REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
Quezon City

LA NORBERTO D. ENRIQUEZ

LEONARDO OCAMPO REGALA,

Complainant,

-versus- NLRC NCR Case No. 01-01416-19

THE SHAWARMA SHACK / PATRICIA

COLLANTES / WALTHER BUENAVISTA.
Respondents.
x---------------------------------------------------x

POSITION PAPER

RESPONDENTS, through the undersigned counsel, unto this

Honorable Office, most respectfully avers that:

PREFATORY STATEMENT

1. This is a case for Constructive Dismissal, non-payment of overtime

pay, holiday pay, holiday premium, rest day premium, 13th month pay,
night shift differential and for moral and exemplary damages and
Attorney’s fees.

2. This is a refiled case set for mediation conference on February 13,

2019 at 10:00 in the morning.

3. Since no settlement was reached, the mandatory conference was

declared terminated and the parties were required to submit their
respective position papers. Hence, this position paper.

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 PARTIES

4. Complainant LEONARD OCAMPO REGALA is of legal age, Filipino

and residing at 0010 LT(G) P.F. Gonzales Street, Sta. Fe Homesite,
Deparo, Caloocan City, where he may be served with Order, Decision
and other processes of this Honorable Office.

5. Respondent SHAWARMA SHACK KIOSK CORPORATION

(“SHAWARMA SHACK”), is a corporation duly registered and
operating in accordance with the law of the Philippines and holding
office at 2/F MC Square Bldg, No. 735 Mindanao Avenue corner
Tandang Sora Avenue, Brgy. Tandang Sora, Quezon City, where it
may be served with Order, Decision and other processes of this
Honorable Office. It is represented by Dennis Kiel Macaraeg as
evidence by the Secretary’s Certificate herein attached as Annex
“1”.
6. Respondents WALTHER BUENAVISTA and PATRICIA
BUENAVISTA are the Officers of respondent Shawarma Shack.
They are both of legal age, Filipinos and holding office at the above-
given address of Shawarma Shack where they may be served with
Order, Decision and other processes of this Honorable Office.

STATEMENT OF FACTS

7. Complainant was hired by respondent Shawarma Shack on May 17,

2018 as Store Supervisor assigned at Ever Gotesco Commonwealth
with a basic wage of Php512.00.00 plus an allowance of Php188.00
or Php 700.00/ day. He is required to work for eignt (8) hours a day,
during mall hours, for six (6) days a week with a rotational day off.

8. As Store Supervisor, he is tasked to monitor the overall operation of

its stall at Ever Commonwealth most especially the monitoring of the
inventories sales of said stall, and see to it that his subordinates had
been faithfully complying with the store policies of Shawarma Shack.

9. On September 12, 2018, the management of Shawarma Shack

received a report from one of his subordinates that most of the store
personnel under him are not following the store policies and he

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 seems not to be aware of said incident despite the fact that it is his
duty to implement the same.

10. Hence, on even date, a notice to explain was served to him herein
attached as Annex “2”.

11. In compliance with the above-cited notice to explain, complainant

submitted on even date his written explanation herein attached as
Annex “3”.

12. In his written explanantion, he never denied the accusation against

him but promised to faithfully perform his duties and obligations as
Store Manager.

13. He was eventually given a chance to stay in his post and continued to
perform his duties and responsibilities as Store Supervisor of
Shawarma Shack. However, for reasons only known to him, he
tendered his resignation on October 11, 2018 effective immediately.
A copy of complainant’s handwritten Resignation Letter is herein
attached as Annex “4”.
14. By virtue of his immediate resignation, his exit clearance and
release form herein attached as Annex “5” was immedaitely
processed and he was given his last pay in the amount of
Php8,400.00 and his SSS, Philhealth and Pagibig Contribution in
the amount of Php1,132.91 as shown in the pay slip herein attached
as Annex “6”. The signature of complainant in his exit celarance
and release form and pay slip are sub-marked as Annex “5-A” and
“6-A”.

ISSUES

A. Whether or not complainant was illegally dismissed?

B. Whether or not complainant was entitled to his money claims, to wit:

a. Overtime pay

b. Holiday pay and holiday premium

c. Rest Day premium

d. 13th Month Pay

e. Night shift Differential Pay

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 f. Moral and Exemplary Damages; and

g. Attorney’s Fees

ARGUMENTS/DISCUSSIONS

Whether or not complainant

was illegally dismissed?

15. Complainant was not constructively dismissed.

16. As can be gleaned from the pieces of evidence attached to this

position paper, he tendered his resignation on October 11, 2018. He
was never forced to resign and it was upon his own volition that he
decided upon himself to sever his employment ties with Shawarma
Shack.
17. To further prove that there was no constructive dismissal, he even
received his last pay and his contribution for the mandatory benefits
since he will no longer be included in the list of employees of
respondents due to his resignation. But since respondents are in
good faith, despite his resignation and that fact that these mandatory
benefits are not yet due for payment, he was still given said
contribution for the mandatory benefits.
18. These pieces of evidence undoubtedly proved his voluntary
resignation and rule out any allegation of constructive dismissal.

Whether or not complainant was

entitled to his money claims

19. This issue should likewise be answered in the negative.

20. Complainant is not entitled to an overtime pay, holiday pay, holiday

premium, rest day premium and night shift differential.

21. He was not compelled to work beyond eight (8) hours as store
supervisors were only given an eight (8) hour rotational shifts.
Absent any showing that indeed he was compelled to work beyond 8
hours a day, he is not entitled to an overtime pay.

22. “However, the CA was correct in its finding that the petitioners failed
to provide sufficient factual basis for the award of overtime, and

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 premium pays for holidays and rest days. The burden of proving
entitlement to overtime pay and premium pay for holidays and
rest days rests on the employee because these are not incurred
in the normal course of business.”1

23. As regards his claim for night shift differential, it is evident that malls
usually closes at 10:00 in the evening, hence, it is respondents’ store
police to stop operation before 10:00 pm for the closing, conduct of
inventory and computation of sales for that day. With the said system
or procedure, employees of Shawarma Shack can leave their post at
exactly 10:00 in the evening. In fact that is the duty of complainant,
to see to it that all its subordinates have already finished their
respective tasks and closed the stall at exactly 10:00 in the evening.

24. Hence, it is absolutely preposterous why complainant was asking for

night shift differential pay when he was never compelled to work
beyond 10:00 pm.

25. Moreover, assuming without admitting that at some time he might be

constrained to work after 10:00 am considering his position as a
Store Supervisor or equivalent to a managerial position in
respondents’ stall in Ever Gotesco Commonwealth, such fact alone
made him not entitled to night shift differential.

26. As regards his claim for moral and exemplary damages, it is likewise
the stand of respondents htat he is not entitled thereto.

27. There was no bad faith on the part of respondents when they
accepted the resignation letter of complainant. To reiterate, he was
never compelled nor forced to resign. It is upon his own decision to
tender his handwritten resignation on October 11, 2018 which was
acted upon and was processed as shown in the exit clearance dated
october 15, 2018. Hence, respondents should not be held liable for
exemplary and moral damages.

28. Moral damages include physical suffering, mental anguish, fright,

serious anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be recovered if they are
the proximate result of the defendant's wrongful act for omission.
(Article 2217 of the Civil Code)
29. 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. The court may award
exemplary damages if the defendant acted in a wanton, fraudulent,

1 Wilgen Loon, et. al. vs. Power Master,Inc., et. al., G.R. No. 189404, December 11, 2013

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 reckless, oppressive, or malevolent manner. (Articles 2229 and 2232 of the
Civil Code)

30. However, as shown in the foregoing discussions, respondents’ act of

accepting complainant’s resignation is far from being sinister,
malicious or improper that it may result to complainant’s physical
suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and
similar injuries.

31. The Court held that:

“The legislative intent appears clear to allow recovery in

proceedings before Labor Arbiters of moral and other forms
of damages, in all cases or matters arising from employer-
employee relations. This would no doubt include,
particularly, instances where an employee has been
unlawfully dismissed. In such a case the Labor Arbiter has
jurisdiction to award to the dismissed employee not only the
reliefs specifically provided by labor laws, but also moral and
the forms of damages governed by the Civil Code. Moral
damages would be recoverable, for example, where the
dismissal of the employee was not only effected without
authorized cause and/or due process — for which relief is
granted by the Labor Code — but was attended by bad faith
or fraud, or constituted an act oppressive to labor, or was
done in a manner contrary to morals, good customs or public
policy-for which the obtainable relief is determined by 'the
Civil Code (not the Labor Code).”2

32. Respondents should likewise not be held liable for attorney’s fees for
the reasons above stated following the ruling of the Highest Court in
the case case of Exodus International Construction Corporation,
et. al. vs. Guillermo Biscocho, et. al.3.

“In Producers Bank of the Philippines v. Court of Appeals this

Court ruled that:

Attorneys fees may be awarded when a party is compelled to

litigate or to incur expenses to protect his interest by reason of an
unjustified act of the other party.”

33. Furthermore, there is no reason to litigate as he voluntarily tendered

his resignation and he was paid all his due. His claim for holiday pay,

2 Suario vs. BPI, G.R. No. L-50459, August 25, 2989.

3 G.R. No. 166109, February 23, 2011

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 rest day pay, overtime pay and night shift differential has no basis,
hence, cannot be utilized as an excuse to claim attorney’s fees.

34. Lastly respondents Walther and Patricia Buenavista should likewise

not be held personally liable for complainant’s monetary claims.
35. Basic is the rule in corporation law that a corporation is a juridical entity
which is vested with a legal personality separate and distinct from those
acting for and in its behalf and, in general, from the people comprising it.
Following this principle, obligations incurred by the corporation, acting
through its directors, officers and employees, are its sole liabilities. A
director, officer or employee of a corporation is generally not held
personally liable for obligations incurred by the corporation.4

36. “Withal, the law, in protecting the rights of the laborers, authorizes
neither oppression nor self-destruction of the employer. While the
Constitution is committed to the policy of social justice and the
protection of the working class, it should not be supposed that every
labor dispute will be automatically decided in favor of labor. The
management also has its own rights, as such, are entitled to respect
and enforcement in the interest of simple fair play. Out of its concern
for those with less privileges in life, the Supreme Court has inclined
more often than not toward the worker and upheld his cause in his
conflicts with the employer. Such favoritism, however, has not blinded
the Court to the rule that justice is in every case for the deserving,
to be dispensed in the light of the established facts and
applicable law and doctrine.”5

PRAYER

Wherefore, premises considered, it is most respectfully prayed that

this Honorable Office rendered a Deceision DISMISSING this complaint for
utter lack of merit.

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

January 11, 2019, Quezon City.

4 Heirs of Tan Uy vs. International Exchange Bank, G.R. No. 166282, February 13, 2013.
5 Solidbank Corporation vs. NLRC, et al., G.R. No. 165951, March 30, 2010.

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 ROSARIO S. NICANOR
Counsel for the Respondents
Unit 307, DM Building, Visayas Avenue corner
Congressional Avenue, Bahay Toro, Quezon City.

Roll No. 49125

IBP No. 64056/ 01-07-19 / Q.C.
PTR No. 7376305 / 01-07-19 / Q.C.
MCLE COMPLIANCE V No. 0014996/3-04-16
Tel. No. 9869112/Cell. No. 09282235734

Copy Furnished:

LEONARD OCAMPO REGALA

0010 LT(G) P.F. Gonzales Street
Sta. Fe Homesite, Deparo
Caloocan City.

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