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Republic of the PhilippinesDepartment of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSIONQuezon City
AARON BARON CARREON,RAFFY GREG SANTAROSA Complainant,
-versus- NLRC CASE NO. 05-000000-13
THE CLUB DE MANILLE, and/or RICHIE DE LEON,
Respondent,x---------------------------------------------x
MEMORANDUM
COME NOW RESPONDENTS, through the undersigned counsel, unto this Honorable
Tribunal most respectfully submit and present this Memorandum in the above-titled case and
aver that:
PREFATORY STATEMENT
There is nothing essentially contradictory between a definite period of an employment
contract and the nature of the employee's duties set down in that contract as being "usually
necessary or desirable in the usual business or trade of the employer." The concept of the
employee's duties as being "usually necessary or desirable in the usual business or trade of the
employer" is not synonymous with or identical to employment with a fixed term. (Brent School
vs. Zamora (G.R. No. L-48494, 05 February 1990).
THE PARTIES
1. Complainant AARON BARON CARREON (Carreon for brevity) and RAFFY GREG
SANTAROSA (Santarosa for brevity) were casual employee waiters of the respondent.
2. Defendant THE CLUB DE MANILLE (the Club for brevity) is a non-stock, non-profit
corporation duly organized and existing under and by virtue of Philippines Laws, established for
the primary purpose of promoting the physical well-being of its members and foster social inter-
relationship and spirit of good fellowship and camaraderie among them; secondarily, to provide
and maintain the necessary facilities for pleasure, recreation and diversion, among other.
3. Individual respondent, RICHIE DE LEON (De Leon for brevity) is being sued in his
official capacity as the President of the Club.
I. STATEMENT OF FACTS
On May 19, 2011, Complainants applied for and were accepted to work for the Club as Extra
Waiters to perform banquet and wait services during special events, during periods of high
number of banquet bookings.
Upon their application they were informed by the Club that at said time, there was no
available positions for regular waiters. The only available positions are casual positions only for
extra waiters.
As extra waiters, it was their sole task to assist and help the regular waiters whenever the
number of events were to numerous for said regular waiters to handle alone.
They were also informed that in the event that the number of scheduled banquets was of
manageable number, they were not required to report for work.
Furthermore, they Mr. Carreon and Mr. Santarosa were informed that their contract will only
be up to and will expire on April 2013 and 08 February 2013 respectively.
Upon the lapse of their contract of employment, the complainant erroneously averred that
they were regular employees and were illegally dismissed.
II. ISSUES OF THE CASE
A.) WHETHER OR NOT THE COMPLAINANTS ARE REGULAR EMPLOYEES
OF THE RESPONDENTS?
B.) WHETHER OR NOT THE COMPLAINANTS WERE ILLEGALLY
DISMISSED?
C.) WHETHER OR NOT THE COMPLAINT SHOULD BE DISMISSED IN
FAVOR OF THE RESPPONDENTS
III. ARGUMENTS/ DISCUSSION
WHETHER OR NOT THE COMPLAINANTS ARE REGULAR EMPLOYEES OF
THE RESPONDENTS?
WHETHER OR NOT THE COMPLAINANTS WERE ILLEGALLY DISMISSED?
The Complainants argue that they are not casual employees but rather they are regular
employees.
Under our jurisprudence;
An employment shall be deemed regular if the employee performs activities
usually necessary or desirable in the usual business and trade of the employer OR
if the employee has rendered at least one (1) year of service, whether the service
be continuous or broken. Ferrochrome Phils. vs. NLRC, 236 SCRA 315 G.R.
105538 [5 September 1994]
The primary standard, therefore, of determining a regular employment is the
reasonable connection between the particular activity performed by the employee
in relation to the usual business or trade of the employer. The test is whether the
former is usually necessary or desirable in the usual business or trade of the
employer. The connection can be determined by considering the nature of the
work performed and its relation to the scheme of the particular business or trade
in its entirety. ALSO, if the employee has been performing the job for at least one
year, even if the performance is not continuous or merely intermittent, the law
deems the repeated and continuing need for its performance as sufficient evidence
of the necessity if not indispensability of that activity to the business. Hence, the
employment is also considered regular, but only with respect to such activity and
while such activity exists. (De Leon vs. NLRC [G.R. No. 70705, 21 August 1989)
Considering the above mentioned, it may seem that the complainants may have a point in
their argument that they are regular employees of the corporation since it is arguable that they are
performing work that is necessary and desirable to the business of the Respondent. However, this
is not so.
The Complainants are term employees. As term employees, they are neither regular or
casual employees. Furthermore, in term employment, the question of whether the employee is
performing work that is necessary and desirable to the business of the employer is irrelevant.
Under Brent School vs. Zamora;
The question immediately provoked by a reading of Article 319 is whether or not
a voluntary agreement on a fixed term or period would be valid where the
employee "has been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer." The definition seems a
non sequitur. From the premise that the duties of an employee entail "activities
which are usually necessary or desirable in the usual business or trade of the
employer the" conclusion does not necessarily follow that the employer and
employee should be forbidden to stipulate any period of time for the performance
of those activities. There is nothing essentially contradictory between a definite
period of an employment contract and the nature of the employee's duties set
down in that contract as being "usually necessary or desirable in the usual
business or trade of the employer." The concept of the employee's duties as being
"usually necessary or desirable in the usual business or trade of the employer" is
not synonymous with or identical to employment with a fixed term.
Such type of employment is valid as long as the fixed term employment was not
entered to circumvent tenurial rights of the employees. According to PNOC vs NLRC;
The two guidelines, by which fixed contracts of employments can be said NOT to circumvent
security of tenure, are either:
1. The fixed period of employment was KNOWINGLY AND VOLUNTARILY AGREED
UPON by the parties, without any force, duress or improper pressure being brought to
bear upon the employee and absent any other circumstances vitiating his consent; or:
2. It satisfactorily appears that the employer and employee DEALT WITH EACH OTHER
ON MORE OR LESS EQUAL TERMS with no moral dominance whatever being
exercised by the former on the latter. (PNOC vs. NLRC [G.R. No. 97747, 31 March
1993])
In the case at bar, it is clear that the Club complied with the aforesaid requirements.
First, during the application of the Complainants, there was no compulsion or any
vitiation of consent that occurred. The Complainants were apprised of the fact that that at then
said time, there was no available positions for regular waiters. The only available positions are
casual positions only for extra waiters. They were informed also that as extra waiters, it was their
sole task to assist and help the regular waiters whenever the number of events were to numerous
for said regular waiters to handle alone and that in the event that the number of scheduled
banquets was of manageable number, they were not required to report for work. Furthermore,
they Mr. Carreon and Mr. Santarosa were informed that their contract will only be up to and will
expire on April 2013 and 08 February 2013 respectively. This clearly shows that they entered
into such contract with full knowledge and intention. As a matter of fact, they do not even have
any allegations of vitiation of consent or bad faith on the part of the Club on their Complaint and
Position Paper.
Second, with regard to the requirement that it satisfactorily appears that the employer and
employee dealt with each other on more or less equal terms with no moral dominance whatever
being exercised by the former on the latter, it is presented that the Club complied with such
requirement. There are naturally inequalities in the position of employer and employee, however
in such case; such negotiations were made more or less in equal terms because there were no
compulsions involved. The Complainants were not compelled to take the job due to economic
factors. They were educated since they were college graduates and they were not economically
challenged. Therefore, they were not forced to accept such work.
The aforesaid requirements are a question of fact which must be alleged and proved. In
case at bar, there was no indication of force, duress, or improper pressure exerted on petitioners
when they signed the contracts. Further, there was no proof that respondents were regularly
engaged in hiring workers for work for a minimum period of five months to prevent the
regularization of their employees, there was no allegations of moral compulsion or vitiation of
consent in the contract therefor such fixed term of employment is deemed uncontroverted and
valid. As Brent School vs. Zamora states:
It should have no application to instances where a fixed period of employment
was agreed upon knowingly and voluntarily by the parties, without any force,
duress or improper pressure being brought to bear upon the employee and absent
any other circumstances vitiating his consent, or where it satisfactorily appears
that the employer and employee dealt with each other on more or less equal terms
with no moral dominance whatever being exercised by the former over the latter.
Unless thus limited in its purview, the law would be made to apply to purposes
other than those explicitly stated by its framers; it thus becomes pointless and
arbitrary, unjust in its effects and apt to lead to absurd and unintended
consequences. (Brent School vs. Zamora (G.R. No. L-48494, 05 February 1990])
Therefore, since it is submitted that the contract of fixed term employment between the
parties is valid. It is submitted that the Complainants were not dismissed, but rather their contact
just expire. Therefore there was no illegal dismissal. It is also clear that the Complainants failed
to allege and provide proof that the contract between the parties is invalid and as stated in
Machica vs. Roosevelt Center Inc.:
The rule is that one who alleges a fact has the burden of proving it; thus,
petitioners were burdened to prove their allegation that respondents dismissed
them from their employment. It must be stressed that the evidence to prove this
fact must be clear, positive and convincing. The rule that the employer bears the
burden of proof in illegal dismissal cases finds no application here because the
respondents deny having dismissed the petitioners.
As clearly stated, it is the burden of the Complainant to prove that they were illegally
dismissed. In the case at bar, the complainant merely provide allegations without any factual
proof that they were illegally dismissed. They failed to prove that their fixed term employment
contract is meant to contravene their tenurial rights and is in violation of the guidelines provided
for in PNOC vs. NLRC.
Lasly, as said by Justice Jose C. Mendoza; it is true the Constitution regards labor as "a
primary social economic force." But so does it declare that it "recognizes the indispensable role
of the private sector, encourages private enterprise, and provides incentives to needed
investment." The Constitution bids the State to "afford full protection to labor." But it is equally
true that "the law, in protecting the right's of the laborer, authorizes neither oppression nor self-
destruction of the employer." And it is oppression to compel the employer to continue in
employment one who is guilty or to force the employer to remain in operation when it is not
economically in his interest to do so. (Serrano vs. NLRC G.R. No. 117040, 27 January 2000)
PRAYER
WHEREFORE, premise considered, it respectfully prayed for that this Honorable
Tribunal that Complainants prayer to declare the complainant as illegally dismissed and to be
awarded damages be DENIED for having no cause of action and the complaint be DISMISSED
for being clearly unmeritorious.
Other just and equitable relief under the foregoing are likewise being prayed for.
Respectfully submitted.
Quezon City, Philippines. 26 October, 2013.
BEST LAW OFFICESCounsel for the Respondents
Number One Street,Paseo de Numero Uno, Makaty City
Mobile: +63917 1BEST(2378)Tel: +63 2 1111111Fax: +63 2 0111111
info@bestlaw.com.ph
By:
ATTY. LOVE LABIOSIBP Lifetime No. 000000; 1/15/2013, Makati City PTR No. 000000; 01/25/2013, Makati City
Roll of Attorney No. 000000 MCLE Compliance No. IV – 0000000
ATTY. PRECIOUS APRIL DIAMANTEIBP Lifetime No. 000000; 1/15/2013, Makati City PTR No. 000000; 01/25/2013, Makati City
Roll of Attorney No. 000000
Copy Furnished:
AARON BARON CARREONABC apartment, Brgy. A, Quezon City
RAFFY GREG SANTAROSARG Towers, R Ville, Manila