POSITION PAPER FOR THE COMPLAINANT

THE COMPLAINANT xxx EDUARDO D. LASTRELLA. xxx respectfully state:

INTRODUCTION

This position paper is being submitted by the complainant to the Honorable Labor
Arbiter in view of the failure to reach an amicable settlement with EMPLOYER

THE COMPLAINT


3. The pro forma complaint alleges that the complainant is an employed guard/Tanod of
the respondent Church; that her alleged salary was P143.00/day; that she was allegedly
employed on February 2, 2009; and that she was allegedly dismissed on April 20,
2010.

4. As appearing on the lower part of the pro forma complaint, the causes of action
alleged in the complaint are: (a) underpayment and/or nonpayment of salaries, (b)
nonpayment of overtime pay, holiday pay, holiday premium, ECOLA, and night shift
differential, and (c) illegal suspension (not dismissal).

5. The complaint is premised on the presupposition that an employer-employee
relationship allegedly existed between the parties.

ISSUES

6. The respondent HEREBY raise two (2) related legal issues:

6.1. WHETHER OR NOT A LEGAL AND BINDING EMPLOYER-EMPLOYEE
RELATIONSHIP, AS DEFINED BY LAW AND EXISTING JURISPRUDENCE, VALIDLY
EXISTED BETWEEN THE PARTIES; and

6.2. WHETHER OR NOT THE COMPLAINANT IS A MERE PRO BONO VOLUNTEER
OF THE PARISH CHURCH ASSIGNED THERETO BY THE BARANGAY COUNCIL OF
BARANGAY xxx OF xxx CITY AS PART OF THE MUTUAL RELATION OF HELP,
ASSISTANCE, SUPPORT, RESPECT, COMITY AND GOODWILL BETWEEN THE
BARANGAY AND THE PARISH FOR THE COMMON GOOD AND GENERAL
WELFARE OF THE PARISHIONERS AND CONSTITUENTS OF BARANGAY xxx.



STATEMENTS OF FACTS

7. The complainant xxx is a BARANGAY VOLUNTEER POLICE VOLUNTEER (or a
volunteer Barangay Tanod) of Barangay xxx, xxx City.

8. Attached is a copy of her ID No. xxx issued by Barangay Chairman xxx, marked as
Annex B hereof.

9. The Barangay xxx, under Chairman xxx, maintains a very close working institutional
relationship with the Parish, the Parish Priest, the Parish Pastoral Council, and other
mandated organizations within the Parish for the common good and the general welfare
of the parishioners of the Parish and constituents/voters of the Barangay.

10. One of the projects of the Barangay is to provide, detail or assign volunteer tanods
to the Parish from time to time or as the need arises to help secure the safety of the
perimeter, premises, facilities and properties of the Parish and to perform other
volunteer work for the good of the Parish whether or not such volunteer work is related
to security, public safety, or law and order.

11. The volunteers (including the complainant xxx) are themselves parishioners of the
Parish and constituents/voters of the Barangay and as such it is their moral duty to
render the necessary volunteer or pro bono assistance to help the Parish and the
Barangay attain their common statutory and moral objectives for the common material
and spiritual good and betterment of the quality of life of the parishioners and the
constituents/voters therein.

12. Attached is a copy of a CERTIFICATION, dated June 21, 2010, issued by the
Barangay Administrator, Mr. xxx, to attest to the truth of the foregoing statements,
marked as Annex C hereof.

13. The other Barangay volunteer police or volunteer Tanods who have been assigned
or detailed by the Barangay to the Parish, together with the complainant xxx, know for a
fact (and acknowledge and admit) the voluntary and pro bono nature of their working
relationship with and personal services to the Parish.

14. Attached is a copy of a recent joint CERTIFICATION (undated) signed by the five
(5) other Barangay volunteer police or volunteer Tanods, namely, xxx, xxx, xxx, xxx,
and xxx, stating that they were detailed or assigned by the Barangay to the Parish as
volunteers, that they voluntarily render their personal services to the Parish as pro bono
volunteers, and that the Parish provides them with an allowance of P4,000.00/month for
their voluntary services as an act of goodwill and compassion to them. The certification
is marked as Annex D hereof.

15. As an act of goodwill, compassion and humanitarianism of the Parish, it provides the
Barangay volunteer police (volunteer Tanods) assigned or detailed by the Barangay to
the Parish with an allowance of P4, 000.00/month out of the modest general fund of the
Parish which is constituted by voluntary donations or love offerings given by well-
meaning parishioners who attend the regular and special Masses and other spiritual
activities and projects of the Parish.

16. From February 2009 to June 5, 2010, the complainant xxx received the parish
allowance for Barangay volunteer Tanods in the amount of P4, 000.00/month.

17. Attached is a copy of the CERTIFICATION, dated June 22, 2010, signed by the
bookkeeper of the Parish, Ms. xxx, attesting to the foregoing statements, with copies of
the cash vouchers signed by the complainant xxx to prove the fact of receipt by her of
her monthly allowances, marked as Annexes E to E-59" hereof.

DISCUSSION

18. The respondents humbly submit:

18.1. that no valid, legal or binding employer-employee relationship existed between the
parties;

18.2. That the complainant knew and knows to this very day that she was a Barangay
volunteer police (volunteer Tanod) assigned or detailed by the Barangay to the Parish to
render voluntary services to the Parish, pursuant to the legal and moral duty of the
Barangay to maintain mutual institutional linkages and comity and support between the
Barangay and the Parish in the interest of the community;

18.3. That she ought to be thankful for the compassionate and humanitarian allowances
that has provided to her by the Parish, which had no legal duty in the first place, to
compensate a voluntary service of a pro bono child of God, as if to serve and work for
God and His Church is a materialistic and commercial livelihood;
18.4. That she ought to be thankful for the spiritual formation and transformation, in the
form of Masses, Sacraments, and other Spiritual Blessings, that she has received from
the Parish and the Parish Priest in the course of her purely pro bono or voluntary
relationship with and services to the Parish;

18.5. That there is no legal and factual basis for the complainant to hold the
respondents liable for the money claims (salaries, holiday pay, overtime pay, leave
benefits, ECOLA, etc.) alleged in the causes of action part of her pro forma complaint;

18.6. That she knew that the Barangay may change her work detail or assignment at
anytime and may assign or detail her to any other place within the territory and
jurisdiction of the Barangay in the interest of public service;

18.7. That the Barangay and the Parish have not dismissed or suspended her; and

18.8. That no evidence exists to prove that she was hired or employed as a salaried
probationary, casual, or regular employee of the Parish, either in the form of a
memorandum of appointment, payrolls, pay slips, social legislation premiums (SSS,
Pagibig, Philhealth, State Insurance Fund) or otherwise; and

18.9. That no evidence exists to prove that she was allegedly dismissed or
suspended or that administrative disciplinary actions were taken against her by the
Parish.

19. In the case of PEDRO CHAVEZ vs. NLRC, G.R. No. 146530, January 17, 2005,
where the threshold issue to be resolved was whether there existed an employer-
employee relationship between the respondent company and the petitioner, the
elements to determine the existence of an employment relationship were enumerated
as follows: (1) the selection and engagement of the employee; (2) the payment of
wages; (3) the power of dismissal; and (4) the employers power to control the
employees conduct. (See also: Perpetual Help Credit Cooperative Inc. vs. Faburada,
GR 121948, Oct. 8, 2001).

20. It was not the Parish who selected and engaged the complainant as a Barangay
volunteer police or volunteer Tanod.

20.1. She was screened, trained and accredited by the Barangay, who detailed her to
the Parish to render voluntary security and non-security services to the Parish.

20.2. The compassionate humanitarian monthly allowances provided to her by the
Parish were not salaries or wages.

20.3. The Parish had no power of dismissal over her because she was not organic
personnel of the Parish.

20.4. She was a Barangay volunteer police or volunteer Tanod under the control,
supervision and direction of the Barangay.

20.5. The Parish had no power of administrative discipline over her, in the form of
dismissal and other sanctions.

21. In the case of GLORY PHILIPPINES, INC. vs. BUENAVENTURA B. VERGARA and
ROSELYN T. TUMASIS, G.R. No. 176627, August 24, 2007, it was held that there are
three kinds of employees as provided under Article 280 of the Labor Code:

(1) regular employees or those who have been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the employer;

(2) project employees or those whose employment has been fixed for a specific project
or undertaking, the completion or termination of which has been determined at the time
of the engagement of the employee or where the work or service to be performed is
seasonal in nature and the employment is for the duration of the season; and

(3) casual employees or those who are neither regular nor project employees.

22. The complainant does not fall within any one of the abovementioned legal
categories.

23. The fact remains:

23.1. That she was a Barangay volunteer police (volunteer Tanod) under the direction
and control of the Barangay who was detailed to the Parish to render voluntary security
services and who rendered other kinds of voluntary services to the Parish other than
security services, e.g. cleaning her nearby surroundings or doing other minor errands
when she was idle;
23.2. That she could be detailed by the Barangay authorities anywhere else within the
Barangay jurisdiction at anytime as a Barangay volunteer police;

23.3. That she misunderstood the act of compassion of the Parish (i.e., allowance of
P4,000.00/month) as an act of hiring or employing or regularization;

23.4. That instead of expressing her gratitude to the Parish for providing her with
compassionate allowances as a Barangay volunteer police (plus other kinds of spiritual
formation supports) and instead of initiating a humble dialogue and mediation meetings
with the Parish and the Barangay authorities before taking any external legal actions,
she directly and maliciously commenced the instant arbitrary and baseless labor suit
against the Parish and the Parish Priest, thus, exposing the Parish and its spiritual
leaders and the Barangay to extreme public humiliation and mental anguish.


RELIEF

WHEREFORE, premises considered, it is respectfully prayed that that instant case be
DISMISSED for utter lack of merit.
FURTHER, the respondents respectfully pray for such and other reliefs as may be
deemed just and equitable in the premises.
Las Pinas City, June 25, 2010.


Xxx PARISH CHURH
AND FR. xxx
Respondents


By:


xxx
Attorney in Fact


xxx
Attorney in Fact


VERIFICATION
AND
ANTI-FORUM SHOPPING CERTIFICATION

WE, xxx, of legal age, married, Filipino, and with postal address at Convento, xxx Parish
Church, xxx St., xxx Village, xxx, xxx City, and/or xxx, of legal age, married, Filipino,
and with postal address at Barangay xxx, xxx Village, xxx, xxx City, state: That we are
the attorneys in fact of the abovenamed respondents in the abovecaptioned pending
labor case; That we caused the preparation thereof; that we have read its contents; and
that the same are true and correct of my own direct personal knowledge.

Further, pursuant to Rule 7 of the 1997 Rules of Civil Procedure and existing Supreme
Court circulars, we hereby certify that we have not heretofore commenced any other
action or proceeding involving the same issues in the Supreme Court, the Court of
Appeals, or any other tribunal or agency; that to the best of our knowledge, no such
action or proceeding is pending in the Supreme Court, the Court of Appeals, or any
other tribunal or agency; and that if we should hereafter learn that other similar or
related actions or proceedings has been filed or is pending before the Supreme Court,
the Court of Appeals, or any other tribunal or agency, we undertake to report that fact
within five (5) days therefrom to this court.