Positionpapernlrcjjmegaholdings.docx

Republic of the Philippines NATIONAL LABOR RELATIONS COMMISSION Regional Arbitration Branch No. VIII Trece Martires St., Tacloban City

ALEX CANITES, JR. Complainant

- versus -

.

NLRC Case No. VIII-06-0209-18

JJ MEGA HOLDING CORP. and/or MR. JACKSON FAN, Owner/ AVA SHARON KHO, Gen. Mgr.. Respondent/s

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POSITION PAPER (For the Respondents) Respondents, through the undersigned Counsel, most respectfully submit and present this Position Paper in the above-entitled case and aver that: I.

STATEMENT OF FACTS Respondent JJ MEGAHOLDING CORP. is a business entity with its principal place of business at Brgy. 74, Lower Nula-Tula, Tacloban City. It is engaged in the sale of construction aggregates such as sand and gravel with Ms. Ava Sharon Kho as its Human Resource Officer. Because of the nature of its business, respondent corporation owns 12 units of trucks used in the hauling and delivery of the construction aggregates.

These trucks used in the business needs maintenance and repairs arising from its daily operations, hence, there was a need to contract out a service provider to do these repairs. Respondent Corporation then procured the services of Francisco Isaac also known as “Koko” sometime in December 2014 up to the present. Koko is an independent job contractor as he possesses special skills and expertise in repairing any kind of damage to the engines of the trucks as well as to the other parts of the trucks. Furthermore, respondent corporation does not control the means and methods by which he performs his job. Koko then hired herein complainant Alex Canites, Jr. to do the electrical works on the trucks. Complainant was paid on a daily basis by Koko at the rate of Php450.00 per day. Complainant was also allowed by Koko to be absent on other days as he was also accepting electrical jobs from other clients.(Affidavit of Francisco “Koko” Isaac is hereto attached and marked as Annex “A”). Complainant’s name never appeared on any of the biometric records(Copies are hereto attached and marked as Annex “B-1 to B-3”) nor the respondent corporation’s payrolls(Copies are hereto attached and marked as Annex “C-1 to “C-____). On April 30, 2018, AVR(automatic voltage regulator) units which were procured by respondent corporation arrived in its principal place of business. Since these units are quite heavy and big in size, it would need a number of men to unload the same for it might be damaged if these would fall. The employees then helped unload the AVR units from the delivery truck except for complainant Alex Canites, Jr.. The employees called for complainant to help them but he did not heed to their request. Respondent Ava Sharon Kho went out of her office to supervise the unloading of the AVR units. When complainant saw her, he made his voice even louder that he is not willing to help them.

Ava Sharon Kho then called for a meeting with all the employees. She then told complainant Alex Canites, Jr. that he should not say those words, as each one should help each other in the workplace. Instead of taking the advice of respondent Kho, Alex shouted that he should not be obliged to help as he is an electrician and is not an employee of JJ Mega Holding Corp. Ms. Kho further told him that he should help even if he was not an employee because even the operations manager helped in unloading the AVR units. Complainant then told respondent Ava Kho that she has no authority to tell him those things then went home outright. Alex Canites, Jr. then filed a Complaint for illegal dismissal before the NLRC Regional Arbitration Branch No. VIII on June 5, 2018 and prayed that he be payed by respondent corporation his Service Incentive Leave(SILP), Separation pay, and other benefits due him. A mandatory conciliation and mediation conference was conducted by the Labor Arbiter on June 19, 2018 between the parties but failed to settle amicably.

II.

ISSUE

1.)

2.)

III.

WHETHER OR NOT THERE EXISTS AN EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN COMPLAINANT AND RESPONDENTS; WHETHER OR NOT COMPLAINANT IS ENTITLED TO SILP, SEPARATION PAY AND OTHER BENEFITS

ARGUMENTS . 1. There exists no employer-employee relationship between the complainant and respondents. 2. Complainant is not entitled to SILP, Separation Pay, and other benefits.

IV.

DISCUSSIONS

NO EMPLOYER-EMPLOYEE RELATIONSHIP EXISTS It is well-settled that the factors to determine the existence of an employer-employee relationship are the following: 1. 2. 3. 4.

Selection and engagement of the employee; Payment of wages; Power of dismissal;and Power of Control.

Under the first determining factor, which is the selection and engagement of employee, it was not JJ Mega Holding who hired the complainant, it was Francisco “Koko” Isaac, an independent contractor who hired him. It was the latter who evaluated his skills and engaged his services to do the electrical jobs on the vehicles. On the second determining factor, which is the payment of wages, it is not JJ Mega Holding Corp. who pays the wages of herein complainant. It is Francisco “Koko” Isaac who is paying complainant Php450.00 per day. On the third determining factor, which is the power of dismissal, respondent corporation has no power to dismiss herein complainant. Had the respondent corporation possessed such power, they should have dismissed complainant long before when the latter incurred absences, when he would work on the vehicles of his other customers. This is tantamount to gross and habitual neglect of duty, a just cause for dismissal under Art. 288, par.(b) of the Labor Code . In fact, it is complainant himself who voluntarily left the premises after the exchange of words between him and respondent Kho occurred.

On the fourth determining factor which is the control test, the most important test. There is an employer-employee relationship when the person for whom the services are performed reserves the right to control not only the end but also the manner and means used to achieve that end(Television and Production Exponents Inc. vs Servana 542 SCRA 578). In this case, respondent corporation has no control over the the manner and means to achieve that end as respondent corporation does not give instructions to complainant on how he will conduct the wiring or the repairing of the electrical connections of the trucks as he is also under the direct supervision of the independent contractor who hired him. Also applying the economic dependence test, the proper standard is whether the worker is dependent on the alleged employer for his continued employment in that line of business. It is clear that complainant is not dependent on respondent corporation for his continued employment. The absences he would incur which was with the consent of Francisco Isaac just to work on the electrical jobs of other clients’ vehicles is sufficient proof that he can earn a living even without the respondent corporation. With the four elements of employer-employee relationship wanting, it is crystal clear that complainant is not an employee of respondent corporation. Complainant is an employee of the independent contractor and not of the corporation. COMPLAINANT NOT ENTITLED TO SERVICE INCENTIVE LEAVE PAY(SILP) Service Incentive Leave is a 5-days leave with pay for every “employee” who has rendered at least 1 year of service. There exists no employer-employee relationship between complainant and respondents, hence, complainant cannot be entitled to SILP. COMPLAINANT NOT ENTITLED TO SEPARATION PAY Separation pay refers to the amount due to the employee who has been terminated from service for causes authorized by law such as the installation of labor-saving losses or the closing or cessation of operation of the establishment or undertaking.

Separation pay is intended to provide the employee with the werewithal during the period he is looking for another employment.(Gabuay vs. Oversea Paper Supply, G.R. No. 148837) Separation pay cannot be given to herein complainant as he was not terminated from service from an authorized cause under the Labor Code. Furthermore, he cannot be looking for another employment as he already accepts electrical jobs from other clients even from the time that he was still working on the trucks of respondent corporation. In conclusion, Alex Canites, Jr. is not an employee of JJ Mega Holding Corp., hence, the severance of work by herein complainant from respondents did not constitute illegal dismissal and he is not entitled to any benefits from respondent corporation. PRAYER WHEREFORE, foregoing premises considered, it is most humbly and respectfully prayed unto the Honorable Labor Arbiter: (1) Declaring Alex Canites, Jr. not an employee of JJ Mega Holding Corp. ; (2) Ordering the complaint for illegal dismissal against respondents dismissed; (3) Declaring Alex Canites, Jr. not entitled to SILP, Separation Pay and other benefits; (4) Such other reliefs just and equitable under the premises are likewise prayed for. June 27, 2018, Tacloban City.

ATTY. CHRISTOPHER RYAN P. ROSAL Counsel for the Respondents Roll No. 67012 IBP No. 024315, 1/5/2018, LEYTE PTR No. 7700343, 1/3/2018, TAC. CITY Kings Bldg., Paterno St., Tacloban City

Copy Furnished: Alex Canites, Jr. Brgy. 106, Sto. Nino. Kapuso Village, Tacloban City Registry Receipt No._________________________ VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING I, AVA SHARON KHO, Filipino, of legal age, married, and with residential address at Brgy. 74, Maharlika Highway, Lower Nulatula, Tacloban City, after having been duly sworn to in accordance with law, do hereby depose and state that: 1. 2. 3. 4.

5.

That I am the respondent of the above-entitled case; That I have caused the preparation and filing of the foregoing Position Paper; That I have understood the allegations contained therein and the same are true and correct of my own personal knowledge and based on authentic records on file with this office; That I have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency and to the best of my knowledge no such other action is pending therein; If I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I hereby undertake to report such fact within five (5) days therefrom to this Honorable Office.

IN WITNESS WHEREOF, I have hereunto set my hands this 27th day of June 2018 in Tacloban City. AVA SHARON KHO Affiant SUBSCRIBED AND SWORN to before me this 27th day of June 2018, in Tacloban City, affiant exhibited her identification card with ID No.______________________________