Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION Quezon City

AARON BARON CARREON RAFFY GREG SANTAROSA Complainants, -versusTHE CLUB DE MANILLE/ RICHIE DE LEON Respondents. x-------------------------------------x NLRC Case No. 05-000000-13

MEMORANDUM
Complainants, through the undersigned counsel, most respectfully submit and present this memorandum in the above-titled case and aver that: PREFATORY STATEMENT This case refers to an action for reinstatement and recovery of backwages by the complainants for having been illegally dismissed, including unpaid wages (Service Incentive pay, Overtime pays, etc.), exemplary and moral damages plus attorneys fees. Complainants claim that they have performed services for The Club De Manille (Respondent) that is usually necessary or desirable in the usual business or trade of the latter, regardless of any oral agreement between them, making them Regular Employees. As Regular Employees, they can only be dismissed for just and authorized causes, not being the situation in the case at bar; complainants assert that they are entitled to such reliefs mentioned. Defendant on the contrary claims that complainants are not Regular Employees but are merely casual employees. The defendant asserts that the services rendered by the complainants was not usually necessary or desirable in the usual business or trade of the respondents as the complainants were only required to work, to help the regular waiters, during banquets where additional manpower is required. Defendant further asserts that complainants did not attain the requirements to avail of their right to security of tenure due to the expiration of their employment hence not entitled to such reliefs mentioned in their position paper.

STATEMENT OF THE FACTS Complainants Aaron Baron Carreon (Aaron) and Raffy Greg Santarosa (Raffy), is a resident of ABC Apartments in Brgy. A, Quezon City and RG Towers, R.Ville, Manila respectively were hired as waiters by herein Club de Manille (Club), located in Fil Tee Rich Drive, Makati City, a corporation duly organized under Philippine laws, and is engaged in the business of sports club facilities and food services that caters to both local and foreign membership. Aaron was hired by the Club on the 19th of May 2011and under the direct supervision of Club supervisors, Dawn Zaul Lasso and Stephen Hacovo but eventually dismissed on April 2013. Same as Aaron, Raffy was hired by the Club and under the direct supervision of the Clubs supervisors, only that he started his employment 3rd of April 2011 and eventually let go on February 08, 2013. During their employment, complainants worked for Eight (8) hours daily and sometimes more than eight hours but without any legal compensation for their overtime, including legal and special holidays pay. Complainant claims that their job falls under the definition of Regular employees as it is usually necessary or desirable in the usual business or trade of the Club. Entitled to Incentive leave pays, complainants were not also given such benefit for every year of service to the Club though considering the facts; they should have been entitled as they have rendered 2 years or so for the Club. Aaron and Raffy claims that their dismissal was illegal as due process was not accorded to them having only heard the phrase ayoko ng makita ang pagmumukha mo dito and that there was no valid and authorized causes for the cessation of their employment from the Club. Contrary to such claims, the Club maintains that the complainants were not regular but merely casual employees. That the complainants were only asked to attend to work if there is need for additional help, in favor of the existing team waiters of the Club, during days of unusual volume of banquets and events. The Club further claims that they were not required being present at work on days of ordinary or manageable demands hence, their presence or services is not usually necessary or desirable in the usual business or trade of the Club. Lastly, on one hand, the Club claims that the dismissal of Aaron is due to the expiration of his term of employment, that the requirements for the right of security of tenure to be availed of was not met, there being no reason for the Club to retain the complainant as one of its employees. On the other hand, Raffy was not directly dismissed. It was Raffy who opted not to attend to work anymore for the reason that he was caught and proven to have committed theft of company property while on duty.

ISSUES 1. Whether or not complainants are regular employees of the respondent. 2. Whether or not complainants were illegally dismissed from their job by respondent.

3. Whether or not complainants are entitled to reliefs prayed for in the complaint. ARGUMENTS I. Aaron and Raffy, complainants, are regular employees. a. Under Article 212 of the Labor Code, Aaron and Raffy falls under the definition of Employee: f. Employee includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has obtained any other substantially equivalent and regular employment. b. Under Article 280 of the Labor Code: The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed 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. Applying the laws mentioned above in the present case, Aaron and Raffy are deemed employees that are regular in the employment of the Club. The duration of their employment which lasted for more than Two (2) years with the employer cannot be disregarded. Repeated rehiring and continuing need for the employees services are sufficient evidence of the necessity and indispensability of his services to the employers business or trade. (Baguio Country Club Corp. vs. NLRC) The claim of the Club, that the services of Aaron and Raffy are not usually necessary or desirable in their usual trade or business cannot hold water. The Clubs contention, allowing it to be true for the mean time but not accepting their proposition, is defeating the very fact that they have

been, continuously and intentionally, allowed Aaron and Raffy in continuing their employment, rendering services to the Club for Eight (8) hours daily and sometimes beyond for Two (2) years. Even if the Club claims that there was an agreement with the complainants, that their employment be casual or for a fixed term, it has been held in the case of Purefoods vs NLRC that casual workers of knowingly and voluntarily agreed to the 5 month employment contract are never in equal terms with their employers. It is a clandestine scheme employed by the employer to stifle the complainants right to security of tenure and should there for be struck down and disregarded for being contrary to law, public policy and morals. Stated further in the case of Kay Products, Inc. vs Court of Appeals, 464 SCRA 544, a casual employee who has rendered at least one (1) year of service, whether continuous or broken is a regular employee. The status of regular employment under this category attaches to the casual worker on the day immediately after the end of his first year of service as such casual employee. Aaron and Raffy, though considered as casual employees by the Club, upon reaching the expiration of the one (1) year period of employment, continuous or broken became regular employees by the Club. It is a fact which the defendant can no longer question.

II.

Aaron and Raffy are regular employees and are dismissed illegally.

Length of service provides a fair yardstick for determining the when an employee initially hired on a temporary basis becomes a permanent one, entitled to security of tenure and other benefits of regularization. (William Uy Construction Corp. vs Trinidad, GR No.183250) Under the Labor Code, for an employees dismissal to be valid, (a) the dismissal must be for a valid cause, and (b) the employee must be afforded due process. The Procedural due process herein stated requires the employer to furnish an employee with two (2) written notices before the latter is dismissed (Ad Sonicmix vs Genovia, GR No. 169757): 1. The notice to apprise the employee of the particular acts or omission for which his dismissal is sought, which is equivalent of a charge; and 2. The notice informing the employee of his dismissal, to be issued after the employee has been given reasonable opportunity to answer and to be heard on his defense.

Aaron and Raffy was not afforded with due process of law hence their illegal dismissal. The notice rule was not given to the complainants and it was just the uttering of words ayaw ko na makita pagmumukha mo ditto that was given which falls very short from the requirement of the law. It can be further noted that even the reason for the termination from employment was not taken into consideration by the Club. Aaron and Raffy, after the expiration of the one (1) year period, qualifying them as regular employees have the right of security of tenure. Article 279 of the Labor Code: In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of senority right and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. These requirements were not met during the dismissal of Aaron and Raffy, contrary to law and without any justification, the manner for which the complainants are deemed illegal. To constitute valid dismissal from employment, two requisites must concur: (1) the dismissal must be for a just or authorized cause; and (2) the employee must be afforded an opportunity to be heard and to defend himself. (Nacague vs Sulpicio Lines, Inc. GR No.172589)

III.

Complainants Aaron and Raffy are entitled to the relifs prayed for. Article 282 of the Labor Code. Termination by employer An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties; (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and (e) Other causes analogous to the foregoing.

Applying the case above cited the termination of Aaron and Raffy are not legal. Termination of their employment was not for a just and authorized cause considering that their employment from being mere casuals were already turned into a regular employment upon the lapse of one (1) year after their employment. Due process was not also observed and as stated in the case of Ancheta vs Destiny Financial Plans, Inc. GR. No. 179702, the violation of the the employees right to statutory due process warrants the payment of nominal damages, the amount of which is addressed to the sound discretion of the court, taking into account the relevant circumstances. Article 83 of the Labor Code. Normal hours of work - The normal hours of work of any employee shall not exceed eight (8) hours a day. Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. For purposes of this Article, health personnel shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. Article 87 of the Labor Code. Overtime Work work may be performed beyond eight hours a day provided that the employee is paid for the overtime work an addirional compensation equivalent to his regular wage plus at least twenty-five percent thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate for the first eight hours on a holiday or rest day plus at least thirty percent thereof. Deemed as regular employees, Aaron and Raffy are entitled to their backwages and wages that falls under the Article 87 of the Labor Code including their overtime and holiday pays. The Club was indeed trying to tilt the scales in favor of his business to the detriment of the employees. Under R.A. 6715, employees who are illegally dismissed are entitled to full

backwages inclusive of allowances and other benefits or their monetary equivalent, computed from the time of their actual compensation was withheld from them up to the time of their actual reinstatement.

RELIEF WHEREFORE, it is respectfully prayed for unto this Honorable Office that judgment be rendered ordering defendant to: 1. Declare the complainants as illegally dismissed from their job in bad faith; 2. Immediately reinstate complainants to their former job with full back wages, including CBA benefits without loss of senority rights, from the time his compensation was withheld from them up to the time of their actual reinstatement; 3. Awarding moral damages in the amount of P100,000.00 as well as exemplary damages in the amount of P100,000.00; and 4. Awarding complainants of the following unpaid monetary value: a. b. c. d. e. Overtime pay; Holiday pay; Holiday premium; Rest day premium; and Service incentive leave;

5. Awarding ten (10) percent attorneys fees in accordance with law. Other reliefs as may be just and equitable are likewise prayed for. Quezon City, Philippines September 23, 2013.

Atty. Malakas Mambabae Counsel for the Complainants 123 Road II, Quezon City IBP. No.1236547;01/01/2013 PTR. No.2345433; 01/01/2013 Roll No. 12345 05/23/2005 MCLE No.0012345; 07/29/2013

Copy furnished: BEST LAW OFFICES ATTY. MARY LOVE LABIOS Counsel for Respondents Number One Street Paseo De Numero Uno, Makati City

EXPLANATION In view of time and manpower restrictions, the above Memorandum was served via registered mail as personal service could not be availed of without causing undue hardship to plaintiff.

(Sgd.) ATTY. MALAKAS MAMBABAE Counsel for Palintiff