Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch VII
Cebu City
WENIE Y. SINAJONON, RAMALOU R. BACAT
and JOEPIT T. CAMPANER,
Complainant.
-versus-

NLRC RAB VII CASE No. 01-0174-11

MARC & MATTHEAU'S HOUSE OF PASTRIES,

CANTEEN CONCESSION & CATERING SERVICES
and MARYBETH TE CHAN
Respondents.
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POSITION PAPER
Complainants, by counsel, unto this Honorable Office, respectfully states:
STATEMENT OF THE CASE
This case filed by complainants against respondents is one for illegal dismissal and
non-payment of salary, holiday pay, 13th month pay, allowances and separation pay.
THE PARTIES
Complainant Wenie Y. Sinajonon (hereinafter SINAJONON) is of legal age, Filipino,
and with address at Sitio Kawayan, Banawa, Cebu City; complainant Ramalou R. Bacat
(hereinafter BACAT) is of legal age, Filipino, and with address at Ompad St., Lapulapu City;
and complainant Joepit T. Campaner (hereinafter CAMPANER) is of legal age, Filipino and
with address at Ibo Relocation Site, Lapulapu City.
Respondent Marc & Mattheau's House of Pastries, Canteen Concession & Catering
Services is a corporation duly organized and existing under the laws of the Philippines, with
business address at 11 J. Fortich St., Banawa, Cebu City, while respondent Marybeth Te Chan
is the Chief Executive Officer/President of respondent corporation. Marc & Mattheau's was
the canteen concessionaire of Convergys, and is still the canteen concessionaire of
Teleperformax and JP Morgan and Chase call centers.
FACTS OF THE CASE
Complainant SINAJONON was employed by respondent corporation from November
18, 2003 to December 23, 2013 as a cook, with a work schedule of 7:00 A.M. to 4:00 P.M. At
the time of his dismissal, she was supposed to be receiving a gross monthly rate of P9,000
plus a non-taxable allowance of P1,400 payable every 15 th and 30th of the month, as stated in
Section 2 of the Employment Contract (attached as Annex "A") entered into between
respondent corporation and complainant. The said stipulation corresponds to a daily wage of
P346.15 and a daily allowance of P53.85, or a total of P400.00 per day.

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Complainant BACAT was employed by respondent corporation from December 12,

2012 to December 23, 2013 as a steward, with a work schedule of 10:00 P.M. to 7:00 A.M.
At the time of his dismissal, he was supposed to be receiving a daily wage of P327.00.
Complainant CAMPANER was employed by respondent corporation from April 21,
2013 to December 23, 2013 as a cook, with a work schedule of 10:00 P.M. to 7:00 A.M since
July 2013. At the time of his dismissal, he was supposed to be receiving a daily wage of
P350.00.
Complainants were required to work for 26 days of the month, including holidays.
Complainants worked for respondent corporation without any incident from their
differing dates of hiring to December 23, 2013. December 24 and 25, 2013 were nonworking days for the corporation.
On December 25, 2013, complainant SINAJONON sent an SMS message to outlet
supervisor "Jessie" through Jessie's phone 0916-591-9655. Jessie replied on December 25,
2013, 19:34:15 the following message: "FYI: Sked for tom, ate bebie [complainant
SINAJONON] no duty, jimboy no duty, Alison ni [sic] duty, mark 2pm, eric 2pm,
greg 2pm, joepit [complainant CAMPANER] 10pm, janico off, ram [complainant
BACAT] 10pm, Ariel 11 pm."
The next day, Jessie sent another SMS to complainant SINAJONON, stating: "ate
bebie, as of now la jud ta operation, we will txt kng wen balik ang opertion. [sic] NO
OPERATION TODAY.. Wla sad ko kbaw wen balik" (rough translation: Ate Bebie, as of
now we are closed for business; we will text you when we will be back in business. NO
OPERATION TODAY. I also don't know when we will be back in business; SMS received by
complainant SINAJONON on December 26, 2013, at 14:58:58). (These two messages are
still archived by complainant SINAJONON in her phone, and can be inspected by the
Honorable Labor Arbiter.)
On December 26, 2013, complainant CAMPANER went to his place of work at the
corporation's commissary at 13 F. Gochan St., Mabolo, Cebu City. However, he found the
commissary padlocked, so he went home. The next day he received an SMS message from
supervisor Jessie, using the phone number 0916-591-9655, that the commissary is already
closed.
Previously, respondent corporation had trouble keeping up with the payments of
salaries due its employees. On the night of August 15, 2013, "Ana" and her husband "Ellie"
had a meeting with the employees at the Go Chan commissary and told them that them they
could not give them their pay that day. On that day, the corporation has not yet paid the
salaries for the payroll period July 26, 2013 to August 10, 2013 (15 days) and August 11 to
15, 2013 (5 days), or a total of 20 days. The employees were promised that they would be
paid their unpaid salaries as soon as the payment for the Convergys (CVG) canteen
franchising is received on October 5, 2013. That day came, but the salaries were still unpaid.
The employees demanded for the payment of the 20-day unpaid salaries, and during the
second week of October 2013, a partial payment for four days was issued.
On August 20, 2013, a new manager took over and changed the payment schedule to
weekly. By December 2013, the respondent corporation still has not paid 16 days worth of
work from each employee.
On January 3, 2014, complainants, along with four others who were also dismissed on
December 26, 2013, went to the Regional Arbitration Branch of the National Labor Relations
Commission to request payment of the 16 days due them. Two conciliation/mediation
meetings under the SENA were conducted in January. On January 17, 2014, SENA Officer /
Conciliator-Mediator Oliver T. Emia issued a Certificate to Proceed (attached as Annex "B")
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for failure of complainants and respondents to come to an agreement. Meanwhile, the other
four accepted P2,500 as partial payment of the 16-day unpaid salaries.
Mandatory conciliation was called for on February 18 and 27, 2014, but respondents
failed to appear, hence this position paper.
ISSUES
1. Whether or not complainants were illegally dismissed; and
2. Whether or not they are entitled to their money claims.
ARGUMENTS/DISCUSSION
Before a case for illegal dismissal can prosper, an employer-employee relationship
must first be established [Sy v. Court of Appeals, 446 Phil. 404, 413 (2003)].
The well-settled tests to determine the existence of an employer-employee
relationship are as follows: (1) the selection and engagement of the employee; (2) the
payment of wages; (3) the power of dismissal; and (4) the power to control the employees
conduct. The factual situations of all three complainants pass these tests.
Complainant SINAJONON was hired by respondent corporation on November 18,
2003 (selection); he was receiving a daily wage of P343.00 plus an allowance of P57.00
(payment of wages); he was refused entry into the respondent's commissary on December 26,
2013, hence terminating his employment (dismissal); and he was required to report from 7:00
A.M. to 4:00 P.M. (control of conduct).
That complainant SINAJONON is an employee of the respondent corporation is
proved by the Employment Contract (Annex "A") between SINAJONON and respondent
corporation dated April 5, 2013, where respondent corporation repeatedly referred to
complainant SINAJONON as an employee, most clearly in Section 6, to wit: "As an MMCS
employee, you are expected to abide by all the Company policies, rules and regulations xxx"
Furthermore, respondent corporation issued identification card numbered 021470 to
complainant SINAJONON, wherein she was designated as "Sous Chef". At the back of the
said ID card is clearly written the words: "This ID card is non-transferable and valid only
during your employment with Marc & Mattheau's." (emphasis ours). A copy of said ID and
its back side is herein attached as Annex "C".
Complainant BACAT was hired by respondent corporation on December 12, 2012
(selection); he was receiving a daily wage of P327.00 (payment of wages); he was refused
entry into the respondent's commissary on December 26, 2013, hence terminating his
employment (dismissal); and he was required to report from 10:00 P.M. to 7:00 A.M. (control
of conduct).
Complainant CAMPANER was hired by respondent corporation on April 21, 2013
(selection); he was receiving a daily wage of P350.00 (payment of wages); he was refused
entry into the respondent's commissary on December 26, 2013, hence terminating his
employment (dismissal); and he was required to report from 10:00 P.M. to 7:00 A.M. (control
of conduct).
That CAMPANER was an employee of respondent corporation is further proved by
an identification card numbered 061476 issued by respondent corporation to complainant
CAMPANER, where CAMPANER was designated as a "cook", a copy of which is herein
attached as Annex "D", as well as a company payslip for the payroll period July 26 to August
10, 2013 issued to the said complainant by the respondent corporation (attached as Annex
"E").
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It must be noted that there is no hard or fast rule designed to establish the elements of
employer-employee relationship. Any competent and relevant evidence to prove the
relationship may be admitted, including, but not limited to, identification cards (Meteoro v.
Creative Creatures, Inc., G.R. No. 171275, July 13, 2009, 592 SCRA 481, 492-493).
In the case of Television and Production Exponents Inc. and/or Tuviera v. Servana
(G.R. No. 167648, January 28, 2008), the Supreme Court stated, "[i]t has been in held that in
a business establishment, an identification card is usually provided not just as a security
measure but to mainly identify the holder thereof as a bona fide employee of the firm
who issues it." (emphasis supplied). SINAJONON was designated as "Sous Chef", while
CAMPANER was designated as a "Cook". Both positions were indispensable in the
respondent corporation's business.
Hence, clearly, complainants SINAJONON, BACAT and CAMPANER were regular
employees of respondent corporation Marc & Mattheau's House of Pastries, Canteen
Concession & Catering Services.
Being regular employees of respondent corporation, it is their right to legally demand
what, under the law, are theirs as regular employees. Verily, the respondent corporation itself
recognizes their obligations. In Section 3 of the Employment Contract between complainant
SINAJONON and respondent corporation, they explicitly informed the complainant: "You
shall be entitled to all the benefits/privileges under the law." These "benefits/privileges under
the law" certainly includes the payment of proper salaries, holiday pay, 13 th month pay, and
separation pay.
Having recognized their obligations, respondent corporation cannot shirk away from
its responsibilities now that it is brought to account.
On the issue of illegal dismissal:
Complainants are regular employees of the respondents. Their services as sous chef
(complainant SINAJONON), steward (complainant BACAT) and cook (complainant
CAMPANER) are necessary and indispensable to the business of respondents, which is
"canteen concession & catering services". Certainly, a "canteen concessionaire" and "caterer"
cannot exist without the necessary and indispensable help of sous chefs, stewards and cooks.
In the absence of just and/or authorized causes of dismissal, respondents could not
just tell complainants not to report to work because there is "NO OPERATION TODAY".
Respondents could not just lock out of the premises of the corporation the complainants. It
could not be allowed for any corporation to dismiss employees by the simple expedience of
shutting down operations in one of its locations and just basically padlock the entire place.
Such act would make a mockery of our labor laws and render inoperative the Constitution's
mandate to "afford full protection to labor" (Sec. 3, Art. XIII).
Clearly, respondents dismissed the complainants illegally. It is such an elementary
rule that it need not be stressed again that in illegal dismissal cases, the burden of proof of a
valid dismissal is always upon the employer. Here, respondents do not have an iota of
evidence that they had gone through the proper procedure of dismissing complainants. There
was neither a just nor an authorized cause to dismiss complainants. They were simply
dismissed.
On complainant SINAJONON's monetary claims:
Respondents owe complainant SINAJONON the 16 days worked from June 26, 2013
to August 15, 2013, or a sum of P400.00 x 16 = P6,400.

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Complainant SINAJONON started working with respondent corporation on

November 18, 2003. From then until her dismissal on December 26, 2013, she never received
the benefits of the service incentive leave under Article 95 of the Labor Code. Starting 2004,
SINAJONON was entitled to a service incentive leave of five (5) days per year. Hence, she is
entitled to the cash equivalent of fifty (50) worked days, that is, P20,000.00, at her daily rate
of P400.00. It should be noted that while the daily rate claimed was her daily rate at the time
of her dismissal, and there was an increase of the minimum wage through the years, the legal
interest of the service incentive leave cash equivalent more than offsets the higher rate
claimed for earlier years.
Respondents also failed to pay complainant SINAJONON her holiday pays for the 10
years she worked with them. As there are 12 regular holidays, she is entitled to a holiday pay
equivalent to 120 worked days, that is, P48,000.00, at her daily rate of P400.00. It should be
noted that while the daily rate claimed was her daily rate at the time of her dismissal, and
there was an increase of the minimum wage through the years, the legal interest of the
holiday pays legally due her more than offsets the higher rate claimed for earlier years.
Respondents also failed to pay complainant SINAJONON her 13 th month pay for the
year 2013. This is equivalent to 26 days salary, or P10,400.00.
For the illegal dismissal, consistent with existing jurisprudence, complainant
SINAJONON is entitled to one month pay for every year of service as separation pay in lieu
of reinstatement, or a total of P10,400.00 x 10 = P104,000.00.
For the wounded feelings suffered by complainant SINAJONON, and the deprivation
of her rights which caused her sleepless nights and anxiety as her job was her source of living
and the bread and butter of her family to survive and live, complainant SINAJONON is
entitled to moral damages in the reasonable order of P10,000.00.
Finally, respondents should be made to pay complainant SINAJONON exemplary
damages to set an example to the respondents and the public at large that such blatant
disrespect of the rights of employers shall not be countenance. An amount of P10,000 is
reasonable.
In summary, respondents should be made to pay complainant SINAJONON the
following:
a.
b.
c.
d.
e.
f.
g.

16 days worked from June 26, 2013 to August 15, 2013 - P 6,400.00
Service incentive leave cash equivalent for 10 years P20,000.00
Holiday pay for the last 10 years P48,000.00
13th month pay for the year 2013 P10,400.00
Separation pay in lieu of reinstatement P104,000.00
Moral damages P10,000.00
Exemplary damages P10,000.00

or a total of P208,800.00.
On complainant BACAT's monetary claims:
Respondents owe complainant BACAT the 16 days worked from June 26, 2013 to
August 15, 2013, or a sum of P327.00 x 16 = P5,232.00.
Complainant BACAT started working with respondent corporation on December 12,
2012. Hence, at the time of his dismissal, he was already entitled to a five-day service
incentive leave, or a sum of P327.00 x 5 = P1,635.00.

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Respondents also failed to pay complainant BACAT his holiday pay for the year
2013, or a total of 12 days. That is equivalent to the amount of P327.00 x 12 = P3,924.00.
Respondents also failed to pay complainant BACAT her 13th month pay for the year
2013. This is equivalent to 26 days salary, or P8,502.00.
For the illegal dismissal, consistent with existing jurisprudence, complainant BACAT
is entitled to one month pay for every year of service as separation pay in lieu of
reinstatement, or a total of P8,502.00.
For the wounded feelings suffered by complainant BACAT, and the deprivation of her
rights which caused her sleepless nights and anxiety as her job was her source of living and
the bread and butter of her family to survive and live, complainant BACAT is entitled to
moral damages in the reasonable order of P10,000.00.
Finally, respondents should be made to pay complainant BACAT exemplary damages
to set an example to the respondents and the public at large that such blatant disrespect of the
rights of employers shall not be countenance. An amount of P10,000 is reasonable.
In summary, respondents should be made to pay complainant BACAT the following:
a.
b.
c.
d.
e.
f.
g.

16 days worked from June 26, 2013 to August 15, 2013 - P5,232.00
Service incentive leave cash equivalent P1,635.00
Holiday pay for the year 2013 P3,924.00
13th month pay for the year 2013 P8,502.00
Separation pay in lieu of reinstatement P8,502.00
Moral damages P10,000.00
Exemplary damages P10,000.00

or a total of P47,795.00.
On complainant CAMPANER's monetary claims:
Respondents owe complainant CAMPANER the 16 days worked from June 26, 2013
to August 15, 2013, or a sum of P350.00 x 16 = P5,600.00.
Respondents also failed to pay complainant CAMPANER his holiday pay for the year
2013, or a total of 12 days. That is equivalent to the amount of P350.00 x 12 = P4,200.00.
Respondents also failed to pay complainant CAMPANER pro-rated 13 th month pay
for the year 2013. This is equivalent to 8/12th of 26 days salary, or P6,066.67.
For the illegal dismissal, consistent with existing jurisprudence, complainant
CAMPANER is entitled to one month pay for every year of service as separation pay in lieu
of reinstatement, or a total of P9,100.00.
For the wounded feelings suffered by complainant CAMPANER, and the deprivation
of her rights which caused her sleepless nights and anxiety as her job was her source of living
and the bread and butter of her family to survive and live, complainant CAMPANER is
entitled to moral damages in the reasonable order of P10,000.00.
Finally, respondents should be made to pay complainant CAMPANER exemplary
damages to set an example to the respondents and the public at large that such blatant
disrespect of the rights of employers shall not be countenance. An amount of P10,000 is
reasonable.

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In summary, respondents should be made to pay complainant CAMPANER the

following:
a.
b.
c.
d.
e.
f.

16 days worked from June 26, 2013 to August 15, 2013 - P5,600.00
Holiday pay for the year 2013 P4,200.00
13th month pay for the year 2013 P6,066.67
Separation pay in lieu of reinstatement P9,100.00
Moral damages P10,000.00
Exemplary damages P10,000.00

or a total of P44,966.67.
PRAYER
WHEREFORE, premises considered, it is most respectfully prayed that this
Honorable Office render judgment:
a.) Finding the respondents guilty of illegal dismissal; and
b.) Ordering the respondents, jointly and severally, to pay complainants the
following:
To complainant SINAJONON:
a.
b.
c.
d.
e.
f.
g.

16 days worked from June 26, 2013 to August 15, 2013 - P5,232.00
Service incentive leave cash equivalent P1,635.00
Holiday pay for the year 2013 P3,924.00
13th month pay for the year 2013 P8,502.00
Separation pay in lieu of reinstatement P8,502.00
Moral damages P10,000.00
Exemplary damages P10,000.00

or a total of P208,800.00.
To complainant BACAT:
a.
b.
c.
d.
e.
f.
g.

16 days worked from June 26, 2013 to August 15, 2013 - P5,232.00
Service incentive leave cash equivalent P1,635.00
Holiday pay for the year 2013 P3,924.00
13th month pay for the year 2013 P8,502.00
Separation pay in lieu of reinstatement P8,502.00
Moral damages P10,000.00
Exemplary damages P10,000.00

or a total of P47,795.00.
To complainant CAMPANER:
a.
b.
c.
d.
e.
f.

16 days worked from June 26, 2013 to August 15, 2013 - P5,600.00
Holiday pay for the year 2013 P4,200.00
13th month pay for the year 2013 P6,066.67
Separation pay in lieu of reinstatement P9,100.00
Moral damages P10,000.00
Exemplary damages P10,000.00

or a total of P44,966.67.

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Other reliefs just and equitable under the premises are also prayed for.
Respectfully submitted this 28th day of March 2014, Cebu City, Philippines.
VERIFICATION AND CERTIFICATION AGAINST NON-FORUM SHOPPING
We, Wenie Y. Sinajonon, Ramalou R. Bacat, and Joepit T. Campaner, all of legal age,
Filipinos, and with address at Sitio Kawayan, Banawa, Cebu City; Ompad St., Lapulapu
City; and Ibo Relocation Site, Lapulapu City, respectively, after having been sworn to in
accordance with law do hereby depose and state:
1. That we have caused the preparation of the foregoing Position Paper;
2. That we have read and understood all the contents and allegations contained herein and the
same are true and correct to the best of our knowledge and based on authentic records; and
3. That we have not heretofore commenced any action or petition or filed any claim
involving the same issues in the Supreme Court, the Court of Appeals, or different divisions
thereof, or any court, tribunal or quasi-judicial agency, and to the best of my knowledge, no
such other action, petition or claim is pending therein. If we should hereafter learn of such
similar action, petition or claim, we shall report that to this Honorable Office within five (5)
days from knowledge thereof.
IN WITNESS WHEREOF, we have hereunto affixed our signature this 28 th day of
March 2014 at the City of Cebu, Philippines.

WENIE Y. SINAJONON
Affiant

RAMALOU R. BACAT
Affiant

JOEPIT T. CAMPANER
Affiant
SUBSCRIBED AND SWORN to before me this 28 th of March 2014 at the City of
Cebu, Philippines, affiants Wewie Y. Sinajonon, Ramalou R. Bacat, and Joepit T. Campaner
exhibiting to me their ________, respectively.

Doc. No. ______;

Page No. ______;
Book No. _____;
Series of 2014.

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Copy furnished by personal service:

MARC AND MATTHEAU'S CATERING SERVICE
11 J. Fortich Street Banawa, Cebu City

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