Republic of the Philippines

DEPARTMENT OF LABOR AND EMPLOYMENT

National Labor Relations Commission
Quezon City

GADY CLAVERIA ANDAYA,

Complainant,

-versus - NLRC-NCR-0303923-18
[Hon. LA MARCIAL GALAHAD T. MAKASIAR]

HANDYLEO CONSTRUCTION /
LEOPOLDO FLORENTINO
Respondents,
x------------------------------------------ x

RESPONDENTS’ POSITION PAPER

Respondents HANDYLEO CONTRUCTION and LEOPOLDO

FLORENTINO, by undersigned counsel, most respectfully submit this
Position Paper and aver as follows:

PREFATORY STATEMENT
“The law in protecting the rights of the laborers authorizes
neither oppression nor self-destruction of the employer. Justice
is to be denied to none. (Atlas Fertilizer Corporation vs. NLRC,
273 SCRA 549[1]

“The constitutional policy of providing full protection to

labor is not intended to oppress or destroy management… The
unflagging commitment of this Court to the cause of labor will
not prevent us from sustaining the employer when it is right”
(Emphasis supplied) Garcia vs. National Labor Relations
Commission, 234,

“. . . While the Constitution is committed to the policy of

social justice and the protection of the working class, it should
not be supposed that every labor dispute will automatically be
decided in favor of labor. [Makati Haberdashery, Inc., vs
NLRC, Gr No. 83380-81, November 15, 1989)]”
 PARTIES

1. HANDYLEO CONSTRUCTION, [for brevity “HANDYLEO”]

is a construction company operating and existing under and by virtue of the
laws of the Republic of the Philippines. Attached are proofs of respondents’
business legitimacy namely: Business Permits & Licensing Office Billing
and Permit1 and DTI Certification. 2 Respondent LEOPOLDO
FLORENTINO, (for brevity, “FLORENTINO”) is sued in his capacity as
owner of the respondent establishment. Both can be served with summons,
notices, orders and other legal processes of this Office at 116 Lilac Street,
Concepcion, Marikina City, NCR 1800 and /or No. 10 Goldland Mansions,
5th Avenue, Cubao, Quezon City NCR 1109.

2. Complainant GADY CLAVERIA ANDAYA is one of the project

employees hired by respondent company last November 2015. He can be
served with summons, notices and other legal processes of this Office at his
residence address located at 24 Zuniaga Street, Sta. Ana, San Mateo, Rizal
1850.

  
STATEMENT OF THE CASE
3. This is a complaint for illegal dismissal- Actual; nonpayment-
overtime pay, holiday pay and premium, rest day pay and premium, service
incentive leave, 13th month pay, separation pay, and night shift differentials;
regularization; moral and exemplary damages; attorney’s fees; and full back
wages and money claims.

STATEMENT OF THE FACTS

4. Respondents hired complainant ANDAYA as one of their project

workers sometime last November 2015. He was engaged by respondents in
several construction projects as a project employee for each project 3. His last
project employment was at Molino Boulevard, Bacoor City.

5. Complainant’s basic rate was the minimum wage mandated at the

province of Cavite. His work schedule is from 7 AM to 6 PM with employee
time in-between. Attached hereto are complainant’s pay slips 4 in the last
months of his project employment.

1
Annex “A”: Billing and Permit
2
Annex “B”: DTI Certification
3
Annexes “C”, “D”, and “E” and “F”: Four Separate Project Employment Contracts
4
Annex “G”- Series: Complainant’s Pay Slips
2
 6. At the onset of project employment, respondents gave the
complainant a copy of the Company Rules and Regulations 5 and explained to
him the meaning and impact of each rule to the status of his employment.,

7. Sometime last February 8, 2018, ANGELES TRINIDAD, the

owner of respondents’ project at Panapaan Project in Cavite, reported to the
Project-In-Charge Juldreine the demeanor of complainant Andaya at work.
He was observed to be staring blankly for long periodic episodes and doing
nothing in his work area. Trinidad asked the PIC for a replacement worker
considering the observed demeanor of the complainant.

8. Thereafter, PIC Juldreine brought Andaya to the HR Office for

assistance and possible redeployment. HR assessed Mr. Andaya and his
situation and offered to deploy him in another project. However, complainant
retorted that he wanted to go home and rest and therefore could not accept the
transfer.

9. HR, for its part, tried to understand complainant’s situation.

However, upon checking on his records, HR found out that the complainant’s
current project contract of employment was expiring by the end of February,
2018. Again, HR offered a new project assignment but the complainant
declined, thus, he was allowed to go home.

10. Sometime on February 13, 2018, complainant reported back to the

respondents’ office and informed HR he was going home to his province.
Thereafter, HR computed complainant’s 13th month pay, including his last
salary, and gave them to the complainant on that very day.

11. Thereafter, complainant left and was heard no more until

summons for a labor case filed by him was received by the respondents .

12. Subsequent conciliation meetings were heard before the SEnA. No

amicable settlement was arrived thereat, thus, complainant filed a full-blown
labor complaint.

13. During the mandatory conferences, no amicable settlement was

likewise reached by the parties either, Thus, the parties were directed to
submit respective position papers. Hence, this position paper.

ISSUES

i.
Whether or not complainant is a project employee
of the respondents or not and whether he is
entitled to regular employment;

ii.

5
Annex “H” - Company Rules and Regulations
3
 Whether or not complainant was illegally dismissed and
therefore entitled to his monetary claims;

iii.

Whether or not he is entitled to moral and exemplary

damages including attorney’s fees.

DISCUSSIONS AND ARGUMENTS

14. The issues are inter-related such that the discussions and arguments
are presented in an integrated manner.

COMPLAINANT IS A PROJECT EMPLOYEE

OF THE RESPONDENTS, NOT A REGULAR
EMPLOYEE.

15. Complainant is a project employee of the respondents. He was

assigned to render service to respondent’s projects. His assignments are
covered with project contracts. [supra]

16. In fact, whenever the contracts with clients expired, respondents

submitted corresponding Establishment Employment Report6 to the
Department of Labor.

17. The Supreme Court had the occasion to rule once again on the
issue of project employment in MA. CHARITO C. GADIA, ET. AL. vs.
SYKES ASIA , ET. AL. G.R No. 209499, January 28, 2015, citing among
other cases, to wit:

“In Omni Hauling Services, Inc. v. Bon, the Court

extensively discussed how to determine whether an employee
may be properly deemed project-based or regular, to wit:

A project employee is assigned to a project which begins and

ends at determined or determinable times. Unlike regular
employees who may only be dismissed for just and/or
authorized causes under the Labor Code, the services of
employees who are hired as "project[-based] employees" may
be lawfully terminated at the completion of the project.

According to jurisprudence, the principal test for determining

whether particular employees are properly characterized as
"project[-based] employees" as distinguished from "regular
employees," is whether or not the employees were assigned to
carry out a "specific project or undertaking," the duration (and
scope) of which were specified at the time they were engaged
6
Annex “I”: Establishment Employment Report
4
 for that project. The project could either be (1) a particular job
or undertaking that is within the regular or usual business of the
employer company, but which is distinct and separate, and
identifiable as such, from the other undertakings of the
company; or (2) a particular job or undertaking that is not
within the regular business of the corporation. In order to
safeguard the rights of workers against the arbitrary use of the
word "project" to prevent employees from attaining a regular
status, employers claiming that their workers are project[-
based] employees should not only prove that the duration and
scope of the employment was specified at the time they were
engaged, but also, that there was indeed a project. 

Verily, for an employee to be considered project-based, the

employer must show compliance with two (2) requisites,
namely that: (a) the employee was assigned to carry out a
specific project or undertaking; and (b) the duration and scope
of which were specified at the time they were engaged for such
project. ”

18. In the instant case, the employment status of Andaya as a project

employee is clearly established. Firstly, his project contract of employment
showed he was assigned to carry out a specific project or undertaking. This
complied with the first requisite.

COMPLAINANT CANNOT BE REGULARIZED

19. Secondly, the duration and scope of the work was specified at the
time Andaya was engaged for the project. And this was not done once. Every
time a new project contract of employment is executed, specifications were
included.

20. The fact that the tasks of the complainant is not a regular activity,
and the fact that he was hired to do a specific job over a specific period, did
not entitle him to regularization.

21. The complainant was hired to do a specific job over a specific

period of time. Contracts were executed by the complainant and the
respondents manifested that the employment indeed was a project
employment.

COMPLAINANT RECEIVED THE

MANDATORTY MINIMUM WAGE, INCLUDING
THE OTHER STATUTORY BENEFITS SUCH AS
OVERTIME PAY, PAY DURING HOLIDAYS, 13 TH
MONTH PAY, SERVICE INCENTIVE LEAVES,
NIGHT SHIFT DIFFERENTIAL AMONG OTHERS.

5
 22. Complainant did not include in his causes of action
underpayment of wages. The fact is that complainant was paid beyond the
regional minimum wage of Php 386 per day set for non-agriculture workers
in Cavite City7.

23. Complainant’s allegation that he was not paid his monetary

benefits is not supported by evidence. Thus, the allegation is without any
evidentiary proof and therefore does not have any relative evidentiary weight.
In contrast, respondents submit proofs of payment of such mandatory
monetary benefits.

24. Regarding the payment of overtime pay, complainant’s pay slips

[supra] as manifested in the preceding paragraphs would confirm that
complainant has been paid the mandatory statutory benefits such as the
overtime pay, holiday pay and night differentials.

25. As to the 13th month pay, respondents claim that they paid the
mandatory monetary benefits. Submitted herewith are proofs of payments
for the 13th month pay in years 2016 8, 2017 9, and 2018 10.

COMPLAINANT IS NOT ENTITLED TO

SEPARATION PAY, MORAL AND
EXEMPLARY DAMAGES AS WELL AS
ATTORNEY’S FEES.

26. There being no dismissal, complainant is not entitled to separation

pay. In Radar Security and Watchman Agency vs. Jose de Castro, G.R. No.
211210, December 02, 2015, the Supreme Court ruled:

“Worthy of emphasis is that the award of separation pay is

likewise inconsistent with a finding that there was no illegal
dismissal. Separation pay becomes due if an employee is
dismissed without just cause and without due process and is
therefore entitled to back wages and reinstatement.”

27. In the instant case, there was no illegal dismissal. Under the law,
he is not entitled to separation benefits. On the contrary and in fact, the
complainant resigned. He was not dismissed. Submitted hereto is his
resignation letter11 which also included a waiver, release and quitclaim.

7
Annex “J”: Minimum Wage Rates by Sector
8
Annex “K”: 13th Month Pay for 2016
9
Annex “L”: 13th Month Pay for 2017
10
Annex “M”: 13th Month Pay for 2018
11
Annex “N”: Waiver, Release and Quitclaim with Resignation.
6
COMPLAINANT IS NOT ENTITLED TO MORAL
AND EXEMPLARY DAMAGES, INCLUDING
ATTORNEYS FEES AND OTHER MONEY
CLAIMS

28. In Nazareno v. City of Dumaguete, the Court expounded on the

requisite elements for a litigant’s entitlement to moral damages, thus:
 
“Moral damages are awarded if the following elements exist in
the case: (1) an injury clearly sustained by the claimant; (2) a
culpable act or omission factually established; (3) a wrongful act
or omission by the defendant as the proximate cause of the
injury sustained by the claimant; and (4) the award of damages
predicated on any of the cases stated Article 2219 of the Civil
Code. In addition, the person claiming moral damages must
prove the existence of bad faith by clear and convincing
evidence for the law always presumes good faith. It is not
enough that one merely suffered sleepless nights, mental
anguish, and serious anxiety as the result of the actuations of the
other party. Invariably such action must be shown to have been
wilfully done in bad faith or with ill motive. Bad faith, under
the law, does not simply connote bad judgment or
negligence. It imports a dishonest purpose or some moral
obliquity and conscious doing of a wrong, a breach of a
known duty through some motive or interest or ill will that
partakes of the nature of fraud.” (Emphasis supplied.)”

29. Respondent did not commit acts that constitute bad faith.
Complainant could not show acts that were tainted with bad faith, offensive
to labor and done in a manner contrary to morals, good customs, or public
policies. Thus, complainant is not entitled to moral damages.

30. Also, in Kierulf, vs. Court of Appeals, GR Nos. 99301 and 99343,
March 13, 1997, the Supreme Court held that moral damages are meant to
compensate the claimant for any physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation and similar injuries unjustly caused. However, this ruling
could not apply in the instant case because not one of the elements
propounded therewith is present.

31. Likewise complainant could not be entitled to exemplary damages

for purposes of correction and to give example to others who are similarly
situated with respondents who are acting in wanton or oppressive manner.
Conclusively, respondents could not be liable for exemplary damages not
having acted in wanton or in an oppressive manner.

32. Considering the lack of evidence therefore, the claim for damages
is just a mere allegation. In Basay vs. Hacienda Consolacion, G.R No.
175532, April 19, 2010, the Supreme Court ruled that-
7
 “x x x The one who alleges a fact has the burden of
proving it and the proof should be clear, positive and
convincing. In this case aside from mere allegations, no
evidence was proffered by the petitioners that they were
dismissed from employment. x x x”

33. Unfortunately for the complainant, his mere allegations in the pro-
forma complaint is not tantamount to evidence. 12

RESPONDENTS ARE NOT LIABLE

FOR ATTORNEY’S FEES AND
OTHER LEGAL FEES

34. As stated in the preceding paragraph, without any valid and legal
basis, the complainant is not entitled to any of his monetary claims. Thus,
respondent should not be held liable for the complainant’s legal expenses and
whatever attorney’s fees he may have obligated himself thereat on the
matter.

RESERVATIONS

35.Respondents HANDYLEO and LEOPOLDO FLORENTINO

reserve the right to submit such other documents and evidence as may be
necessary to support their factual and legal allegations and defense.

PRAYER

WHEREFORE, it is respectfully prayed that the Labor Complaint

against respondents HANDYLEO CONSTRUCTION and LEOPOLDO
FLORENTINO, be dismissed for utter lack of merit, thus depriving
complainant of any relief in whatever form.

Other reliefs just and equitable are likewise prayed for.

Respectfully submitted.

June 4, 2014, Quezon City, Metro Manila, Philippines.

LEOPOLDO FLORENTINO
Respondent

LOMABAO GAN CARRILLO PASANA LAW FIRM

ATTY. DOROTEO MIGUEL S. CARRILLO

12
Martinez v. NLRC, 339 Phil. 176, 183 (1997).

8
 Counsel for the Complainants
Roll of Attorney No. 33835
PTR No. 5797811, Quezon City, 01-31-18
IBP OR No.031951, Pasig City, 01-31-18
MCLE Compliance No. V-0025299
10 Gold land Mansions 5th Avenue, Cubao QC

Copy furnished:

GADY C. ANDAYA
24 Zuniaga Street
Sta. Ana, San Mateo
Rizal 1850.

CONTINUE VERIFICATION

VERIFICATION AND CERTIFICATION FOR NON- FORUM

SHOPPING

I, JESSE CARDINAL P. MINOZA, of legal age, Filipino, and with principal

office address located at Lot 31, Block 9, Phase 1, E.P. Village, Brgy. Pinagsama, Taguig
NCR 1633 and/or No. 10 Goldland Mansions, 5th Avenue, Cubao, Quezon City NCR
1109, after being sworn to in accordance with law, do hereby depose and state, to wit:
THAT-

1. I am the President of CJC Car and Van Rental Inc. and one of the
respondents in this labor case; and in such capacity,
2. I have caused the preparation and filing of this Position Paper and to
execute this Verification and Certification of Non-Forum Shopping for and
in behalf of CJC CAR & VAN RENTAL INC.;
3. I have read the same and affirm that all allegations are true and correct
based on my personal knowledge and on authentic records; and
4. I have not commenced or caused to be 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 that to the best of my

9
 knowledge, no such action or proceeding is pending in the Supreme Court,
Court of Appeals, or any tribunal or agency; and
6. Should I learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals or any tribunal or
agency, I shall notify this Honorable Office within five (5) days from
such notice.
IN WITNESS WHEREOF, I have signed this instrument on January 8, 2018,
Quezon City, Philippines.
JESSE CARDINAL P. MINOZA
Competent ID No _____

SUBSCRIBED AND SWORN to before me, a Notary Public for and in the City of
Quezon, affiant exhibiting to me his Competent Identification as shown above.

NOTARY PUBLIC
Doc No. ____
Page No. ____
Book No.____
Series of 2018

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