Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

NELSON G. DE GUZMAN. et al,

Complainants,

-versus- NLRC NCR CASE NO. OFW (L) 02-01924-14

(Hon. Labor Arbiter Benedict Kato)

FARLAND PERSONNEL MANAGEMENT CORP

ROMMEL S. ASUNCION and CECILLE V. BELO
HOT ENGINEERING AND CONSTRUCTION CO.
Respondents.
x--------------------------------------------------------------x

POSITION PAPER
COMPLAINANTS, through counsel, unto the Honorable Office most
respectfully submits this Position Paper and in support thereof, avers as follows:

THE PARTIES

COMPLAINANTS are Filipino citizens, all of legal age, Overseas Filipino

Workers (OFW), with postal address c/o Campanilla and Partners located at 2 nd
Floor Overland Park Building, 245 Banawe Street, Quezon City;

Respondent FARLAND PERSONNEL MANAGEMENT CORP. (respondent

FARLAND herein) is a domestic corporation organized and existing under the laws of
the Republic of the Philippines located at 2/F FSL BLDG. 15 Sacrepante St.,
Mandaluyong City;

Respondent HOT ENGINEERING AND CONSTRUCTION CO. (respondent

HOT ENGINEERING herein) is the foreign principal of FARLAND located in Kuwait.

Respondent ROMMEL S. ASUNCION and CECILLE V. BELO are the

president / general manager of respondent FARLAND, with postal address 2/F FSL
BLDG. 15 Sacrepante St., Mandaluyong City;

STATEMENT OF FACTS OF THE CASE

This a complaint for illegal dismissal arising from the breach of contracts
committed by the respondents to the complainants.

For complainant DE GUZMAN, NELSON GATCHALIAN:

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 Complainant signed a Contract of Employment with respondent FARLAND on
August 20, 2013 for deployment with respondent HOT ENGINEERING in Kuwait;

(Attached herein as ANNEX “A” is complainant’s Overseas Filipino Worker

Information Sheet issued by the Philippine Overseas Employment Administration, to
form an integral part hereof);

As per complainant’s Contract of Employment, complainant is to work with

respondent HOT ENGINEERING as an IRONSMITH, for a period of 12 months upon
signing of contract and received a salary of 133 to 220 Kuwaiti Dinar per month.

Complainant thus left the country on August 20, 2013 and arrived in Kuwait
the following day. He was required to surrender his Contract of Employment by the
respondent upon his arrival.

Complainant went about doing his work as per contract. However,

complainant was forced to return to the Philippines on January 29, 2013 by the
respondents without any valid reason and in breach of his employment contract;

(Complainant’s passport bearing his date of departure and arrival in the Philippines is
attached herein as ANNEX “A-1” to form an integral part hereof).

For complainant SIBAYAN, ER PUNZALAN

Complainant signed a Contract of Employment with respondent FARLAND on

August 20, 2013 for deployment with respondent HOT ENGINEERING in Kuwait;

(Attached herein as ANNEX “B” is complainant’s Overseas Filipino Worker

Information Sheet issued by the Philippine Overseas Employment Administration, to
form an integral part hereof);

As per complainant’s Contract of Employment, complainant is to work with

respondent HOT ENGINEERING as a GRINDER, for a period of 12 months upon
signing of contract and received a salary of 120 Kuwaiti Dinar per month.

Complainant thus left the country on August 20, 2013 and arrived in Kuwait
the following day. He was required to surrender his Contract of Employment by the
respondent upon his arrival.

Complainant went about doing his work as per contract. However,

complainant was forced to return to the Philippines on January 29, 2013 by the
respondents without any valid reason and in breach of his employment contract;

(Complainant’s passport bearing his date of departure and arrival in the Philippines is
attached herein as ANNEX “B-1” to form an integral part hereof).

For complainant DUMAPLIN, FRANCIS IAN:

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 Complainant signed a Contract of Employment with respondent FARLAND on
August 20, 2013 for deployment with respondent HOT ENGINEERING in Kuwait;

(Attached herein as ANNEX “C” is complainant’s Overseas Filipino Worker

Information Sheet issued by the Philippine Overseas Employment Administration, to
form an integral part hereof);

As per complainant’s Contract of Employment, complainant is to work with

respondent HOT ENGINEERING as a GRINDER, for a period of 12 months upon
signing of contract and received a salary of 120 Kuwaiti Dinar per month.

Complainant thus left the country on August 20, 2013 and arrived in Kuwait
the following day. He was required to surrender his Contract of Employment by the
respondent upon his arrival.

Complainant went about doing his work as per contract. However,

complainant was forced to return to the Philippines on January 29, 2013 by the
respondents without any valid reason and in breach of his employment contract;

(Complainant’s passport bearing his date of departure and arrival in the Philippines is
attached herein as ANNEX “C-1” to form an integral part hereof).

For complainant DIVERSON, ROGELIO II

Complainant signed a Contract of Employment with respondent FARLAND on

August 20, 2013 for deployment with respondent HOT ENGINEERING in Kuwait;

(Attached herein as ANNEX “D” is complainant’s Overseas Filipino Worker

Information Sheet issued by the Philippine Overseas Employment Administration, to
form an integral part hereof);

As per complainant’s Contract of Employment, complainant is to work with

respondent HOT ENGINEERING as a GRINDER, for a period of 12 months upon
signing of contract and received a salary of 120 Kuwaiti Dinar per month.

Complainant thus left the country on August 20, 2013 and arrived in Kuwait
the following day. He was required to surrender his Contract of Employment by the
respondent upon his arrival.

Complainant went about doing his work as per contract. However,

complainant was forced to return to the Philippines on January 29, 2013 by the
respondents without any valid reason and in breach of his employment contract;

(Complainant’s passport bearing his date of departure and arrival in the Philippines is
attached herein as ANNEX “D-1” to form an integral part hereof).

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 ISSUE/S

Thus, the issue/s for the above-entitled case are:

a. WHETHER OR NOT THE RESPONDENTS ARE GUILTY OF ILLEGAL

DISMISSAL AND ARE LIABLE FOR THE SALARY OF THE
COMPLAINANTS CORRESPONDING TO THE UNEXPIRED PERIOD OF
THEIR CONTRACTS.

b. WHETHER OR NOT THE RESPONDENTS ARE LIABLE FOR MORAL

AND EXEMPLARY DAMAGES.

c. WHETHER OR NOT THE RESPODENTS ARE LIABLE FOR

ATTORNEY’S FEES.

ARGUMENTS/DISCUSSIONS

Respondents’ unjustified breach of contract should hold them liable for the
complainants’ salary corresponding to the unexpired portion of their contracts;

“In cases involving OFWs, the rights and obligations among and between the
OFW, the local recruiter/agent, and the foreign employer/principal are governed by
the employment contract. A contract freely entered into is considered law between
the parties; and hence, should be respected.” (EDI-STAFFBUILDERS
INTERNATIONAL, INC. vs. NLRC, G.R. No. 145587, October 26, 2007)

The period in the complainant’s contract is something that cannot be pre-

terminated without violating their right to security of tenure as provided for in the
Labor Code;

Unless for just cause and with due process, such pre-termination constitute
illegal dismissal which is proscribed under the same code:

“The requisite for a valid dismissal are (a) The employee must
be afforded due process, i.e ., he must be given an opportunity to be
heard and to defend himself and (b) the dismissal must be for valid
causes as provided in Article of the Labor Code” (Arboled vs NLRC
303 SCRA 38);

In the instant case, herein complainants has successfully proven that

respondents violated existing laws prohibiting illegal dismissal and thus must be held
accountable for it;

Complainants are entitled to the payment of their salaries representing the

unexpired portion of their employment contract from January 20, 2014 up to August
20, 2014. And under the law, respondents are JOINTLY and SOLIDARILY LIABLE for
all claims that may arise in connection with the complainants’ employment contracts.

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(see ATCI OVERSEAS CORPORATION vs. MA. JOSEFA ECHIN, October 11,
2010.)

Furthermore, following the ruling laid down by the Supreme Court in the
recent case of SKIPPERS UNITED PACIFIC, INC. vs. NATHANIEL DOZA (G.R. No.
175558, February 8, 2012), complainants are entitled to the ENTIRE UNEXPIRED
PORTION of his employment contract. Thus:

The Migrant Workers Act provides that salaries for the

unexpired portion of the employment contract or three (3) months for
every year of the unexpired term, whichever is less, shall be awarded
to the overseas Filipino worker, in cases of illegal dismissal. However,
in 24 March 2009, Serrano v. Gallant Maritime Services and Marlow
Navigation Co. Inc.,(G.R. No. 167614, 24 March 2009, 582 SCRA
254.) the Court, in an En Banc Decision, declared
UNCONSTITUTIONAL the clause “or for three months for every year
of the unexpired term, whichever is less” and awarded the ENTIRE
UNEXPIRED PORTION of the employment contract to the overseas
Filipino worker. (Emphasis ours.)

On the second issue, since complainants’ dismissals were effected unlawfully

and in utter bad faith, they are entitled to damages moral and exemplary under the
pertinent provision of the New Civil Code;

The High Court has unequivocally declared that BREACH of an employment

contract entitles the complainant to the award of damages. (C.F. SHARP & CO. INC.
vs. PIONEER INSURANCE AND SURETY CORPORATION (G.R. No. 179469,
February 15, 2012)

Finally, in the pursuit of justice, the complainants were forced to secure the
services of counsel, thereby incurring legal fees in the process. Accordingly, the
respondents should likewise be ordered to pay attorney’s fees equivalent to ten
percent of the amount of wages recovered as provided for in Art. 111 of the Labor
Code.

Settled is the rule that in actions for recovery of wages, or where an employee
was forced to litigate and, thus, incur expenses to protect his rights and interests, a
monetary award by way of attorney’s fees is justifiable under Article 111 of the Labor
Code; Section 8, Rule VIII, Book III of its Implementing Rules; and paragraph 7,
Article 2208 of the Civil Code. The award of attorney’s fees is proper, and there
need not be any showing that the employer acted maliciously or in bad faith when it
withheld the wages. There need only be a showing that the lawful wages were not
paid accordingly. (Kaisahan vs. Manila Water Company, G.R. NO. 174179,
November 16, 2011)

In closing, the Supreme Court emphasized that “our overseas workers belong
to a DISADVANTAGED CLASS. Most of them come from the poorest sector of our

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society. Their profile shows they live in suffocating slums, trapped in an environment
of crimes. Hardly literate and in ill health, their only hope lies in jobs they find with
difficulty in our country. Their unfortunate circumstance makes them easy prey to
avaricious employers. They will climb mountains, cross the seas, endure slave
treatment in foreign lands just to survive. Out of despondence, they will work under
sub-human conditions and accept salaries below the minimum. THE LEAST WE
CAN DO IS TO PROTECT THEM WITH OUR LAWS. (Olarte v. Nayona, 461 Phil.
429, 2003, emphasis ours).

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Office to render judgment in favor of the complainants and against the
respondents, as follows:

1. To order the respondents solidarily liable to pay the complainants

their unpaid salaries corresponding to the entire unexpired portion
of their employment contracts starting from January 20, 2014 up to
August 20, 2014;

2. To award the complainants moral and exemplary damages, plus

attorney’s fees.

Other just and equitable remedies are likewise prayed for.

Quezon City, April 22, 2014.

ATTY. PEARLITO B. CAMPANILLA

Suite B 2nd Floor Overland Park Bldg.,
No. 245 Banawe St. cor. Quezon Ave., Quezon City
Roll 37522 / IBP Life 010564 2-3-12 Pasig
PTR 9019138 1-7-14 QC / MCLE IV - 0018064

Copy Furnished:

FARLAND PERSONNEL MANAGEMENT CORP

ROMMEL S. ASUNCION and CECILLE V. BELO
2/F FSL BLDG. 15 Sacrepante St., Mandaluyong City

HOT ENGINEERING AND CONSTRUCTION CO.

Kuwait