Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VIII
Trece Martires St., Tacloban City

ALEX CANITES, JR. .

Complainant

- versus - NLRC Case No. VIII-06-0209-18

JJ MEGA HOLDING CORP. and/or

MR. JACKSON FAN, Owner/
AVA SHARON KHO, Gen. Mgr..
Respondent/s

x---------------------------x

POSITION PAPER
(For the Respondents)

Respondents, through the undersigned Counsel, most respectfully

submit and present this Position Paper in the above-entitled case and aver
that:

I. STATEMENT OF FACTS
Respondent JJ MEGAHOLDING CORP. is a business
entity with its principal place of business at Brgy. 74, Lower
Nula-Tula, Tacloban City. It is engaged in the sale of
construction aggregates such as sand and gravel with Ms. Ava
Sharon Kho as its Human Resource Officer.

Because of the nature of its business, respondent

corporation owns 12 units of trucks used in the hauling and
delivery of the construction aggregates.
 These trucks used in the business needs maintenance
and repairs arising from its daily operations, hence, there was
a need to contract out a service provider to do these repairs.

Respondent Corporation then procured the services of

Francisco Isaac also known as “Koko” sometime in December
2014 up to the present. Koko is an independent job contractor
as he possesses special skills and expertise in repairing any
kind of damage to the engines of the trucks as well as to the
other parts of the trucks. Furthermore, respondent corporation
does not control the means and methods by which he performs
his job.

Koko then hired herein complainant Alex Canites, Jr. to

do the electrical works on the trucks. Complainant was paid on
a daily basis by Koko at the rate of Php450.00 per day.
Complainant was also allowed by Koko to be absent on other
days as he was also accepting electrical jobs from other
clients.(Affidavit of Francisco “Koko” Isaac is hereto attached
and marked as Annex “A”). Complainant’s name never
appeared on any of the biometric records(Copies are hereto
attached and marked as Annex “B-1 to B-3”) nor the
respondent corporation’s payrolls(Copies are hereto attached
and marked as Annex “C-1 to “C-____).

On April 30, 2018, AVR(automatic voltage regulator)

units which were procured by respondent corporation arrived
in its principal place of business. Since these units are quite
heavy and big in size, it would need a number of men to unload
the same for it might be damaged if these would fall.

The employees then helped unload the AVR units from

the delivery truck except for complainant Alex Canites, Jr.. The
employees called for complainant to help them but he did not
heed to their request.

Respondent Ava Sharon Kho went out of her office to

supervise the unloading of the AVR units. When complainant
saw her, he made his voice even louder that he is not willing to
help them.
 Ava Sharon Kho then called for a meeting with all the
employees. She then told complainant Alex Canites, Jr. that he
should not say those words, as each one should help each
other in the workplace. Instead of taking the advice of
respondent Kho, Alex shouted that he should not be obliged
to help as he is an electrician and is not an employee of JJ
Mega Holding Corp. Ms. Kho further told him that he should
help even if he was not an employee because even the
operations manager helped in unloading the AVR units.

Complainant then told respondent Ava Kho that she has

no authority to tell him those things then went home outright.

Alex Canites, Jr. then filed a Complaint for illegal

dismissal before the NLRC Regional Arbitration Branch No.
VIII on June 5, 2018 and prayed that he be payed by
respondent corporation his Service Incentive Leave(SILP),
Separation pay, and other benefits due him.

A mandatory conciliation and mediation conference was

conducted by the Labor Arbiter on June 19, 2018 between the
parties but failed to settle amicably.

II. ISSUE

1.) WHETHER OR NOT THERE EXISTS AN

EMPLOYER-EMPLOYEE RELATIONSHIP
BETWEEN COMPLAINANT AND
RESPONDENTS;
2.) WHETHER OR NOT COMPLAINANT IS
ENTITLED TO SILP, SEPARATION PAY
AND OTHER BENEFITS

III. ARGUMENTS

.
1. There exists no employer-employee relationship between
the complainant and respondents.
2. Complainant is not entitled to SILP, Separation Pay, and
other benefits.
IV. DISCUSSIONS

NO EMPLOYER-EMPLOYEE RELATIONSHIP EXISTS

It is well-settled that the factors to determine the existence of

an employer-employee relationship are the following:

1. Selection and engagement of the employee;

2. Payment of wages;
3. Power of dismissal;and
4. Power of Control.

Under the first determining factor, which is the selection and

engagement of employee, it was not JJ Mega Holding who hired the
complainant, it was Francisco “Koko” Isaac, an independent
contractor who hired him. It was the latter who evaluated his skills
and engaged his services to do the electrical jobs on the vehicles.

On the second determining factor, which is the payment of

wages, it is not JJ Mega Holding Corp. who pays the wages of herein
complainant. It is Francisco “Koko” Isaac who is paying complainant
Php450.00 per day.

On the third determining factor, which is the power of dismissal,

respondent corporation has no power to dismiss herein complainant.
Had the respondent corporation possessed such power, they should
have dismissed complainant long before when the latter incurred
absences, when he would work on the vehicles of his other
customers. This is tantamount to gross and habitual neglect of duty,
a just cause for dismissal under Art. 288, par.(b) of the Labor Code .
In fact, it is complainant himself who voluntarily left the premises after
the exchange of words between him and respondent Kho occurred.
 On the fourth determining factor which is the control test, the
most important test. There is an employer-employee relationship
when the person for whom the services are performed reserves the
right to control not only the end but also the manner and means used
to achieve that end(Television and Production Exponents Inc. vs
Servana 542 SCRA 578). In this case, respondent corporation has
no control over the the manner and means to achieve that end as
respondent corporation does not give instructions to complainant on
how he will conduct the wiring or the repairing of the electrical
connections of the trucks as he is also under the direct supervision
of the independent contractor who hired him.

Also applying the economic dependence test, the proper

standard is whether the worker is dependent on the alleged employer
for his continued employment in that line of business. It is clear that
complainant is not dependent on respondent corporation for his
continued employment. The absences he would incur which was with
the consent of Francisco Isaac just to work on the electrical jobs of
other clients’ vehicles is sufficient proof that he can earn a living even
without the respondent corporation.

With the four elements of employer-employee relationship

wanting, it is crystal clear that complainant is not an employee of
respondent corporation.

Complainant is an employee of the independent contractor and

not of the corporation.

COMPLAINANT NOT ENTITLED TO SERVICE INCENTIVE

LEAVE PAY(SILP)

Service Incentive Leave is a 5-days leave with pay for every

“employee” who has rendered at least 1 year of service. There exists
no employer-employee relationship between complainant and
respondents, hence, complainant cannot be entitled to SILP.

COMPLAINANT NOT ENTITLED TO SEPARATION PAY

Separation pay refers to the amount due to the employee who

has been terminated from service for causes authorized by law such
as the installation of labor-saving losses or the closing or cessation
of operation of the establishment or undertaking.
 Separation pay is intended to provide the employee with the
werewithal during the period he is looking for another
employment.(Gabuay vs. Oversea Paper Supply, G.R. No. 148837)

Separation pay cannot be given to herein complainant as he

was not terminated from service from an authorized cause under the
Labor Code. Furthermore, he cannot be looking for another
employment as he already accepts electrical jobs from other clients
even from the time that he was still working on the trucks of
respondent corporation.

In conclusion, Alex Canites, Jr. is not an employee of JJ Mega

Holding Corp., hence, the severance of work by herein complainant
from respondents did not constitute illegal dismissal and he is not
entitled to any benefits from respondent corporation.
PRAYER

WHEREFORE, foregoing premises considered, it is most humbly and

respectfully prayed unto the Honorable Labor Arbiter:

(1) Declaring Alex Canites, Jr. not an employee of JJ Mega Holding

Corp. ;

(2) Ordering the complaint for illegal dismissal against respondents

dismissed;

(3) Declaring Alex Canites, Jr. not entitled to SILP, Separation Pay
and other benefits;

(4) Such other reliefs just and equitable under the premises are
likewise prayed for.

June 27, 2018, Tacloban City.

ATTY. CHRISTOPHER RYAN P. ROSAL

Counsel for the Respondents
Roll No. 67012
IBP No. 024315, 1/5/2018, LEYTE
PTR No. 7700343, 1/3/2018, TAC. CITY
Kings Bldg., Paterno St., Tacloban City
Copy Furnished:
Alex Canites, Jr.
Brgy. 106, Sto. Nino. Kapuso Village, Tacloban City
Registry Receipt No._________________________

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, AVA SHARON KHO, Filipino, of legal age, married, and with

residential address at Brgy. 74, Maharlika Highway, Lower Nulatula,
Tacloban City, after having been duly sworn to in accordance with law, do
hereby depose and state that:

1. That I am the respondent of the above-entitled case;

2. That I have caused the preparation and filing of the foregoing
Position Paper;
3. That I have understood the allegations contained therein and
the same are true and correct of my own personal knowledge
and based on authentic records on file with this office;
4. That I have not 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 to the best of my
knowledge no such other action is pending therein;
5. If I should thereafter learn that a similar action or proceeding
has been filed or is pending before the Supreme Court, the
Court of Appeals, or any other tribunal or agency, I hereby
undertake to report such fact within five (5) days therefrom to
this Honorable Office.

IN WITNESS WHEREOF, I have hereunto set my hands this 27th day

of June 2018 in Tacloban City.

AVA SHARON KHO

Affiant

SUBSCRIBED AND SWORN to before me this 27th day of June 2018,

in Tacloban City, affiant exhibited her identification card with ID
No.______________________________