John Dominic T. Buhangin Labor Law Review I Prof. G.

Santos

REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT
NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
PPSTA BLDG., BANAWE AVE., QUEZON CITY

OFFICE OF LABOR ARBITER x x x

ROOM 311, 3RD FLOOR, PPSTA BLDG.

RAY THOMAS,
Complainant,
NLRC RAB NCR
- Versus - CASE NO. NCR-

X CORPORATION.
Respondent.
x-------------------------------------------------------x

POSITION PAPER FOR THE COMPLAINANT

The COMPLAINANT, pro se, respectfully states:

I. Statement of the Facts

1. Ray Thomas and X Corp. entered an apprenticeship agreement for six months.

2. Considering the urgent need of the company and Ray Thomas being an excellent
student and worker, the company immediately required Ray Thomas to start working
as an apprentice without prior approval of the apprenticeship agreement by the
DOLE.

3. Six months later, Ray Thomas was verbally informed by X Corp. that his
apprenticeship agreement is already over and bid him good luck to his future
endeavors.

4. Ray Thomas wasted no time in filing a complaint for illegal dismissal, praying or
reinstatement and other statutory benefits.

II. Arguments

5. That the apprenticeship agreement is void for not being registered with the DOLE,
thereby making Ray Thomas a regular employee.
John Dominic T. Buhangin Labor Law Review I Prof. G. Santos

6. That being a regular employee rather than an apprentice, Ray Thomas was illegally
dismissed by X Corp.

III. Discussion

7. According to Nitto Enterprises v. NLRC. G.R. No. 114337, September 29, 1995:

a. Article 57 of the Labor Code provides that the State aims to "establish a
national apprenticeship program through the participation of employers,
workers and government and non-government agencies" and "to establish
apprenticeship standards for the protection of apprentices." To translate such
objectives into existence, prior approval of the DOLE to any apprenticeship
program has to be secured as a condition sine qua non before any such
apprenticeship agreement can be fully enforced. The role of the DOLE in
apprenticeship programs and agreements cannot be debased.

b. Hence, since the apprenticeship agreement between petitioner and private

respondent has no force and effect in the absence of a valid apprenticeship
program duly approved by the DOLE, private respondent's assertion that he
was hired not as an apprentice but as a delivery boy ("kargador" or
"pahinante") deserves credence. He should rightly be considered as a regular
employee of petitioner as defined by Article 280 of the Labor Code:

i. Art. 280. Regular and Casual Employment. The provisions of

written agreement to the contrary notwithstanding and regardless of
the oral agreement of the parties, an employment shall be deemed to
be regular where the employee has been engaged to perform activities
which are usually necessary or desirable in the usual business or trade
of the employer, except where the employment has been fixed for a
specific project or undertaking the completion or termination of which
has been determined at the time of the engagement of the employee or
where the work or services to be performed is seasonal in nature and
the employment is for the duration of the season.

ii. An employment shall be deemed to be casual if it is not covered by the

preceding paragraph: Provided, That, any employee who has rendered
at least one year of service, whether such service is continuous or
broken, shall be considered a regular employee with respect to the
activity in which he is employed and his employment shall continue
while such activity exists.

8. As a regular employee, Ray Thomas six months with X Corp. was in fact his period.
Art. 281 of the Labor Code provides:

a. Art. 281. Probationary Employment. Probationary employment shall not

exceed six (6) months from the date the employee started working, unless it is
John Dominic T. Buhangin Labor Law Review I Prof. G. Santos

covered by an apprenticeship agreement stipulating a longer period. The

services of an employee who has been engaged on a probationary basis may
be terminated for a just cause or when he fails to qualify as a regular
employee in accordance with reasonable standards made known by the
employer to the employee at the time of his engagement. An employee who is
allowed to work after probationary period shall be considered a regular
employee.

9. Having established that Ray Thomas is a regular employee, the act of arbitrarily
dismissing him after six months constitutes illegal dismissal. The case of Pepsi-Cola
Bottling Co., Inc. v. NLRC, G.R. No. 127529, December 10, 1998, states:

a. The law requires that the employer must furnish the worker sought to be
dismissed with two (2) written notices before termination of employee can be
legally effected: (1) notice which apprises the employee of the particular acts
or omissions for which his dismissal is sought; and (2) the subsequent notice
which informs the employee of the employer's decision to dismiss him (Sec.
13, BP 130; Sec. 2-6 Rule XIV, Book V, Rules and Regulations Implementing
the Labor Code as amended). Failure to comply with the requirements taints
the dismissal with illegality. This procedure is mandatory, in the absence of
which, any judgment reached by management is void and in existent (Tingson,
Jr. vs. NLRC, 185 SCRA 498 [1990]; National Service Corp. vs. NLRC, 168
SCRA 122; Ruffy vs. NLRC. 182 SCRA 365 [1990]).

IV. WHEREFORE, premises considered, it is respectfully prayed that judgment be issued

reinstating Ray Thomas as well as awarding him payment of backwages and other
statutory benefits.

Quezon City, July 21, 2017.

Atty. XXX XXX

Counsel for Complainant
PTR No. XXXXX
MCLE Compliance No. XXXXX
IBP No. XXXXXX
Roll No. XXXXX
John Dominic T. Buhangin Labor Law Review I Prof. G. Santos

SUBSCRIBED AND SWORN TO BEFORE ME in xxx City on July 8, 2017,

affiant showing his competent proof of identity as follows: LTO Drivers License No.
x x x.

Notary Public
Doc. No.
Page No.
Book No.
Series of 2017.

Copy Furnished:

Atty. Xxx Xxx

Counsel for Respondents