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Memorandum of Appeal NLRC Claribel Tabudlong V Peak Manpower
Memorandum of Appeal NLRC Claribel Tabudlong V Peak Manpower
Memorandum of Appeal NLRC Claribel Tabudlong V Peak Manpower
MEMORANDUM OF APPEAL
STATEMENT OF FACTS
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8. Often times, Kadow and his wife would maltreat Complainant by
slapping or pinching her whenever she would commit a simple mistake or for
trivial matters such as when household supplies run out. She was only allowed
to eat twice everyday. Contrary to her employment contract, Complainant was
not given any rest day or vacation leave, even during times that she was sick. In
fact, she was mostly kept under lock and key and was not allowed to freely leave
the house or communicate with the Philippine Embassy or her relatives. She can
only communicate through messages relayed to Filipino neighbors and a
cellphone which she secretly kept.
9. Complainant was only paid Eight Hundred Riyals (SR 800.00) per month
instead of SR 1,500.00, contrary to the provisions of her Employment Contract for
the whole 24 months of her employment.
12. Feeling helpless, Complainant lost hope in coming back to the Philippines
anytime soon. To survive, she bore the burden of her work and bad treatment
she was receiving from her employers, as well as the lack of benefits and salary.
She waited until the expiration of her contract, or two long years. Because of the
maltreatment she received from her employer’s, Complianant suffered
1
“Annex F and F-1” of Complainant’s Position Paper.
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physically, mental anguish and fright, numerous sleepless nights, anxiety and
wounded feelings. She was alone and helpless in a foreign land and away from
any assistance from our country. She had to bear her situation for the two-year
duration of her contract.
I. The Honorable Labor Arbiter gravely erred when he dismissed the complaint
because she “failed to present any proof of the alleged underpayment, such as her
payslips.”
15. It is most respectfully submitted that the Honorable Labor Arbiter erred in
dismissing the complaint because of failure of complainant to submit payslips or
proofs of underpayment. No payslip was ever issued by Respondent Kadow and
it would be impossible for Complainant to produce said document because it
was never issued in the first place. Complainant should not be faulted for her
employer’s failure to issue payslips. Otherwise, we would be left in a situation
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where foreign employers would be absolved from paying the just salaries of our
workers simply by not issuing payslips.
16. On the other hand, it is settled jurisprudence that it is incumbent upon the
employer to prove payment of just compensation and benefits because, as most
often than not, employers have the control and custody of all the documents
pertaining to their worker’s employment.
17. In the case of Saberola v. Suarez, et al.2, the Supreme Court held that it is
incumbent upon the employer to prove payment of his employee’s salary and
benefits. In said decision, the Court ruled that:
“As employer, the petitioner has the burden of proving that the
rate of pay given to the respondents is in accordance with the
minimum fixed by the law and that he paid thirteenth month pay,
service incentive leave pay and other monetary claims.
2
G.R. No. 151227, July 14, 2008.
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II. The Honorable Labor Arbiter gravely erred when it dismissed the complaint
because allegedly Complainant did not raise any complaint during her employ
in Saudi Arabia.
19. Complainant could not file a complaint against her employer personally
because she was locked inside Respondent Kadow’s house. She was not allowed
to leave the house by herself, much less file a complaint with the proper agency
in Saudi Arabia. She was only able to communicate with her husband through
text messages by using a cellphone she secretly kept. The Honorable Labor
Arbiter gravely erred when it did not consider the complaints made by
Complainant through e-mail3 with the help of her husband on the ground solely
that there was no proof that it was not received by its addressee. It is proof that
Complainant asked for help and complained of her inhumane working
conditions during her employment with Respondent Kadow. At that time, it was
the only way she could communicate her grievances to the agencies of the
government.
20. The e-mails sent through her husband are proof that she asked for help
with different government offices because of underpayment and inhumane
conditions. Complainant’s failure to file a proper complaint while in Saudi
Arabia was not of her own fault but because she simply could not, given the
harsh situation that she was bearing at that time.
III.The Honorable Labor Arbiter gravely erred when it applied the case of
JONES INTERNATIONAL MANPOWER SERVICES, INC. vs. AGCAOILI-
BARIT4.
21. The Jones Manpower case, cited above, is not on all fours with the instant
case. It has no application with Complainant and Respondents’ case. In the Jones
Manpower case, the Supreme Court reversed the Court of Appeal’s decision and
effectively dismissed the complaint of Barit because of certain facts, which are
not attendant in this case.
22. In the Jones Manpower case, Barit was not locked in the house. Barit had
all the opportunity to file a complaint against her employer for her unpaid salary
3
See “Annex F and F-1” of Complainant’s Position Paper.
4
July 20, 2011, G.R. No. 181919.
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but she did not and she even continued working for her employer for a
considerable time despite underpayment. This is not so in Complainant
Tabudlong’s case. She could not file a complaint even if she wanted to because
her foreign employers prevented it by locking her up. Tabudlong could not leave
her employers because they confiscated her passport and travel documents. She
could not just leave her employer without her travel documents because she will
be arrested for running away. She had no choice but to finish her contract given
the intimidation and prevention made by her foreign employers.
23. Barit left to stay with her boyfriend in Saudi Arabia. It was not so in
Tabudlong’s case as she had nowhere to go except stay with her foreign
employer and finish her contract.
24. Barit extended her contract with her foreign employer for ten more
months despite allegations of underpayment. In the case at bar, Tabudlong no
longer extended her contract because of her underpayment. She immediately
returned to the Philippines where she filed the instant case.
25. In the Jones Manpower case, the agency and the foreign employer
disputed Barit’s claim for underpayment. Letters were submitted to prove full
payment of Barit’s salaries. It is different from the instant case where Respondent
Peak Manpower did not raise full payment of salaries as their defense. In fact,
Respondents’ documents deny that they know Respondent Kadow. No
document was presented to prove full payment. Not even a letter explanation
from the foreign principal.
26. With the above discussion and with due respect, it is clear that the
Honorable Labor Arbiter’s application of the Jones Manpower case is misplaced.
The attending facts and circumstances which prompted the Supreme Court to
dismiss the complaint of Barit is not present in the case of Complainant
Tabudlong. Hence, the doctrines and jurisprudence of said case cannot be
applied to the case of Tabudlong.
PRAYER
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WHEREFORE, based on the foregoing, COMPLAINANT respectfully
pray that the DECISION dated 1 October 2013 be REVERSED and SET ASIDE.
Complainant further prays that a new Decision/Resolution be rendered in favor
of Complainant and ordering payment of her money claims and for damages.
Such other relief as may be deemed just and equitable under the premises
is likewise prayed for.
Respectfully submitted.
By:
VERIFICATION / CERTIFICATION
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4. Should I thereafter learn that the same or similar action or claim has
been filed or is pending, I would report such fact within five (5) days
therefrom.
EXPLANATION