Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Quezon City

ALJHON A. BERMILLO
Complainant,

- versus - NLRC-NCR CASE NO.

_____________

HSIRI HOTEL APARTELLE

Respondent.
x--------------------------------------------------x

POSITION PAPER
RESPONDENT, unto this Honorable Commission, respectfully
submit the above-entitled pleading as follows:

PREFATORY STATEMENT

The instant complaint raises anew the application of the Four-Fold

test in determining whether or not there exist an employer-employee
relationship that will trigger the application of the Labor Standards
provision of the Labor Code of the Philippines, as amended.

PARTIES

1. The complainant, ALJHON A. BERMILLO, is a Filipino and a

resident of _______________________1 where he may be served
with notices and other processes to be issued by the Honorable
Commission;

2. Respondent is a domestic corporation engaged in the business of

operating a hotel located at ___________, Caloocan City and its
authorized representative is Mr. ___________________;

1
The address of Aljhon A. Bermillo was not disclosed to the respondent nor mentioned during the
proceedings before the SeNA and Labor Arbiter

1
 STATEMENT OF THE CASE AND PERTINENT FACTS

A. The Case

Complainant requested the assistance of Ms. Marife S. Nuera, SeNA

Conciliator-Mediator raising the following causes of action:

a. underpayment of wages;
b. non-payment of overtime;
c. non-payment of nightshift differential;
d. non-payment of holiday pay; and
e. non-payment of COLA.

That after the termination of the conciliation-mediation proceedings before

the SeNa Officer, the case was referred to the office of Honorable Labor
Arbiter Celso Virgilio C. Ylagan IV. After the presentation of their
respective contentions before the Honorable Labor Arbiter, the parties failed
to reach a fair settlement. Hence, this Position Paper.

ARGUMENTS/DISCUSSIONS

I. WHETHER OR NOT
THERE IS EMPLOYER-
EMPLOYEE RELATIONSHIP
BETWEEN THE
COMPLAINANT AND THE
RESPONDENT.

Respondent respectfully submits that there is no employer-employee

relationship between them, the reasons are as follows:

In our jurisdiction, to be entitled to payment of wages, overtime, night shift

differential, holiday pay and COLA, one must be considered as an
employee. There must exist employer-employee relationship to be entitled to
said claims. Unfortunately, no such relationship exists in the case at bar.

2
In the case of ATOK BIG WEDGE COMPANY, INC., Petitioner, vs.
JESUS P. GISON, Respondent, G.R. No. 169510, August 8, 2011, the
Supreme Court ruled that:

“To ascertain the existence of an employer-employee relationship

jurisprudence has invariably adhered to the four-fold test, to wit: (1) the
selection and engagement of the employee; (2) the payment of wages; (3)
the power of dismissal; and (4) the power to control the employee's conduct,
or the so-called "control test."2 Of these four, the last one is the most
important.3 The so-called "control test" is commonly regarded as the most
crucial and determinative indicator of the presence or absence of an
employer-employee relationship. Under the control test, an employer-
employee relationship exists where the person for whom the services are
performed reserves the right to control not only the end achieved, but also
the manner and means to be used in reaching that end.”

The Four-Fold Test:

(1) The selection and engagement of the employee

In the case at bar, the respondent did not select nor engage the
services of the complainant. As a matter of fact, sometime on 2022, the
complainant, without any invitation from the respondent, voluntarily
approached Ms. Carmelita Ferrater, hotel supervisor of the respondent and
asked the latter if it is okay to work in the hotel of the respondent. Ms.
Ferrater replied that they cannot afford to hire nor employ him in whatever
capacity since the present state of finances of the respondent is not capable
of acquiring additional or new employee, not to mention the decrease in
revenue from both walk-in guests and online booking reservations.

2
Philippine Global Communication, Inc. v. De Vera, G.R. No. 157214, June 7, 2005, 459 SCRA 260, 268.
3
Ushio Marketing v. NLRC, G.R. No. 124551, 28 August 1998, 294 SCRA 673; Insular Life Assurance
Co., Ltd. v. NLRC, G.R. No. 119930, March 12, 1998, 287 SCRA 476.

3
Complainant pleaded to the Ms. Ferrater and requested that he be
temporarily allowed to work in the hotel in any other capacity since
according to the complainant, his work will be temporary because he will be
leaving in Japan to work. Still, Ms. Ferrater refused to accept to the request
of the complainant. Complainant, despite such explanation from Ms.
Ferrater continued to stay within the premises of the hotel of the respondent.
As a matter of fact, complainant put-up and manage a mini sari-sari store in
front of the hotel of the respondent and even stayed in the hotel in which the
complainant considered it as his temporary residence which the latter
allowed for humanitarian reasons. Clearly, respondent did not hire nor
engaged the services of the complainant.

(2) the payment of wages

As mentioned above, complainant simply stayed within the premises

of the hotel of the respondent and is managing his sari-sari store. No work
whatsoever was assigned to the complainant that justifies the payment of
wages. Under Article 97, paragraph (f) of the Labor Code, the term “wage”
means:

(f) "Wage" paid to any employee shall mean the

remuneration or earnings, 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. "Fair and reasonable value" shall not include any

4
 profit to the employer, or to any person affiliated with the
employer. (Emphasis supplied)
In the case at bar, no work was performed or to be performed by the
complainant and there is also no service rendered or to be rendered that
will justify the payment of wages. Whatever he does within the premises
of the hotel was done through his own volition and is not under the
instructions of the respondent. Therefore, the respondent does not have
any legal obligation to pay the complainant his wages. As a matter of
equity and for humanitarian reasons, respondent simply gave him financial
assistance as his stay in the hotel premises while maintaining his sari-sari
store somehow contributed to the security aspect of the hotel premises but
again, such actions was done by him in his own will and is not by virtue of
any contract, agreement, instructions or orders from the respondent.

(3) the power of dismissal

Having said that complainant is merely maintaining his sari-

sari store and staying in the premises of the hotel, respondent
therefore has no power to dismiss him. Complainant was not
compelled to stay thereat and his actions are not subject to the rules
and regulations of the respondent. Otherwise stated, complainant’s
case is similar to a by-stander in the hotel premises. Therefore, he
cannot be subject to the power of dismissal of the respondent.

(4) the power to control / the so-called "control test”

Under the control test, an employer-employee relationship exists

where the person for whom the services are performed reserves the
right to control not only the end achieved, but also the manner and
means to be used in reaching that end4. (Underscoring supplied)

4
Abante, Jr. v. Lamadrid Bearing & Parts Corp., G.R. No. 159890, May 28, 2004, 430 SCRA 368, 378.

5
No such kind of control is present in the case at bar. The complainant
is at liberty to do things that he wants while staying in the premises of
the hotel. He is not subject to any regulations, instructions or
guidelines as to how the work is to be done simply because he is not
an employee of the respondent. Thus, it is absurd for the respondent to
impose upon the complainant the manner and means to be used by
him in performing his tasks for there is no tasks to speak of in the first
place. Again, complainant is a mere by-stander in the premises of the
respondent. Therefore, the power to control the means and manner to
be used in the performance of the work finds no application in the
case at bar.

Based from the foregoing, it is clear that the complainant is not an

employee of the respondent. No employer-employee relationship
exists between them. The Supreme Court in the case of JESUS G.
REYES, Petitioner, vs. GLAUCOMA RESEARCH
FOUNDATION, INC., EYE REFERRAL CENTER and
MANUEL B. AGULTO, Respondents, G.R. No. 189255, June 17,
2015, ruled that:

“Well settled is the rule that where a person who works

for another performs his job more or less at his own
pleasure, in the manner he sees fit, not subject to
definite hours or conditions of work, and is compensated
according to the result of his efforts and not the amount
thereof, no employer-employee relationship exists”.
(Emphasis supplied)

II. WHETHER OR NOT

COMPLAINANT IS ENTITLED
TO SALARY DIFFERENTIAL;

6
OVERTIME; NIGHTSHIFT
DIFFERENTIAL; HOLIDAY
PAY; AND PAYMENT OF
COLA

Respondent respectfully submits that the complainant is not entitled to the

said claims for the simple reason that he is not an employee of the
respondent.
Assuming but not admitting, just for the sake of discussion that the
complainant is entitled to the above claims, the same should be denied.

In the case of REGGIE ORBISTA ZONIO, PETITIONER, VS. 1ST

QUANTUM LEAP SECURITY AGENCY, INC. AND ROMULO Q.
PAR, RESPONDENTS, G.R. No. 224944, May 05, 2021, the Supreme
Court ruled that:

“On the other hand, for overtime pay, premium pays for
holidays and rest days, the burden is shifted on the
employee, as these monetary claims are not incurred in the
normal course of business. It is thus incumbent upon the
employee to first prove that he actually rendered service in
excess of the regular eight working hours a day, and that
he in fact worked on holidays and rest days.” (Emphasis
supplied)

In the case at bar, during the conference before the Honorable Labor Arbiter,
no evidence was adduced by the complainant to support his claim for
overtime, nightshift differential; holiday pay; and payment of cola. His
only justification that he is entitled to the same is his mistaken belief that he
is an employee of the respondent. Such belief is erroneous as he is not an
employee of the respondent as discussed above.

7
 PRAYER

WHEREFORE, it is respectfully prayed unto this Honorable

Commission that the instant case be DISMISSED for utter lack of merit.

Other reliefs are likewise prayed for.

___________________.

______________
Representative of the Respondent
HSIRI HOTEL APARTELLE
A Mabini Street Caloocan City (JuanLuna/A Mabini crossing),
Caloocan City
Mobile number: _____________________
Email address: ______________________

8
 VERIFICATION/CERTIFICATION

I, ______________, of legal age, under oath do hereby depose and

state that:

1. I am the authorized representative of HSIRI HOTEL

APARTELLE in the above-entitled case;

2. I have caused the preparation of the foregoing Position Paper;

3. I have read the contents hereof and the allegations therein are true
and correct of our own personal knowledge and based on the
authentic records;

4. That I have not commenced any other action or proceeding

involving the same issue in the Supreme Court and Court of
Appeals or different divisions thereof, or any tribunal, body or
agency and if I should hereafter learn that any other similar action
or proceeding has been filed or is pending before the same I
undertake to promptly inform this Honorable Court, the other
courts and such other tribunal or agency of that fact within five (5)
days therefrom.

IN WITNESS WHEREOF, we have hereunto set our hand this __

day of _______________, 2023 in _________________.

_____________
Affiant

SUBSCRIBED AND SWORN to before me, this __ day of

_____________________, affiant satisfactorily proven his identity through
his ____________________ ID with Numbers ___________, that he is the
same persons who personally signed before me the foregoing and
acknowledged that he executed the same.

9
 NOTARY PUBLIC

Doc. No. ___ ;

Page No. ___ ;
Book No. ___ ;
Series of 2023.

10