Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

_______________________,
Complainant,

-versus- NLRC Case No. 12-1499-07

_______________________,
Respondents.

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REPLY
(TO THE RESPONDENTS MUDT and MR. SY POSITION PAPER with
OPPOSITION TO THE MOTION TO DISMISS )

COMPLAINANT, by herself, unto this Honorable Office most

respectfully submit his Reply containing the following:

1. Complainant hereby replead his allegations and averments in

his Position Paper dated April 29, 2008;

2. Respondent averred that they did not terminate complainant’s

employment but rather only ask from co-respondent RBC KO
Manpower Services her replacement.

We disagree.

We reiterate that on February 17, 2007 at around 2:00 in

the morning, complainant was diligently performing her job
as waitress, she politely asked the two customers of the
Respondent KTV who were occupying that time a table good
for eight persons, believing that is for the interest and
convenience of the customers and her employer, to share or
divide the table so that the other customers could use also
the table. That humble gesture of herein complainant got the
 ire of the said customers. The two customers reported her
acts to her manager, Mr. Joe Salvador, who reported the
same to the Over-all head of KTV, Mr. Rene Gutierrez. At
around 4:00 am of the same day, while herein complainant
was about to go home, she got the shock of her life when told
that she need not report for the next working day by the KTVs
floor manager without stating any reason why they are
terminating her employment.

Very clear, therefore, is the fact that herein complainant was

terminated by MUDT and Mr. Sy. It was the Over-all Head of the MUDT
who ordered herein complainant not to report for work anymore.
Complainant was unduly deprived of her employment without just and
authorized cause. Furthermore, the two- notice requirement which is
guaranteed under the Constitution was also violated by herein
respondents. The implementing rules ( in Book V, Rule XXIII, Sec. 2
and, again, in Book VI, Rule I, Sec. 2 ) provide that no worker shall be
dismissed except for a just or authorized cause provided by law and
after due process.

In this regard, the supreme Court in one case aptly stated that :

“ The two facets of this legal provision are : a.) the legality
of the act of dismissal; that is, dismissal under the grounds
provided for under Article 282 of the Labor Code and b.) the
legality in manner of dismissal .1”

Verily, the aforesaid requirements laid down by the highest court of

the land was utterly disregarded by herein respondents.

3. Respondents averred that there exist no employer and

employee relationship between herein respondents (MUDT
and MR. SY) and herein complainant.

We disagree.

1
Shoemart, Inc. vs. NLRC, G.R. No. 74225, August 11, 1989.
 Worthy to note is the case stressed by herein respondents in the page
five ( 5) of their position paper and we hereby quote:

“Time and again, the Court has applied the “four-fold”

test in determining the existence of employer-employee
relationship. This test considers the following elements :
1.) the power to hire 2.) the payment of wages 3.) the
power to dismiss 4.) the power to control, the last
being the most important element2.” ( emphasis
supplied)

Herein complainant respectfully submits that employer – employee

relationship exist due to compelling power of control herein
respondents possessed over the complainant. In fact, complainant
was terminated by respondents MUDT and MR. SY.

Furthermore, the Supreme Court in one case stressed that :

“ Employer – employee relationship is determined by

law , and not by contract between parties .3”

Therefore, considering that herein complainant worked with the

respondents for a period of more than six months which are necessary
and desirable in the respondents business, she is deemed to be a
regular employee of herein respondents, thus, entitled to security of
tenure and other benefits of a regular employee.

4. The position paper of the Respondents is bereft of any merit

to exonerate them of liability for unjustly and oppressively
terminating complainant’s employment. Fact remains that
Respondents illegally dismissed herein complainant and
deprived him of just and lawful remuneration;

5. Given the above-enumerated circumstances, since

complainant was illegally dismissed, she is therefore entitled
to the money claims sought. To reiterate the protection given
to the labor force, the Supreme Court held in two cases the
following ruling:

2
AFP Mutual Benefit Association, Inc. vs. NLRC et al., G.R. No. 1022199, Jan. 28, 1997.
3
Paguio vs. NLRC, May 9, 2003.
 “Whatever doubts, uncertainties or
ambiguities remain in this case should
ultimately be resolved in favor of the worker
in line with the social justice policy of our
labor laws and the Constitution. The
consistent rule is that the employer must
affirmatively show rationally adequate
evidence that the dismissal was for a
justifiable cause, failing in which makes the
termination illegal” (Hantex Trading Co.,
Inc. and/or Chua vs. Court of Appeals G.R.
No. 148241 September 27, 2002).

“In carrying out and interpreting the Labor

Code’s provisions and its implementing
regulations, the employee’s welfare should
be the primordial and paramount
consideration. This kind of interpretation
gives meaning and substance to the liberal
and compassionate spirit of the law as
provided in Article 4 of the Labor Code which
states that “[a]ll doubts in the
implementation and interpretation of the
provisions of [the Labor] Code including its
implementing rules and regulations, shall be
resolved in favor of labor”, and Article 1702
of the Civil Code which provides that “[I]n
case of doubt, all labor legislation and all
labor contracts shall be construed in favor of
the safety and decent living for the laborer”.
(Reyes vs. Court of Appeals, et. al. G.R. No,
154448, August 15, 2003)

PRAYER

WHEREFORE, it is most respectfully prayed unto this

Honorable Office that the judgment be rendered:

1. Ordering the Respondents to compensate the complainant the required

separation pay due to the illegal dismissal committed;

2. Ordering the Respondents to pay the Complainant backwages from the

time of his illegal dismissal up to the time of his supposed actual
reinstatement;
3. Ordering the Respondents to pay the Complainant of her unclaimed
13th month pay and other benefits mentioned above ;

4. Ordering the Respondents to pay the Complainant damages in the

amount of P 30,000.00 by way of moral damages and P 30,000.00 by
way of exemplary damages.

Other reliefs just and equitable under the premises are

likewise prayed for.

City of Manila, Philippines.

____________________
Complainant