Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. 1
San Fernando City, La Union

JEFRICK P. ROBLEDO,
Complainant,

- versus - NLRC CASE NO.

RAB-I-10-1188-19(SFLU)
NIRVANA DISCOTHEQUE,
Respondent.
x-------------------------x



POSITION PAPER
(of the COMPLAINANT)


COMPLAINANT, through the Public Attorney’s Office, to this

Honorable Commission, respectfully submits this Position Paper averring:

STATEMENT OF CASE

This is a complaint seeking justice for a dismissed employee who

valued his work and worked hard just to earn a living for himself and for
his family. Complainant filed this case before this Honorable Commission
last October 10, 2019 through the Single Entry Approach or SENA.
Conferences were set but the same failed, hence, the filing of a formal
complaint on October 24, 2019. Mandatory Conferences were scheduled
but respondent did not show up prompting this Honorable Commission to
issue an order for the submission of position paper, hence, this Position
Paper.

THE PARTIES
Complainant, JEFRICK P. ROBLEDO, is a former bouncer/waiter of
respondent. He is a Filipino, of legal age, single and presently residing at
Barangay Parian, San Fernando City, La Union, La Union, Philippines
where he may be serve with orders and other processes of this Honorable
Commission.

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 Respondent, on the other hand, is NIRVANA DISCOTHEQUE. It is
a business establishment engaged in operating disco houses with at least 23
employees. It is being managed by KAGEE TIU. He could be served with
orders and other processes of this Honorable Commission at the location of
the establishment at Pennsylvania Avenue, Barangay Madayegdeg, San
Fernando City, La Union, Philippines.

STATEMENT OF FACTS
Complainant JEFRICK P. ROBLEDO was employed by respondent
as bouncer/waiter sometime in May 2019. Complainant was promised by
respondent a compensation of Php500 per day for the agreed work. He
reported to work. The establishment or place of work is located at
Barangay Madayegdeg, San Fernando City, La Union. Since the nature of
the establishment is a disco house, it implies that its operation is opposite
the regular working hours. Complainant starts work at 7:00 in the evening
and ends at 5:00 o’clock in the morning the following day.

For the first month of complainant with respondent, he was not

allowed to have a rest day. This means that complainant works from
Monday to Sunday. More than that, he is also being called during periods
beyond the working schedule to perform work at the said disco house such
as cleaning and doing other chores for at least 3 hours. Instead of sleeping,
he is forced to cut down his sleep to cater to the demands of the employer.
He is forced to do it for fear that the employer might terminate him.
Attached herewith as Annexes “A” and “B” are affidavits of co-employees
at Nirvana Discotheque to support complainant’s statement.

Aside from no rest day for his first month, complainant stay with
respondent was fruitful as he was paid what he has been promised with
the exception of payment of those 3 hours beyond the agreed working
period. Though the first was good, the second and succeeding months
were not. He was only paid Php400.00 a day, a 100 peso differential from
what was agreed upon when the contract of employment was entered into.
He acceded to such payment as he was forced to by respondent. For fear of
termination, he acceded.

Last August 31, 2019, complainant texted respondent’s cashier,

Kristine Mae Chan Buyagan. He informed her that he cannot make it to
work as he was not feeling well. After getting rest, he entered work the
following day, but to complainant’s surprise he was greeted with a
termination letter from respondent. Copy of the said termination letter is
hereto attached as Annex “C” to form part of this position paper. He
wanted to talk to the manager but he was not allowed to and was banned

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from entering the establishment. Frustrated, complainant went home. For
several days, he was unable to sleep and suffered anxieties thinking how
he can survive the cost of daily living without work.

Through the advice of friends, complainant found his way to this

Honorable Office as he feels there was injustice done to him by respondent.
It was only through the filing of this complaint that the complainant knew
that there were several violations committed by respondent. After telling
his story to the officer of this Honorable Commission, it was noted that he
was illegally dismissed and was denied several employment benefits such
as Overtime Pay, 13th Month Pay, and Premium Pay for rest day and night
shift, SSS, Philhealth and PAG-IBIG. Hence, the filing of a complaint for
these noted infractions of the respondent. He even filed a complaint at SSS
for non-payment of respondent’s contribution/share. Copy of the said
complaint is hereto attached as Annex “D” to prove this statement.

ISSUES
1. WHETHER OR NOT COMPLAINANT WAS ILLEGALLY
DISMISSED;

2. WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO

THE NIGHT SHIFT DIFFERENTIAL, OVERTIME PAY AND
OTHER EMPLOYMENT BENEFITS;

3. WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO

PAYMENT OF DAMAGES; AND

4. WHETHER OR NOT THE COMPLAINANT IS ENTITLED TO

PAYMENT OF ATTORNEY’S FEES AND COST OF THE SUIT.

ARGUMENTS AND DISCUSSION

Complainant was illegally

dismissed

Employers are not forbidden from concluding the employment

contract of their employees. However, it should be emphasized that there
must be a legal basis for the cessation of the contract of employment and
that the same must be done in a lawful manner. In this case complainant
asserts that his dismissal is not warranted and was done capriciously.

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 The Labor Code provides for the legal basis of ending the contractual
relation between the employer and the employee. Specifically, Article 282
of the code otherwise known as “just causes” enumerates the instances
when an employer may terminate an employee in their employ 1. Articles
283 and 284 on the other hand present the authorized causes where the
employer may also terminate the employment of any employee.2 These
provisions of law are exclusive in such a manner that no other reasons may
permit the dismissal of an employee, hence, dismissals outside these
listings are considered illegal.

While the law provides for causes of dismissal of an employee, the

employer cannot whimsically get rid of its employees anytime he likes.
Employers may terminate the services of an employee for just or
authorized causes only after following the procedure laid down by law. In
so doing, due process should, at all times, be afforded to the employee.
Due process means the right of an employee to be notified of the reason for
his or her dismissal and, in case of just causes, to be provided the
opportunity to defend himself or herself.3 Thus, in a termination for a just
cause, due process involves the two-notice rule:

(a) First, the employer apprises the employee of the particular acts or
omissions for which his dismissal is sought; and
1
Article 282, Labor Code of the Philippines.
Art. 282. 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.

2
Articles 283 and 284, Labor Code of the Philippines.
Art. 283. Closure of establishment and reduction of personnel. The employer may also terminate the
employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to
prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is
for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the
Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of
termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be
entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for
every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or
cessation of operations of establishment or undertaking not due to serious business losses or financial
reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for
every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1)
whole year.

Art. 284. Disease as ground for termination. An employer may terminate the services of an employee who has
been found to be suffering from any disease and whose continued employment is prohibited by law or is
prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay
equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service,
whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.
3
Equitable PCI Bank (Now Banco De Oro Unibank, Inc.), vs. Castor A. Dompor, G.R. Nos. 163293 & 163297,
December 8, 2010.

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 (b) Second, employer informs the employee of the employer’s decision to
dismiss him.4

The requirement of a hearing is complied with as long as there was an

opportunity to be heard, and not necessarily that an actual hearing was
conducted.5 It provides that the employer shall furnish the worker, whose
employment is sought to be terminated, a written notice containing a
statement of the causes of termination, and shall afford the latter ample
opportunity to be heard and to defend himself in accordance with
company rules and regulations pursuant to the guidelines set by the
Department of Labor and Employment. This is the due process
requirements under the Labor Code and is obligatory on the part of the
employer.6 (Emphasis supplied)

In this case, the employer, respondent failed to follow the

requirement of the first notice. Complainant was dismissed effective
immediately the day after he failed to report for work. He informed his
employer that he cannot report for work because he was not feeling well
through a text message sent to their cashier, Kristine Mae Bayagan. After
resting, the following day, he was not allowed to enter the establishment
and was served with a notice of dismissal. The notice was given to him by
the cashier. He was not given the opportunity to explain his side. This is no
less than a denial of due process. Non-compliance therefore of respondent
with this requirement would inevitably mean that the employee was
illegally dismissed. Hence, complainant was illegally dismissed.

The normal consequences of a finding that an employee has been

illegally dismissed is that the employee becomes entitled to
reinstatement to his former position without loss of seniority rights and
payment of backwages corresponding to the period from his illegal
dismissal up to actual reinstatement.7 On the other hand, the doctrine of
strained relations provides that the payment of separation pay has been
considered an acceptable alternative to reinstatement when the latter
option is no longer desirable or viable. The grant of separation pay is a
proper substitute only for reinstatement; it cannot be an adequate
substitute for both reinstatement and backwages.8 These are two separate
and distinct remedies granted to the employee and the inappropriateness
or non-availability of one does not carry with it the inappropriateness or
non-availability of the other. (Emphasis supplied)

4
Pharmacia and Upjohn, Inc., et al. vs. Ricardo P. Albayda, Jr., G.R. No. 172724, August 23, 2010.
5
Ibid.
6
Robinsons Galleria/Robinsons Supermarket Corp. and/or Jess Manuel vs. Irene R. Ranchez, G.R. No. 177937,
January 19, 2011.
7
Century Canning Corporation, Ricardo T. Po, Jr., et al. vs. Vicente Randy R. Ramil, G.R. No. 171630, August 8, 2010.
8
Ibid.

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Complainant is entitled to Night
Shift Differential, Overtime Pay
and other Employment Benefits

It is undeniable that complainant is in the employ of respondent. As

such, complainant performed his task of being a bouncer/waiter and was
faithfully reporting for work. But it is not only the wage or compensation
that he is entitled to but also other employment benefits guaranteed by the
Labor Code to promote the well being of the employee.

The Labor Code of the Philippines defines wage as that paid to any
employee, however designated, capable of being expressed in terms of
money, whether fixed or ascertained on a time, task, piece, or commission
basis, or other method of calculating the same, which is payable by an
employer to an employee under a written or unwritten contract of
employment for work done or to be done, or for services rendered or to be
rendered and includes the fair and reasonable value, as determined by the
Secretary of Labor and Employment, of board, lodging, or other facilities
customarily furnished by the employer to the employee.9

Aside from wage, the Labor Code also provides for other
employment benefits to which an employee is entitled to. One is overtime
pay. The normal hours of work an employee has to render must not exceed
eight (8) hours a day and should be exclusive of the one (1) hour daily
lunch break.10 Any work performed beyond the normal 8 hours of work in
one workday is considered as overtime work. Such is compensable. It is
computed as by multiplying the overtime rate with the number of hours in
excess of the regular eight hours of work.11

Another is Night Shift Differential. Every employee is also entitled to

a night shift differential (NSD) or night shift pay of not less than ten
percent (10%) of his regular wage for each hour of work performed
between 10 p.m. and 6 a.m.12 If overtime work or work in excess of eight
(8) hours falls within the night shift period, premiums for overtime work
should first be integrated into the regular hourly rate of the employee
before computing night shift pay.

9
Art. 97, par. F, Labor Code of the Philippines.
10
Article 83, Labor Code of the Philippines.
11
Article 87, Labor Code of the Philippines.
Art. 87. Overtime work. Work may be performed beyond eight (8) hours a day provided that the
employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at
least twenty-five percent (25%) thereof. Work performed beyond eight hours on a holiday or rest day shall
be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day
plus at least thirty percent (30%) thereof.
12
Article 86, Labor Code of the Philippines.

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 Presidential Decree No. 851 mandates employers from the private
sector in the Philippines to pay their rank-and-file employees a Thirteenth
(13th) Month Pay. The 13th month pay is equivalent to one twelfth (1/12) of
an employee’s basic annual salary. This is a mandatory benefit. All rank-
and-file employees in the private sector who have worked for at least one
(1) month during the calendar year are entitled to receive 13 th month pay
regardless of their position, designation or employment status.

Lastly, the employers are also mandated by to pay an amount as their

share/contribution for the SSS, Philhealth and PAG-BIG of their
employees.

With all of these safeguards provided by law to protect the interest of

employees, respondent did not even think twice of violating the same.
Complainant suffered an underpayment in his wages when he was only
paid Php400 after his first month working with respondent. The agreement
for his wage was Php500 daily. Being a bouncer/waiter and considering
the nature of business of respondent, it is undeniable that complainant
rendered work beyond 10 p.m. It is also worthy to emphasize that the
regular hours of worked rendered by complainant is beyond the normal 8
hours work. As earlier asserted, he was called to work even beyond his 9
hours duty to render work for respondent such as cleaning the workplace
or premises of the establishment. Complainant was not able to take note of
his attendance to work as he does not maintain a copy of his daily time
record. He was only paid Php500 daily for his first month and Php400 for
the succeeding months thereafter. Complainant also asserts that he did not
receive any NSD pay for work rendered beyond 10 p.m. from the very start
of his employment until his termination. Respondent also failed to pay
their contribution to complainant’s SSS, Philhealth and PAG-IBIG. This is
the reason why complainant also filed a complaint before SSS for this
infraction of respondent. Attached hereto as Annex “B” is a copy of the
Affidavit-Complaint to prove the same. No 13th Month Pay was also given
to complainant. Since this mandatory for all employers, respondent should
be made to pay also the 13 th month pay of complainant for those months he
rendered service.

Complainant was never given any payslip by respondent; hence, he

does not have the evidence to prove this. Nevertheless, it is settled
jurisprudence that the burden of proving payment of monetary claims
rests on the employer.13 With all these breach, respondent should be made
to pay the aforementioned benefits they wilfully denied complainant.

13
G & M Philippines, Inc. v. Cruz, G.R. No. 140495, April 15, 2005.

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Complainant is entitled to
damages

Since the rights and obligations among and between the employer
and the employee are governed by the employment contract 14, the Civil
Code therefore comes into play. Article 2219 of the Civil Code provides for
recovery of moral damages in certain cases:

“Art. 2219. Moral damages may be recovered in the following and

analogous cases:

x x x.

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32,
34, and 35.

x x x.”

Article 21 of the Civil Code provides that “any person who willfully
causes loss or injury to another in manner that is contrary to morals,
good customs or public policy shall compensate the latter for the
damage.” (Emphasis supplied)

The non-payment of complainants’ salary as well as other

employment benefits had caused her LOSS OR INJURY. This loss involves
his proprietary right to LIVELIHOOD and DIGNITY. Being a mere lowly
worker, complainant depends only on his income. This deprivation can be
translated to an injury consisting of MENTAL ANGUISH, SLEEPLESS
NIGHTS, and EXTREME ANXIETIES. Complainant, after he was
terminated, suffered mentally torture, sleepless nights and extreme
anxieties. This even made him think of suicide because of said stress noting
that he performed well in his work. Such UNJUST ACT of respondent is
CONTRARY TO MORAL, GOOD CUSTOMS AND PUBLIC POLICY
that warrants the grant of moral damages.

Further, Article 2229 of the Civil Code provides for recovery of

exemplary damages:

“Art. 2229. Exemplary or corrective damages are imposed, by way of

example or correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages.”

Exemplary damages are designed by our civil law to permit the

courts to reshape behaviour that is socially deleterious in its consequence

14
EDI-StaffBuilders International, Inc. v. NLRC et al., G. R. No. 145587, October 26, 2007.

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by creating negative incentives or deterrents against such behaviour. 15 The
actions of respondent security agency against herein complainant is illegal
and morally unacceptable. Penalizing them to daunt them not to do the
same on others is just but fair and morally right. Exemplary damages are in
place for corrective measure. This is just but proper in this case. Otherwise,
these juridical entities and its officers, like the respondent, who think that
they are supreme in their corporate realms, can easily, at anytime, violate
the basic rights and dignity of their feeble workers.

Complainant is entitled to
attorney’s fees

Article 2208 of the Civil Code enumerates the instances when

attorney’s fees can be awarded:

“ART. 2208. In the absence of stipulation, attorney’s fees and expenses of

litigation, other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant’s act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest;
(3) Where the defendant acted in gross and evident bad faith in refusing
to satisfy the plaintiff’s plainly valid, just and demandable claim;

- xxx –

(9) In any other case where the court deems it just and equitable that
attorney’s fees and expenses of litigation should be recovered.”
(Emphasis supplied)

This complaint qualifies for the first, second, third and ninth reasons why
attorney’s fees should be awarded under the above quoted provision of the
Civil Code. Complainant's claim for attorney's fees is therefore justified.

Under the first instance, complainant is entitled to Attorney’s Fees

and the cost of the suit because complainant had justified his entitlement to
exemplary damages as articulated above. Secondly, it is settled that where
an employee was forced to litigate and incur expenses to protect his rights
and interest, as in this complaint, he is entitled to an award of attorney's
fees.16 In Rutaquio v. National Labor Relations Commission, the Supreme Court
held that in actions for recovery of wages or where an employee was forced
to litigate as in this case and, thus, incur expenses to protect his rights and
interest, the award of attorney’s fees is legally and morally justifiable. 17

15
Mecenas v. Court of Appeals, 259 Phil. 556, 574 (1989).
16
Building Case Corp. vs. NLRC, G.R. No. 94237, February 26, 1997.
17
Rutaquio v. NLRC, G.R. Nos. 97652-53. October 19, 1999.

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There is no other way for complainant to get what is due him except in this
complaint and was forced to do so under these circumstances.

In the dismissal as well as the underpayment of complainant’s

salaries and other benefits due him, respondent acted in gross and evident
bad faith considering that up to the present time, respondent continues to
ignore the valid claim of complainant. It is worth stressing that respondent
or his representatives did not even attend any of the scheduled mandatory
conferences. This would clearly show that respondent is manifestly in bad
faith. With this, the Honorable Commission should grant attorney’s fees
and cost litigation and such be chargeable to respondent in the interest of
justice and fair play.

PRAYER
WHEREFORE, in view of the foregoing, it is most respectfully prayed
of this Honorable Commission to render judgment in favor of the
complainant and against the respondent ordering the latter to:

a. pay all his salary and all money claims subject to the
computation of this Honorable Commission;

b. pay the legal interest on the monetary awards at the rate of 6%

per annum until fully paid;

c. pay moral and exemplary damages; and

d. pay Attorney’s fees and cost of this suit.

Other just and equitable reliefs under the premises are likewise
prayed for.

RESPECTFULLY SUBMITTED this November 25, 2019 at San

Fernando City, La Union, Philippines.

PUBLIC ATTORNEY’S OFFICE

San Fernando City (LU) District Office
Counsel for Complainant
Justice Hall, Sevilla
San Fernando City, La Union
by:

GILBERT R. HUFANA
Public Attorney II

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 Roll No. 61392; March 27, 2012; Manila
IBP Lifetime No. 018981; IBP La Union Chapter
MCLE Compliance No. VI-0005430; December 6, 2017

JEFFREY M. AGTARAP
Public Attorney III/OIC
Roll No. 55673; May 2, 2008; Manila
IBP No. 05327; January 30, 2019; IBP Baguio-Benguet Chapter
MCLE Compliance No. VI-0005429; December 6, 2017

Copy furnished:
(by registered mail due to distance and lack of personnel to effect personal service)

NIRVANA DISCOTHEQUE/ KAGEE TIU

Barangay Madayegdeg
San Fernando City, La Union

Republic of the Philippines)

Province of La Union ) S.S
City of San Fernando )

VERIFICATION AND CERTIFICATION

I, JEFRICK P. ROBLEDO, of legal, Filipino, married, with residence
at Parian, San Fernando City, La Union, Philippines, after having been duly
sworn to in accordance with law, do hereby depose and state that:

1. I am the Complainant in the above-captioned complaint;

2. I have caused the preparation of the foregoing Position Paper and I
have read the same and knows the contents thereof which were
supplied by me;
3. The allegations contained therein are true and correct and based on
authentic documents at hand;
4. I further certify that I have not commenced any action or proceeding
or filed any claim involving the same issues or matter in any court,

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 tribunal, or quasi-judicial agency and, to the best of my knowledge, no
such action or proceeding is pending therein; and
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 quasi-judicial agency, I undertake to report such
fact within five (5) days therefrom to the court or agency wherein the
original pleading and sworn certification contemplated herein have
been filed.

IN WITNESS WHEREOF, we have hereunto set my hand this

_________________ in San Fernando City, La Union, Philippines.

JEFRICK P. ROBLEDO
Affiant

SUBSCRIBED AND SWORN to before this _________________ at

San Fernando City, La Union, Philippines.

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