Legal English

Atty. Teodoro
University of Cordilleras
April 6, 2018

LABOR POSITION PAPER

ATAL, Paolo Marcelo

LARIN, Christian John
VALBUENA, Anne Toinuelle
VALLEJO, Mars
LLB- 1E
 REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF LABOR AND EMPLOYMENT
NATIONAL LABOR RELATIONS COMMISSION
BAGUIO CITY

OFFICE OF LABOR ARBITER

MARS VALLEJO,
Complainant,

- Versus - CASE NO. 542271

MEGALYDON , INC.
Peter Parker and
Jack Sparrow
Respondents.
x-------------------------------------------------------x

POSITION PAPER
FOR THE COMPLAINANT

I. STATEMENT OF FACTS
The complainant is Mars Vallejo, 29 years old, Filipino, Single and a resident of
123, Camp Allen, Baguio City. The respondents in this case are MEGALYDON, INC.
(corporate employer); Mr. Peter Parker, Human Relations Department Head; and
Mr. Jack Sparrow, CEO and President of MEGALYDON, INC. Their office is located at
123, Holy Ghost, Baguio City.
Complainant Mars Vallejo has been working exclusively with MEGALYDON, INC.
as a graphic artist for 5 years. He was hired by MEGALYDON on September 2012.
This is his full-time job and only source of income. He is paid on a project basis
where he pays his own Philhealth, PAG-IBIG and SSS contributions (voluntary
contribution). As a project employee, he is not required to work regular work
hours provided he meets his deadlines and he is present in the work place. He is
subjected to company rules and regulations except for his regular work hours’
privilege. He is subject to a contract which requires him to use the designated
software of the company. His output is subject to the approval, revision and
rejection of the design manager.
On September 2017, Toinuelle Co., a foreign company, sought for
compalinant’s services on the condition that the Toinuelle’s software be used in
the production of the software. Complainant Mars Vallejo, being bombarded with
numerous deadlines and being unfamiliar with the foreign software, opted to use
the MEGALYDON software with which he was most comfortable with. Meanwhile,
Mr. Jack Sparrow, CEO, was informed of the incident and immediately called
complainant to his office where he shouted, “Antigas ng ulo mo! Insubordinate ka!
Get out of my company and do not return again!”. Complainant was sent to the
HR where his employment was immediately terminated. This is his first and only
incident with the company which immediately resulted to his termination. He was
only given one notice prior to his termination. Complainant went to NLRC to file
complaint for illegal dismissal after the failure of his 1st consolatory meeting.

II. ISSUES
A. Whether or not the employer-employee relationship applies in the case.
B. Whether or not there was illegal dismissal in this case
C. Whether or not there was a violation of the right to due process.

III. DISCUSSION
A. Is there an employer-employee relationship?
Yes. There was employer-employee relationship between the parties
involved in the case. The complainant is considered as a regular employee
because he was hired for 5 consecutive years and he has performed tasks which
were vital, necessary and indispensable to the operations of the company.
Likewise, Mars complies with Economic Dependency test that classifies as
employees those who are economically dependent on the business of the
employer. This further establishes the employee-employer relationship.
The elements of employee-employer relationship are:
A.1 The selection and engagement of the employee
Complainant, prior to his termination, has been working with Megalydon
Company for five years, and is working exclusively for Megalydon. A project
employee is one who is employed for a given project and his employment
contract terminates after the project is finished. A regular employee, on the other
hand, is an employee who is employed for a certain time, regardless of how many
projects he handles.
A regular employee is one hired for activities which are necessary or
desirable in the usual business of the employer, and therefore, enjoys the benefit
of security of tenure guaranteed by the constitution. A regular employee cannot
be terminated except for just and authorized causes provided by law.
A project employee, on the other hand, is one who is hired for only a
specific project or undertaking. The length of period and scope of the work must
be specified at the time that the employees were hired for the project.
As in accordance to the case of Maraguinot v. NLRC, a project employee can be
considered as a regular employee if the following are coincide with such
requirements:
“A project employee or a member of a work pool may acquire the status of a
regular employee when the following concur:
1) There is a continuous rehiring of project employees even after cessation of a
project; and
2) The tasks performed by the alleged project employee are vital, necessary
and indispensable to the usual business or trade of the employer.”
Therefore, Mars is considered as a regular employee due to the reason that he
was regularly employed in the company for five straight years and that he has
performed tasks which were vital, necessary and indispensable to the operations
of the company.

A.2 The payment of wages

Though complainant is paid on project basis, he has been paid regularly for
the past 5 years. The mode of payment reflects a boundary-system type of
payment. The spirit of the law always prevails against the letter of the law.
Classifying the complainant as a project employee and depriving him of his
benefits is an abuse of his right and contradicts the intention of the law.
He also falls under the Economic Dependency and Economic Realities test.
The Department of Labor devised an “economic realities” test that they use (and
which employers and employees can use) to guide them as to the status of a
worker. These factors are helpful guides in resolving whether a worker is truly in
business for himself or herself, or like most, is economically dependent on an
employer.
You can start to hone in on whether a worker is an employee if:
1. The work performed is an integral part of the employer’s business.
2. The worker’s managerial skills don’t affect his or her opportunity for profit
and loss.
3. The worker has little to no investments in facilities and equipment.
4. The worker is a skilled trade worker (although this may be irrelevant).
5. The worker has some amount of permanency with the employer.
6. The employer has ultimate control over the pay, hours, and type of work
performed.
Under the Economic Dependency test, this is the question managers and
business owners should ask themselves before classifying their workers as
employees or independent contractors. It states that “Workers who are
economically dependent on the business of the employer, regardless of skill level,
are considered to be employees, and most workers are employees.”
Complainant has passed both tests and can clearly establish its employee-
employer relationship.
A.3 The power of dismissal
 Complainant is subject to comply with the company rules and regulations.
The violation of which, can result to his dismissal. As stated in the facts,
Complainant had to comply with deadlines and various conditions. Non-
compliance would mean sanctions and eventual dismissal on his part.
The company maintains a sense of authority and discipline over the
complainant which may be used to legally dismiss him provided there are valid
grounds.
A.4 The employer’s power to control the employee on the means and
methods by which the work is accomplished.
Using the Two-tiered test or Multi factor test, this test is used in conjunction
with the economic reality test to determine the existence of employment relation
between the parties. This two-tiered test involves the following tests:
1. The putative employer’s power to control the employee with respect to
the means and methods by which the work is to be accomplished; and
2. The underlying economic realities of the activity or relationship.
For the last element, Mars’s works are subject to the approval, revision and
rejection of his manager. Also, Mars is subjected to company rules and regulations
and is required to be present in his workplace, and that he needs the designated
software for his projects. It is clear that the means and methods by which the
work is accomplished is controlled by the employer. Complainant does not have
the freedom and flexibility to choose his software according to his compatibility
and comfortability.
B. Is there illegal dismissal? Is the ground for dismissal valid?
Yes. Though insubordination is a valid ground for termination, the gravity
and overall degree of insubordination is taken into consideration.
The Supreme Court held in the case Gold City Integrated Port Services, Inc.
vs. NLRC that:
“not every case of insubordination or willful disobedience by an employee of a
lawful work-connected order of the employer or its representative is reasonably
penalized with dismissal. There must be reasonable proportionality between, on
the one hand, the willful disobedience by the employee and , on the other hand,
the penalty imposed therefor”.
In a similar case in Austria vs. NLRC, it was held that:
“For misconduct to be considered serious, it must be of such grave and
aggravated character and not merely trivial or unimportant”.
In Stolt-Nielsen Marine Services (Phils.) Inc. vs. NLRC, for willful
disobedience of the employer’s lawful orders can be a just cause for dismissal of
an employee, the requisites are :
(a) the employee’s assailed conduct must have been willful or intentional, the
willfulness being characterized by a “wrongful and perverse attitude” ; and
(b) the order violated must be reasonable, lawful, made known to the employee
and pertains to the duties which the employee has been engaged to discharge.
 Some incidents, which in the normal course of events may occur one way or
another, are not synonymous to “insubordination” and “willful disobedience”
that are punishable by dismissal as normally erroneously imputed by the
companies.

In conclusion, as held in Hongkong Shanghai Banking Corporation vs. NLRC,

it stated that:
“a grave injustice is committed in the name of justice when the penalty imposed is
grossly disproportionate to the wrong committed. To be lawful, the cause for
termination must be a serious and grave malfeasance to justify the deprivation of
a means of livelihood.”
There is no question that the employer has the inherent right to discipline,
including that of dismissing its employees for just causes. This right is, however,
subject to reasonable regulation by the State in the exercise of its police power.
The finding of the NLRC that an employee violated company rules and regulations
is subject to scrutiny by the Court to determine if the dismissal is justified and, if
so, whether the penalty imposed is commensurate to the gravity of the offense
The insubordination must be reviewed to see whether the employee should be
rightfully dismissed. In the case of PLDT vs. NLRC, the court ruled that:
“Even when an employee is found to have transgressed the employer’s rules, in
the actual imposition of penalties upon the erring employee, due consideration
must still be given to his length of service and the number of violations committed
during his employ. Where a penalty less punitive would suffice, whatever missteps
may have been committed by the worker ought not to be visited with a
consequence so severe such as dismissal from employment “
Pursuant to Article 279 of the Labor Code, an employee who is unjustly
dismissed from work is entitled to reinstatement, payment of backwages,
separation pay, payment of damages, and award of attorney’s fees.

C. Is there a violation of his right to due process?

There is a violation of his right to due process. The two-notice constitutional
requirement and the absence of a conference where the employees are given the
opportunity to present and rebut evidence makes the dismissal illegal.
As stated in King of Kings Transport v Dela Fuente, due process under the labor
Code, involves two aspects:
1. Substantive valid, valid, and authorized causes of termination of employment
under the Labor Code, and
2. Procedural manner of dismissal.
Meanwhile, in order that an employee may be dismissed from employment, as
stated in MGG Marine v NLRC, the twin requirements of notice and hearing must
be complied with. With regards to the requirement of notice, the employee had
received two notices: one, being the intention of the employer to dismiss,
indicating the reason for the proposed dismissal, and two, the notice of the
decision to dismiss; and an opportunity to to answer or rebut the charges against
him in between such notices.
Illegal dismissal without right to due process as in accordance to the case of King
of Kings Transport v. Velasco states that:
“That if the dismissal is done without due process, the employer should
indemnify the employee with nominal damages.”
As such our client’s right to due process was violated as he was immediately
dismissed without any of the procedure for a proper dismissal neither of which
was not complied with by the company.
Given the circumstances that Mars was dismissed immediately (when Jack
Sparrow shouted at Mars “Antigas ng ulo mo! Insubordinate ka. Get out of my
company and do not return again!), a violation of the termination procedure,
there was clear violation of his constitutional right.

IV. PRAYER

WHEREFORE, facts and premises considered, it is respectfully prayed

that judgment be issued declaring that the complainant has been
ILLEGALLY DISMISSED by the respondents.

FURTHER, it is respectfully prayed that the respondents be ordered to

pay or issue to the complainant, as the case may be:
(a) BACKWAGES from the date of his illegal dismissal on November
18, 2017 up to the time he is REINSTATED to his former position without
loss of seniority and other benefits.
(b) MORAL DAMAGES of P500,000.00.
(c) EXEMPLARY DAMAGES of P500,000.00.
(d) Attorney’s fees of Ten Percent of Damages AWARDED.
(e) His CERTIFICATE OF EMPLOYMENT whether or not he is
reinstated.
FINALLY, the complainants respectfully pays for such and other reliefs as
may be deemed just and equitable in the premises.
Baguio City, December 15, 2017.

MR. MARS VALLEJO

Complainant
Address: 123, Camp Allen, Baguio City

SUBSCRIBED AND SWORN TO BEFORE ME in Baguio City on December 15,

2017, affiant showing his competent proof of identity as follows: LTO
Driver’s License No. 1204-45845