Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VII
Cebu City

KAT BEE, RAB VIII Case No. 01- 0143 – 17

Complainant,

-versus-

DANIELA SY,
Respondent,
x---------------------x

POSITION PAPER

RESPONDENT by the undersigned counsel and unto this Honorable Labor

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

PREFATORY STATEMENT

The Complainant in this case is KAT BEE, Filipino citizen, single, with address
at Jones Avenue, Cebu City where he could be served with summons and other legal
processes of this Honorable Office.

The Respondent is DANIELA SY, owner of Dan Designs, with business address
at Cadaruhan, Boljoon, Cebu, where the said establishment and respondent could be
served with summons and other legal processes of this Honorable Office.

STATEMENT OF FACTS

Dan Designs, owned by respondent Daniela Sy, is engaged in fashion designs

and production of ready-to-wear clothing.

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 Respondent-Daniela averred that her business is mostly for export which was
doing good in the early 2000 up to 2007. But around 2008 onwards, the market went
down. Her business steadily declined over the years. This led to the closure of the
factories in Mandaue and Lapu-Lapu City due to failure to sustaining the overhead
costs of operations.

Sometime in 2013, respondent-Daniela decided to transfer her business

operations to Boljoon, Cebu, on a parcel of land owned by her to save costs.
Respondent-Daniela decided to outsource the manufacturing process of products and
engaged the services of suppliers based in Boljoon, Cebu, who are equipped with the
skills and know-how to produce the fashion accessory products. The suppliers, about
six or seven, allegedly work in their own homes and at their own time. After they
finished their assigned orders, supplies would then deliver the finished product to
respondent, who would buy them based on a pre-agreed price. Such arrangement
reduced the operations of respondent-Daniela’s factory since the bulk of the orders
were being served out by the suppliers already. Respondent stated that the normal
work at the factory would average only about one (1) week in a month, and it would
allegedly be closed for the rest of the time. Respondent-Daniela also enjoyed
flexibility allegedly in her schedule.

In 2014, complainant, who is a first cousin of respondent-Daniela, approached

the latter and asked if there was any work available. Respondent-Daniela allegedly
agreed to let complainant cook her meals whenever she visits her house and the
factory. During the idle time in between her cooking, complainant would allegedly
continue to hangout at the factory so respondent-Daniela would sometimes delegate
other domestic errands and chores.

Respondent-Daniela asserted that complainant has never been a production

worker because she does not have the requisite skill to undertake any of the
production work available. Complainant’s eyesight is not good enough to undertake
the delicate task in the production work. Complainant would just cook meals in
respondent-Daniela’s house which was not on a regular basis.

In December 2016, complainant got into a dispute with some of the workers
of respondent-Daniela over some personal matters. Respondent-Daniela tried to
pacify the parties, but her efforts failed. Complainant’s presence was creating an
unnecessary distraction from workers, and so respondent-Daniela decided to ask

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complainant to just temporarily stop cooking food for her in order to diffuse the
brewing conflict. Respondent was later shocked by complainant’s filing of the labor
case.
Mandatory conciliation and mediation conference was conducted however, no
settlement was arrived between parties.

ISSUES

1. WHETHER OR NOT THE COMPLAINANT WAS A DOMESTIC SERVANT OR A

REGULAR EMPLOYEE OF RESPONDENT-DANIELA

2. WHETHER OR NOT COMPLAINANT WAS IN FACT DISMISSED

3. WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO HER CLAIMS FOR

WAGE DIFFERENTIALS, OVERTIME PAY AND 13TH MONTH PAY

DISCUSSION AND ARGUMENTS

FIRST ISSUE: COMPLAINANT IS ONLY A DOMESTIC SERVANT

SECOND ISSUE: COMPLAINANT WAS DISMISSED LEGALLY

The Complainant was in fact dismissed. However, from the foregoing facts, it
is clear that the dismissal of the complainant was illegal. As a result, he should be
paid of his separation pay as provided by law. Also, no procedural process was
accorded to him prior to his termination from service.

Insofar as the procedural due process is concerned, Article 277 (b) of the
Labor Code specifically requires the employer to furnish the worker or employee
sought to be dismissed with two written notic

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 Stop
e, i.e., a notice which apprises the employee of the particular acts or omission
for which his dismissal is sought, and a subsequent notice which informs the
employee of the employer’s decision to dismiss him (Kiamco vs. NLRC, G.R. No.
129449, June 29, 1999).

In this instant case, clearly the complainant was not afforded of the
procedural due process accorded by law because he was simply verbally fired from
his employment when she reported to work.

In addition, it must be borne in mind that the basic principle in termination

cases is that the burden of proof rests upon the employer to show that the dismissal
is for just and valid cause, and failure to do so would necessarily mean that the
dismissal was not justified and, therefore, was illegal [Polymedic General Hospital v.
NLRC, G.R. No. 64190, January 31, 1985, 134 SCRA 420; and also, Article 277 of the
Labor Code].

THIRD ISSUE: COMPLAINANT IS NOT ENTITLED TO WAGE DIFFERENTIALS,

OVERTIME PAY, AND 13TH MONTH PAY

As to the entitlement of wage differentials, overtime pay, and 13 th month pay,

the Complainant believes that she is entitled to the same just like all other regular
employees and as guaranteed by the Labor Code of the Philippines. The
complainant was deprived of these labor standards.

The Labor Code provides for an 8-hour normal hours of work pursuant to Art.
83 thereof and work rendered in excess of eight hours should be paid the overtime
pay in accordance with Art. 87. Inasmuch as the Complainant rendered 9 hours per
day of work, he is entitled to overtime pay.

The Complainant was underpaid throughout his employment with the

Respondent. The Complainant respectfully submit that he should have been
receiving the daily minimum wage so provided by the wage orders issued by the
Regional Tripartite Wages and Productivity Board – VII and considering that she has
not received the legal wage mandated by law, he should be paid the salary
differential.

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 PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Labor Arbiter, that decision be rendered, to wit:

1. Declaring the complainant as a regular employee of respondent-

Daniela
2. Declaring the dismissal of the herein Complainant as illegal and
further, ordering Respondent to pay unto the Complainant separation pay
3. Declaring the complainant entitled o her claims for wage
differentials, overtime pay and 13th month pay

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

RESPECTFULLY SUBMITTED.

Cebu City, January 20, 2018.