Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

SEVENTH DIVISION
th
5 Flr. DOLE RO. VII Building
Cor. Gen. Maxilom & Gorordo Avenues, Cebu City
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ANTONIO B. KADUSALE, NLRC Case No. VAC-01-000046-

Complainant-Appellant, 2019
RAB Case No. VII-02-0027-2018-D
-versus-

GUILLERMO “BELLY’ LOPEZ

AND ZALDY S. LOPEZ,
Respondents-Appellees.

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REPLY TO OPPOSITION TO THE MOTION FOR RECONSIDERATION OF

RESPONDENTS

Respondent-Appellees, through undersigned counsel, unto this

Honorable Commission, most respectfully states:
1. That the undersigned was furnished with a copy of the OPPOSITION
TO THE MOTION FOR RECONSIDERATION OF RESPONDENTS, hence,
this REPLY is filed, to consolidate all issues for the Commission’s
resolution of the current motion.

2. It must be shed light that at the outset of this case, there must be a
determination by substantial evidence that there exists an
employment relationship before the court can proceed in resolving
issues on illegal dismissal.
Thus, “It is a basic rule of evidence that each party must prove
his affirmative allegation. If he claims a right granted by law, he must
prove his claim by competent evidence, relying on the strength of his
own evidence and not upon the weakness of that of his opponent. The
test for determining on whom the burden of proof lies is found in the

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 result of an inquiry as to which party would be successful if no
evidence of such matters were given. In an illegal dismissal case, the
onus probandi rests on the employer to prove that its dismissal of an
employee was for a valid cause. However, before a case for illegal
dismissal can prosper, an employer-employee relationship must first
be established. Thus, in filing a complaint before the LA for illegal
dismissal, based on the premise that he was an employee of
respondents, it is incumbent upon petitioner to prove the employer-
employee relationship by substantial evidence” (Jesus G. Reyes V
Glaucoma Research Foundation, INC., et al. G.R. No. 189255, June 17,
2015)
This, however, was failed to be followed by this Honorable
Commission. By putting out of context the mere assertion of abandonment
as an admission against the respondent as being an “employer” of the
Complainant-Appellant. The term “abandonment” cannot necessarily be and
easily be interpreted by mere presumption in relation to an existing
employment relationship, as the same can easily be interpreted in light of
the context of a contract between complainant and respondent which is the
use of pedicab in exchange of a consideration in the latter’s public transport
business.
3. Notwithstanding that the Complainant-Appellant failed to
substantially prove and present evidence. Employment relationship cannot
be established as the most important element of control is found wanting in
this case. To ascertain the existence of an employment 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 call “control test”. Of these four, the last one is the most important.
The so-called “control test” is commonly regarded as the most crucial and
determinative indicator of the presence or absence of an employment
relationship. Under the control test, an employment relationship exists
where the person for whom the services area performed reserves the right
control not only the end achieved, but also the manner and means to be used
in reaching that end.

In this case, the power to control is absent. Complainant is not subject

to the control and supervision of private respondent. It appears that
complainant can actually choose to stop using and driving respondent’s unit
the moment he decides to do so. Complainant is free to drive the unit at any
time of the day, that there are no conditions set unto the complainant’s
manner of driving and in operating the unit, except that the unit is to be

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surrendered to the operator when there are repairs needed to be done and
to remit Php 250.00 daily.

4. The Fact of dismissal was not established. In this case

Complainant was not deprived by the Respondent of driving the unit, in
fact, it was complainant who first abandoned the unit. The respondent
even told the complainant to drive his other pedicab unit while his pedicab
was under repair. Instead the complainant drove the pedicab of another
operator clearly showing his intent to abandon his duties to the
respondent and work for another operator. Therefore, the only logical
conclusion is he does not intend to drive the same anymore.

5. Furthermore, Complainant failed to present documents to

prove that he is an employee of private Respondent. Any competent and
relevant evidence to prove relationship would have suffered as there is no
hard and fast rule designed to establish the aforesaid elements.
Identification Cards, Cash Vouchers, Social Security Registration,
Appointment letters or employment contracts, payrolls, organization
charts, and personnel list, may serve as evidence of employee status.
Complainant merely relied on their bare allegation without presenting any
piece of evidence to support their claim.

6. Assuming that there is employment relationship, the

complainant did not prove with preponderance of evidence that he was
indeed employed by the operator as a driver of one of his pedicab units
from 2015. The complainant only presented as evidence the mayors
permit to drive which was applied for on May 9 ,2017 and expired on
December 31, 2017. Thus, the computation for separation pay is
erroneous. The years 2015 and 2016 should not be included in the
computation.

PRAYER
WHEREFORE, premises considered, it is respectfully prayed that the
Decision dated February 15, 2019 be considered and set aside and a new
one entered in favor of Respondent/Appellants.
Finally, Respondents/Appellees pray for such other reliefs as may be
deemed just and equitable.
Dumaguete City, April 24, 2019.

GUILLERMO LOPEZ ZALDY S. LOPEZ

Colon, Bagacay, Colon, Bagacay,
Dumaguete City Dumaguete City
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