uidelines provided for in P.8C vs( .LRC( Lasly, as said by Custice Cose C( #endoza> it is true the Constitution re ards labor as 'a primary social economic force(' *ut so does it declare that it 'reco nizes the indispensable role of the private sector, encoura es private enterprise, and provides incentives to needed investment(' "he Constitution bids the +tate to 'afford full protection to labor(' *ut it is eAually true that 'the la%, in protectin the ri ht&s of the laborer, authorizes neither oppression nor selfdestruction of the employer(' 7nd it is oppression to compel the employer to continue in employment one %ho is uilty or to force the employer to remain in operation %hen it is not economically in his interest to do so( )+errano vs( .LRC -(R( .o( 55D2/2, :D Canuary :2226 "RAYER !HEREFORE, premise considered, it respectfully prayed for that this !onorable "ribunal that Complainants prayer to declare the complainant as ille ally dismissed and to be a%arded dama es be DENIED for havin no cause of action and the complaint be DISMISSED for bein clearly unmeritorious( 8ther Bust and eAuitable relief under the fore oin are li=e%ise bein prayed for( Respectfully submitted(

Quezon City, Philippines( :E 8ctober, :25?(

BEST LA! OFFICES Counsel for the Respondents .umber 8ne +treet, Paseo de .umero ;no, #a=aty City #obile$ FE?15D 5*E+"):?D06 "el$ FE? : 5555555 4ax$ FE? : 2555555 infoGbestla%(com(ph

*y$

ATTY. LO%E LABIOS <*P Lifetime .o( 222222> 5H53H:25?, #a=ati City P"R .o( 222222> 25H:3H:25?, #a=ati City Roll of 7ttorney .o( 222222 #CLE Compliance .o( <I J 2222222

ATTY. "RECIOUS A"RIL DIAMANTE <*P Lifetime .o( 222222> 5H53H:25?, #a=ati City P"R .o( 222222> 25H:3H:25?, #a=ati City Roll of 7ttorney .o( 222222

Copy 4urnished$ AARON BARON CARREON 7*C apartment, *r y( 7, Quezon City RAFFY GREG SANTAROSA R- "o%ers, R Iille, #anila