Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch
Cordillera Administrative Region
Baguio City

ALEXANDER BAÑEZ, GERARD HAM,

and GLENNFREY REBAULA
Complainant,

-versus- NLRC CASE NO. RAB-CAR-05-0179-14

BRYAN E. MAGULING,
Respondent.
x-------------------------------------------------------------x
EFREN LALAS,
Complainant,

-versus- NLRC CASE NO. RAB-CAR-05-0184-14

BRYAN E. MAGULING,
Respondent.
x-------------------------------------------------------------x

POSITION PAPER
(for the respondent)

Respondent Bryan Maguling, through the undersigned counsel,

and unto this Honorable Office most respectfully submits this Position
Paper and further avers that:

PARTIES

1. Complainants are of legal ages, Filipinos, and hold addresses

stated in their respective complaints. On the other hand, respondent is
of legal age, Filipino, married, and with office address at 56 Anita Sy
Bldg., Bonifacio St., Baguio City;

BRIEF STATEMENT OF THE FACTS AND CASE

2. Complainants in the instant case were employed by

respondent last January 28, 2013. Their respective employment ended
last July 2013 as such was the arrangement in the contract. For the

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perusal of this Honorable Office, we have attached hereto as Annexes “1
- 4” copies of their respective employment contracts;

3. Subsequently, the aforesaid contracts were not renewed

and thus, their employment with respondent ceased as well. Disgruntled,
complainants aver that they were illegally dismissed. Respondent
remained unmoved as the contracts already expired. As a result,
complainants elevated the matter before this Honorable Office;

ISSUES

WHETHER OR NOT COMPLAINANTS WERE ILLEGALLY DISMISSED.

WHETHER OR NOT COMPLAINANTS ARE ENTITLED TO SEPARATION PAY AND

BACKWAGES.

WHETHER OR NOT COMPLAINANTS ARE ENTITLED TO SERVICE INCENTIVE

LEAVE PAY.

WHETHER OR NOT COMPLAINANTS ARE ENTITLED TO HOLIDAY AND 13th

MONTH PAY.

WHETHER OR NOT THERE WAS UNDERPAYMENT.

WHETHER OR NOT RESPONDENT IS ALSO ENTITLED TO ATTORNEY’S

FEES AND DAMAGES DUE TO THE FILING OF THIS BASELESS
COMPLAINT.

ARGUMENTS/DISCUSSIONS

4. As regards the first issue, it is undeniably clear that

complainants were not illegally dismissed. They are bound by the
contracts they have executed with respondent. It must be remembered
that the duration of the contracts were six (6) months only and such is
very glaring on the face of the contracts. The Ultimate Court, citing Brent
and Purefoods cases, edifies us in this manner, to wit:

“Accordingly, and since the entire purpose behind the

development of legislation culminating in the present
Article 280 of the Labor Code clearly appears to have
been, as already observed, to prevent circumvention
of the employee’s right to be secure in his tenure, the
clause in said article indiscriminately and completely
ruling out all written or oral agreements conflicting
with the concept of regular employment as defined

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 therein should be construed to refer to the
substantive evil that the Code itself has singled out:
agreements entered into precisely to circumvent
security of tenure. 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 become
pointless and arbitrary, unjust in its effects and apt to
lead to absurd and unintended consequences” (Brent
School Inc. vs. Zamora G.R. No. 48494, 5 February 1990,
181 SCRA 702) emphasis ours; and

“The Court thus laid down the criteria under

which fixed-term employment could not be said to be
in circumvention of the law on security of tenure, thus:

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 the

employee dealt with each other on more or less equal
terms with no moral dominance exercised by the
former or the latter.” (Pure Foods Corp. v. NLRC, 347
Phil 434, 443 (1997).

5. From the foregoing jurisprudence, it is indisputably apparent

that herein complainants were not illegally dismissed. The employment
was not attended by any force or duress and there was no moral
dominance over complainants as they can simply not enter into a
contract in the event that the terms were unacceptable. In fact, they are
on duty on a two (2) to six (6) days setup every week depending on the
volume of customers using the internet. This is one of the stipulations in
the contract and complainants voluntarily concurred thereto;
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 6. With respect to the second issue, a fixed-term employee or
contractual employee is a kind of employee whose employment is fixed
for a certain period time. When the contract expires and is not renewed
by his or her employer, the employment of the contractual employee is
deemed to have been automatically terminated;

7. Without fear of being repetitious, it is worthy to note that

when the contract with their employer ended, what actually took place
was an expiration of term and not a dismissal in legal contemplation.
Hence, in the absence of an actual dismissal, there can be no claim for
separation pay. Since there was no illegal dismissal to speak of, it
necessarily follows that backwages are not due as well;

8. With regard to the third issue, the averments of

complainants in their complaint is unworthy of merit. Some of the
complainants maintain that they were employed as early as 2010 and the
rest 2011. This is, without a doubt, just a ploy in order to persuade this
Honorable Office from granting the aforesaid benefit. The contracts
which complainants signed vividly exhibit their six (6) month period of
employment. With all due respect, the Labor Code enlightens in this
wise, to wit:

“Article 95. Right to service incentive leave. (a) Every

employee who has rendered at least one year of
service shall be entitled to a yearly service incentive
leave of five days with pay.” emphasis ours.

9. Indeed, the allegations of complainants were merely

concoction of facts and a product of malicious minds. To claim that they
were employed years back when their contracts show otherwise is
simply outrageous and incredible;

10. Concerning the fourth issue, complainants contention in

their complaint were anchored on mere allegations and as enshrined in
numerous decisions of the Supreme Court such as in the case of Villar,
et.al. vs. NLRC., G.R. No. 130935, May 11, 2000, the Highest Court ruled
that:

“Mere allegations without supporting proofs are

not evidence in themselves”;

In the case of Ramoran vs. Jardine CMG Life

Insurance Co., Inc., 326 SCRA 208, the Topmost Court
ruled that:

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 “Allegations must be proven by sufficient
evidence – mere allegation is not evidence”;

And further in the case of Garcia vs. PAL, G.R. No.

162868, July 14, 2008, the Uppermost Court ruled that:

“It is elementary that he who alleges a fact must

prove it, and a mere allegation is not evidence”; and

11. As to the fifth issue, complainants claim that there was

underpayment for the years served prior to their contracts. Such
declaration is indubitably rooted from the imaginations of complainants.
Once again, their contracts appended as annexes to this pleading can
reveal the truth;

12. Finally, as to the last issue, due to the filling of this baseless
complaint, herein respondent was compelled to engage the services of
the undersigned to protect his interest and agreed to pay attorney’s fees
in the amount of Fifty Thousand Pesos (PHP50,000.00). This is in
consonance with the Court’s ruling that:

“Attorney’s fees may be awarded when a party

is compelled to litigate or incur expenses to protect his
interest by reason of an unjustified act of the other
party.” (Terminal Facilities and Services Corporation vs.
Philippine Ports Authority, G.R. No. 135639, February
27, 2002).

PRAYER

WHEREFORE, it is reverentially prayed that the Honorable Labor

Arbiter renders judgment, to wit:

1. Ordering the dismissal of the instant complaint for utter lack

of merit; and

2. Ordering the complainant to pay respondent the amount of

Fifty Thousand Pesos (P50,000.00) for attorney’s fees.

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

Makati City for Baguio City, this 16th day of July, 2014.

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 ATTY. CLINT MASIRAG FERNANDEZ
3F Gonzales Bldg, 1888 Orense St.,
Guadalupe Nuevo, Makati City
PTR No. 9427712 / 02-21-14
IBP No. 960907 / 01-27-14
Roll No. 58806 / 05-05-10
MCLE Compliance No. IV – 0009993
December 05, 2012

Copy Furnished: (Personal Service)

Alexander Bañez

Gerard Ham

Glennfrey Rebaula

Efren Lalas

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 CERTIFICATION and VERIFICATION

I, BRYAN E. MAGULING, of legal age, married, Filipino, and with

office address at #56 Anita Sy Bldg., Bonifacio St., Baguio City, on oath
declare:

That I am the respondent in the above-entitled case;

That I have caused the preparation of the foregoing pleading and

that the allegations therein are true and correct of my own personal
knowledge and information and based on authentic records;

That I have not heretofore commenced any action or proceeding

involving the same subject/issue before the Supreme Court, Court of
Appeals, or before any tribunal or agency;

That to the best of my knowledge, no such action or proceeding

involving the same subject/issue is pending with the Supreme Court,
Court of Appeals, or before any tribunal or agency; and

That should there be any action or proceeding which is either

pending or may have been terminated, we must state the status thereof,
and if, thereafter, there should be a similar action or proceeding which
was either filed or is pending with the Supreme Court, Court of Appeals,
or before any tribunal or agency, I hereby undertake to report such fact
within five (5) days from knowledge thereof to this Honorable Court
where the original pleading was filed.

IN WITNESS WHEREOF, I have hereunto affixed my signature

this__________ 2014 at _____________________, Philippines.

BRYAN E. MAGULING
-Affiant-

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 SUBSCRIBED AND SWORN to before me this ____________ 2014 at
_______________________, Philippines.

NOTARY PUBLIC

Doc. No. _______________;

Page No. _______________;
Book No. ______________;
Series of 2014