Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Arbitration Branch III
City of San Fernando, Pampanga

CHARLIE DELTA,
Complainant,

-versus- NLRC CASE NO. RAB-III-03-21915-17

BRAVO FORTUNE SERVICES INC.

and ALPHA SEMICONDUCTOR
PHIL., CORPORATION,
and individual respondents JUANA
SOTTO, JAVEZ KIM, and MARIA
CRUZ
Respondents,
x--------------------------x

POSITION PAPER

Respondent ALPHA SEMICONDUCTOR PHIL., CORPORA-

TION, through the undersigned counsel and unto this Labor Arbitration
Office, most respectfully submits this position paper and avers the
following to wit:

PREFATORY STATEMENT

The complaint for illegal dismissal, illegal suspension, non-

payment of salaries, overtime pay, 13th month pay, moral and
exemplary damages, and attorney’s fees filed against respondent
ALPHA SEMICONDUCTOR PHIL., CORPORATION is premised on
the presupposition that there is an employer-employee relationship
between complainant and ALPHA SEMICONDUCTOR PHIL.,
CORPORATION, when in truth and in fact, none exists.

THE PARTIES

Complainant CHARLIE DELTA is of legal age, Filipino, 41 years

old, and with postal/residential address at 401 San Francisco,
Mabalacat, Pampanga where he may be served with summons and
other legal processes of this Honorable Office.

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 Respondent BRAVO FORTUNE SERVICES, INC. is a
corporation duly organized and existing under and by virtue of the laws
of the Republic of the Philippines, with principal office at XYZ Phil Excel
Business Park, M. Roxas Hi-way, Clark Freeport Zone where it may be
served with notices and processes of the Honorable Arbitration
Branch.

Respondent ALPHA SEMICONDUCTOR PHIL., CORPORA-

TION is a corporation duly organized and existing under and by virtue
of the laws of the Philippines, with principal office address at MA Roxas
Ave., Clark Special Economic Zone. Respondent ALPHA
SEMICONDUCTOR PHIL., CORPORATION may be served with the
processes and notices of the Honorable Office through undersigned
counsel at CTPP LAW OFFICES, Unit King, Palace Building, Angeles
City.

THE ANTECEDENT FACTS

1. On 09 May 2012, respondent ALPHA engaged the

services of respondent BRAVO under an agreement entitled “Service
Agreement”. Under the said contract, Bravo would operate as a duly-
registered independent contractor for the purpose of providing workers
for assignment to respondent ALPHA for the contract period of 10
February 2012 to 09 February 2013.

See Annex 1 ALPHA – SERVICE AGREEMENT.

2. On 12 May 2012, respondent BRAVO and the complainant

executed an agreement entitled “Employment Contract” wherein
respondent BRAVO employed complainant as an agency worker, with
a specific designation as a driver to be assigned with respondent
ALPHA, pursuant to the Service Agreement between respondent
ALPHA and respondent BRAVO.

See Annex 2 ALPHA – EMPLOYMENT CONTRACT.

3. On 14 May 2012, two after his employment with

respondent BRAVO, complainant proceeded to report to respondent
ALPHA to begin his assignment as a driver.

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 4. On 19 October 2012, complainant was driving the vehicle
(Toyota Innova Plate No. 12345) of respondent on an official trip from
Laguna to Pampanga, when the vehicle suddenly caught fire beginning
from the front portion of the vehicle. Despite the efforts of complainant
to stop the fire, the fire spread and caused the vehicle to burn.

5. After the incident, respondent ALPHA followed standard

operating procedures and reported the matter to respondent BRAVO
to give it the opportunity to conduct the proper administrative
investigation on the incident.

6. On 24 October 2012, respondent BRAVO issued a notice-

to-explain directing complainant to give a written explanation on why
he should not be sanctioned for violation of their company code of
conduct.

See Annex 3 ALPHA – NOTICE-TO-EXPLAIN.

7. On 30 October 2012, upon receipt of complainant’s written

explanation, respondent BRAVO proceeded to impose a 15-day
preventive suspension order against complainant and informed
complainant that further investigation will be required, thereby placing
complainant under preventive suspension from 31 October 2012 to 16
November 2012.

See Annex 4 ALPHA – PREVENTIVE SUSPENSION.

8. On 12 November 2012, respondent BRAVO issued a

notice of hearing inviting complainant to an administrative hearing on
15 November 2012.

See Annex 5 ALPHA – FINAL ADMINISTRATIVE HEARING.

9. On 13 November 2012, respondent BRAVO issued an

order informing complainant that his assignment with respondent
ALPHA will formally cease on 17 November 2012 and thereby directing
him to report to human resource office of respondent BRAVO for re-
assignment purposes.

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 10. On 21 November 2012, complainant filed the subject case
for illegal constructive dismissal against respondents.

ISSUES

The issues, as far as respondent ALPHA SEMICONDUCTOR

PHIL., CORPORATION is concerned, are as follows:

WHETHER OR NOT COMPLAINANT WAS

ILLEGALLY PREVENTIVELY SUSPENDED.

II

WHETHER OR NOT COMPLAINANT WAS

ILLEGALY DISMISSED.

III

WHETHER OR NOT COMPLAINANT IS

ENTITLED TO HIS MONETARY CLAIMS.

IV

WHETHER OR NOT COMPLAINANT IS

ENTITLED TO MORAL AND EXEMPLARY
DAMAGES AND ATTORNEY’S FEES.

DISCUSSION

Complainant was not illegally

preventively suspended.

In the case of EVELYN TOLOSA vs. NLRC, G.R. No. 149578,

April 10, 2003, it was emphasized that the jurisdiction of labor arbiters
and the National Labor Relations Commission is limited to disputes
arising from employer-employee relationships.

In determining whether or not employer-employee relationship is

present, four-fold test is applied to examine four elements: (1) the

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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. This test resolved the case of ATOK BIG WEDGE
COMPANY, INC. vs. JESUS P. GISON, G.R. No. 169510, August 08,
2011, establishing that there is no employer-employee relationship
between the petitioner and respondent.

Examining the aforementioned facts and the Service Agreement

entered into by respondent ALPHA and respondent BRAVO, there
exists no employer-employee relationship between complainant and
respondent ALPHA. Further discussions for each of the elements will
be shown hereunder.

First, complainant herein was selected and hired by respondent

BRAVO to be subsequently assigned in the work premises of
respondent ALPHA as a driver.

Second, it was respondent BRAVO who paid for the wages of

complainant as well as his benefits. Complainant was receiving his
salary from respondent BRAVO. A copy of the payroll prepared by
respondent BRAVO is hereto attached and made integral part hereof.
See Annex 10 ALPHA – PAYROLL.

Third, the power of dismissal was exercised by respondent

BRAVO. This was evident on the three memos sent to complainant and
when respondent BRAVO terminated his employment.

Lastly, and most importantly, respondent ALPHA does not

exercise control over the manner and means to be used to achieve the
desired output. Only compliance with employment requirements, work
quality, and company rules and regulation shall be exercised by the
complainant.

In the case of ROYAL HOMES MARKETING CORPORATION

vs. FIDEL P. ALCANTARA, G.R. No. 195190, July 28, 2014, it has
been ruled by the Supreme Court that merely company rules and
regulations, code of ethics, periodic evaluation, and exclusivity clause
of contract are not grounds in determining whether or not a company
has control over an employee.

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 Withal, the four-fold test clearly shows that there exists no
employer-employee relationship between complainant and respondent
ALPHA SEMICONDUCTOR PHIL., CORPORATION as evidenced by
the said contract.

“The selection of the personnel to be detailed in the

premises of the PRINCIPAL shall be the prerogative
of the SERVICE PROVIDER, since it is
understood that the SERVICE PROVIDER is the
employer of the said personnel and considering
further that there is no employer – employee
relationship that exist between the PRINCIPAL
and the SERVICE PROVIDER’S personnel…”

Clearly, in the absence of employer-employee relationship, there

can be no illegal preventive suspension between complainant and
respondent ALPHA SEMICONDUCTOR PHIL., CORPORATION.

Complainant was not illegally

dismissed.

After diligent examination of each of the elements of the four-fold

test in the relationship between complainant and respondent ALPHA,
it is evident that there exists no employer-employee relationship
between the two. Therefore, illegal dismissal cannot be filed against
respondent ALPHA SEMICONDUCTOR PHIL., CORPORATION.

In the case of CESAR C. LIRIO vs. WILMER D. GENOVIA, G.R.

No. 169757, November 27, 2011, it was established that illegal
dismissal will not prosper in the absence of employer-employee
relationship.

The same was also ruled by the Supreme Court in the case of
LOLITA LOPEZ vs. BODEGA CITY, G.R. No. 155731, September 03,
2007 wherein the petitioner’s complaint for illegal dismissal against
respondent was dismissed for the non-existence of employer-
employee relationship.

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Complainant is not entitled to
his monetary claims.

In the absence of employer-employee relationship, there can be

no illegal dismissal between complainant and respondent ALPHA.
From the foregoing facts and the resolution of the first and second
issues, it is clear that the dismissal of the complainant was the
responsibility of respondent BRAVO.

Respondent ALPHA did not terminate complainant for the latter

is not an employee of the former. Hence, respondent ALPHA is not
liable for the complainant’s unpaid salaries, overtime pay, 13th month
pay, nor separation pay.

The contract entered into by respondent ALPHA and respondent

BRAVO further supports the statement above as seen in section B,
paragraph 2 of the Service Agreement:

"The SERVICES PROVIDER, as the employer of

the personnel engaged for this contract shall
pay all the wages, salaries as well as the benefits
of the employees under the Labor Code and the
new Department Order No. 18 – A, series of 2011
on: safe and healthful working conditions; labor
standards such as service incentive leave, rest
days, overtime pay, 13th month pay, separation
pay, retirement benefits; contributions and
remittances of SSS, ECC, Philhealth, Pag-ibig and
other applicable rules, laws and agreement with the
PRINCIPAL…”

Complainant is not entitled to

moral and exemplary damages
and attorney’s fees.

From both the Service Agreement entered into by respondent

ALPHA and respondent BRAVO, and from the Employment Contract
entered into by complainant and respondent BRAVO, it is evident that
complainant was selected and hired by respondent BRAVO.
Complainant is the employee of respondent BRAVO and not of
respondent ALPHA.

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 Respondent ALPHA, not being the employer of complainant, did
not violate any laws present in the Labor Code. Hence, respondent
ALPHA is not entitled to moral and exemplary damages and attorney’s
fees.

Respondent ALPHA is also protect by the contract as seen in the

section B, paragraph 3 of the Service Agreement:

“The SERVICES PROVIDER shall be solely

responsible for any claim or claims made by any
of its personnel for any unpaid or underpaid
wages, salaries or compensation, as the case
may be, or in connection with the provision of the
Labor Code, DOLE Department Orders, Wage
Orders, Wage Orders, Employment and
Compensation Law, Social Security Act, Philhealth,
Pag-ibig, and such other labor laws, decrees or
regulations. For this purpose, the SERVICES
PROVIDER hereby holds the PRINCIPAL free
and harmless from any and all claims made by
any personnel assigned by the SERVICES
PROVIDER to the PRINCIPAL in whatever forum
filed…”

All told, respondent BRAVO is the employer of

complainant, thus complainant cannot fault respondent
ALPHA for his termination much less recover from the latter
his monetary claims.

While we commiserate to the plight of herein

complainant, respondent ALPHA believes that there is no relief
of any kind and in any form which complainant may obtain from
ALPHA SEMICONDUCTOR PHIL., CORPORATION.

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed of this Honorable Office that the complaint be dismissed for
utter lack of merit.

Other reliefs and remedies just and equitable under the premises
are likewise prayed for.

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 Angeles City for City of San Fernando, Pampanga, 21 March
2017.

EMPT LAW OFFICES

Counsel for the Respondents
001 Regal Street, Sto. Majestic,
Angeles City

By:

ATTY. CHIQUI LEANNE C. TUAZON

Roll of Attorneys No. 00001
IBP Lifetime Member No. 091597
PTR No. AC 011096
MCLE Compliance No. V-120396
issued on 10 January 2007

ATTY. PAULA MARIE G. PINEDA

Roll of Attorneys No. 111797
IBP Lifetime Member No. 0906
PTR No. AC 743
MCLE Compliance No. V-2602
issued on 10 January 2007

Copy furnished:

CHARLIE DELTA
Complainant RR No. 102790
San Francisco, Mabalacat, 25 March 2017
Pampanga Main Post Office, A.C.