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REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT
NATIONAL LABOR RELATIONS COMMISSION
NATIONAL CAPITAL REGION
QUEZON CITY

JESSELA AQUINO ROMERO, et. al.

Complainant,

- versus - NLRC-NCR Case No. NCR-03-05053-18

NICECOM / SHANTEL / TOP

LOADING / SHANUEL LOADING /
MARILOU ESPIRITU
Respondents,
x------------------------------------------x

POSITION PAPER

COMES NOW, complainant, thru the undersigned

counsel, and unto this Honorable Office, most respectfully
submits this Position Paper and hereby avers:

PREFATORY STATEMENT

In matters affecting labor rights and labor justice, we have

always adopted the liberal approach which favors the exercise
of labor rights and which is beneficial to labor as a means to
give full meaning and import to the constitutional mandate to
afford protection to labor1. This anchors on the fact that labor
are at a disadvantage position compared to the affluent
employers. This is necessary to tilt the imbalance between the
hand-to-mouth earner whose life is the very livelihood he has
and the rather fortunate employer.

NATURE OF THE CASE

1
(Industrial Management International Development Corp.
(INIMACO), vs. NLRC, and Enrique Sulit, et. al., G.R. No.
101723 May 11, 2000)
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This is a complaint for Non-Payment and Underpayment

of Salary/Wages, Non-Payment of Overtime Pay, Holiday Pay,
Holiday Premium, Rest Day Premium, Service Incentive Leave,
ECOLA, Moral and Exemplary Damages and Attorney’s Fees.

THE PARTIES

Complainant JESSELA AQUINO ROMERO, of legal age,

Filipino, is a resident of 165 P. Santos St. Malibay Pasay
City where she may be served with notices, pleadings, orders
and other processes of this Honorable Office.

Complainant GRACELYN RASDAS, of legal age, Filipino,

is a resident of #66 VP Cruz Street Lower Bicutan where she
may be served with notices, pleadings, orders and other
processes of this Honorable Office.

Respondent NICECOM/ SHANTEL/ TOP LOADING/

KONEX/ ICON LOADING/ SHANUEL LOADING (NICECOM
for brevity) is an entity organized in accordance with
Philippine laws, with address at 4th floor Erazo Building 4th –
7th Street Barangay 183, Villamor Pasay City where it may
be served with notices, pleadings, orders and other processes
of this Honorable Office.

Respondent MARILOU ESPIRITU is the

Owner/Manager/President of the Respondent Association, of
legal age, Filipino and is a resident of 3889 Marygold Street
Sunvalley Subdivision, Paranaque City where she may be
served with notices, pleadings, orders and other processes of
this Honorable Office.
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FACTS OF THE CASE

RE: JESSELA AQUINO ROMERO

Complainant was hired by respondents in March 2014 as a

sales lady in charge for the sale of load credits of different
network providers and other related products (eg. Sim cards,
mobile Wi-fi units).

Initially her basic salary/wage rate was at 250.00 php per

day which was increased to 300.00 php after one (1) year. A
copy of her pay slip is hereto attach and made integral part
thereof as ANNEX “A”.

From March 2014 to June 2016, she was asked to work for
twelve (12) hours a day, seven (7) days a week without
overtime pay.

Due to health concerns she left the company on February

25, 2018.

RE: GRACELYN A. RASDAS

Complainant was hired by respondents on January 26,

2013 as a sales lady in charge for the sale of load credits of
different network providers and other related products (eg. Sim
cards, mobile Wi-fi units).

Initially her basic salary/wage rate was at 250.00 php per

day which was increased to 300.00 php in July 2014. A copy
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of her pay slip is hereto attach and made integral part thereof
as ANNEX “B”.

From January 2013 to June 2016, she was asked to work

for twelve (12) hours a day, seven (7) days a week without
overtime pay.

Due to personal reasons she left the company on February

25, 2018.

COMMON STATEMENT OF FACTS

It was only on July 2016 when the company reduced their

working hours to eight (8) hours a day. Also, they were granted
one (1) day rest period every week. However, they are required
to report to work in case of shortage of manpower. The
employer also begins to pay the complainants overtime pay for
every work rendered in excess of eight (8) hours per day.

During the course of their employment they were also not

paid the following benefits: a) Holiday premium b) Holiday pay
c) Cost of Living Allowance d) Service Incentive Leave.

ISSUE/S

I
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WHETHER COMPLAINANTS ARE ENTITLED

TO ALL THEIR MONEY CLAIMS

II
WHETHER COMPLAINANTS ARE ENTITLED
TO MORAL AND EXEMPLARY DAMAGES AND
ATTORNEY’S FEES

DISCUSSIONS

I. COMPLAINANT IS LEGALLY ENTITLED TO ALL HIS

MONEY CLAIMS.

MINIMUM WAGE &

COST OF LIVING ALLOWANCE

Under Wage Order No. NCR-21, in relation to Republic

Act 6727, the complainants are entitled to receive the
minimum wage as well as the Cost of Living Allowance (COLA)
imposed to the employer by the aforementioned law. Said
Order provides that:

Section 1. NEW MINIMUM WAGES RATES.

Upon effectivity of this Wage Order, the new daily
minimum wage rates of covered workers in the
private sector in the National Capital Region shall
be as follows:

Sector/Industry BasicBasic New COLA New

Wage Wage Basic Wage
Increase Wage Rates
Non-Agriculture 481.00 21.00 502.00 10.00 512.00

xxx”
In the present case, the complainants were given below
the required minimum wage provided by law. Attached
herewith are the the copies of the pay slips issued by the
respondent company (Annex “A” and “B”). On the said pay
slips, the complainants are receiving only 300 php a day.
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Pursuant to Wage Order No. NCR-21, the complainants are

entitled to a minimum wage of 512 php as of September 2017.

NONPAYMENT OF OVERTIME PAY, HOLIDAY

PREMIUM, REST DAY PREMIUM.

Article 87 of the Labor Code states that:

Overtime work. Work may be performed

beyond eight (8) hours a day provided that the
employee is paid for the overtime work, an
additional compensation equivalent to his regular
wage plus at least twenty-five percent (25%) thereof.
Work performed beyond beyond eight hours on
holiday or rest day shall be paid additional
compensation equivalent to the rate of the first eight
hours on a holiday or rest day pus at the least thirty
percent (30%) thereof.

Herein complainants were not paid overtime pay. They

are required to work for twelve (12) hours a day for seven (7)
days a week. It was only in July 2016 wherein the respondents
started to pay their employees overtime work and reduced the
number of hours of work per day to eight (8) hours. Moreover,
they were also entitled to one (1) rest day per week. In the case
of Caltex Regular Employees at Mla. Office v Caltex Phils.,
Inc., “Service rendered in excess of and in addition to eight
hours on ordinary working days, which are the prescribed daily
work period, is overtime work.”2 Hence, as provided for by law,
they are therefore entitled to recover the same from the
respondents.

2
247 SCRA 398
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For Holiday premium and Rest day premium, the

complainants were never entitled to such benefits, they were
compensated their regular rate for worked furnished on said
days. Hence, as provided by law, they are also entitled to such
premiums.

WHEN MEAL PERIOD IS COMPENSIBLE

In the present case, the complainants were required to

render services during meal period in case of shortage of
manpower. As held in Pan Am v. Pan Am Ees Association,
“Where during a meal period, the laborers are required to stand
by for emergency work, or where the meal hour is not one of
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complete rest, such is considered overtime.” Therefore, the
complainants are entitled overtime pay for work performed
during their meal periods.

NONPAYMENT OF HOLIDAY PAY

Article 93 of the labor code states that:

c. Work performed on any special holiday shall be

paid an additional compensation of at least thirty
percent (30%) of the regular wage of the employee.
Section 4, Rule IV, Book III of the Omnibus Rules
Implementing the Labor Code, “Any employee who is
permitted to work on any regular holiday, not exceeding 8
hours, shall be paid at least 200% of his regular daily wage. If
the holiday work falls on the scheduled rest day of the

3
G.R. No. L-16275
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employee, he shall be entitled to an additional premium pay of

at least 30% of his regular rate of 200% based on his regular
wage rate.”

In the present case, the complainants were compensated

of their regular rate during work furnished on regular or
special holidays. Hence pursuant to the above law, they are
entitled to the unpaid holiday pay.

NONPAYMENT OF SERVICE INCENTIVE LEAVE

ARTICLE 95 of the Labor Code

(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.

XXX

As held in the case of Autobus Transport System Inc.

Vs Bautista “In the case of service incentive leave, the
employee may choose to either use his leave credits or
commute it to its monetary equivalent if not exhausted at the
end of the year. Furthermore, if the employee entitled to
service incentive leave does not use or commute the same, he
is entitled upon his resignation or separation from work to the
commutation of his accrued service incentive leave.” 4

Herein respondents neither gave or paid said benefits to

the complainants. Hence, the unused Service Incentive Leave

4
GR No. 156367.
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(SIL) must be converted to its money equivalent and be given

to the latter.

II. COMPLAINANTS ARE ENTITLED TO MORAL AND

EXEMPLARY DAMAGES AS WELL AS ATTORNEY’S FEES

Due to the deprivation of Complainant’s salary and

benefits, they suffered from mental anguish, besmirched
reputation, wounded feelings and sleepless nights. With their
salary from said employment as their only source of income to
provide a decent life for their family taken away without giving
them the benefit of defending themselves entitle them to an
award of moral damages. The act of the employer is clearly
contrary to law, morals, good customs and public policy.
As provided in the New Civil Code of the Philippines:

Art. 2217. Moral damages include physical

suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and
similar injury. Though incapable of pecuniary
computation, moral damages may be recovered
if they are the proximate result of the
defendant's wrongful act for omission.

Art. 2219. Moral damages may be recovered in

the following and analogous cases:

xxx

(10) Acts and actions referred to in Articles 21,

26, 27, 28, 29, 30, 32, 34, and 35.

xxx
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Furthermore:

Art. 21. Any person who willfully causes loss

or injury to another in a manner that is
contrary to morals, good customs or public
policy shall compensate the latter for damage.

Exemplary damages should also be awarded to herein

Complainant. As defined by the Civil Code of the Philippines:

Art. 2229. Exemplary or corrective damages

are imposed, by way of example or correction
for the public good, in addition to the moral,
temperate, liquidated or compensatory
damages.

Art. 2232. In contracts and quasi-contracts,

the court may award exemplary damages if the
defendant acted in a wanton, fraudulent,
reckless, oppressive, or malevolent manner.

The case of herein complainants is not uncommon to the

society. There are a lot of cases wherein employers whimsically
and capriciously deprived their employees the benefits entitled
to the latter. An award for exemplary damages therefore is
warranted in this case so as to serve as an example to other
employers not to commit the same acts to their employees who
loyally serve them.

The law grants attorney’s fees in Labor Cases, as

provided under the Labor Code:
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Art. 111. Attorney’s fees. – (a) In cases of

unlawful withholding of wages, the culpable
party may be assessed attorney’s fees
equivalent to ten percent of the amount of
wages recovered.

There is an unlawful withholding of lawful benefits on the

part of the employer when they arbitrarily refused to pay the
complainants of their remunerations granted to them by no
less than the Labor Code.

And, pursuant to Republic Act No. 9406 (An Act

Reorganizing and Strengthening the Public Attorney’s
Office), sec. 16 - d thereof provides that "The costs of the suit,
attorney’s fees and contingent fees imposed upon the
adversary of the PAO clients after a successful litigation shall
be deposited in the National Treasury as trust fund and shall
be disbursed for special allowances of authorized officials and
lawyers of the PAO."

WHEREFORE, it is most respectfully prayed unto this

Honorable Office that the judgment be rendered in favor of
complainants and an Order be issued:

Ordering Respondents jointly and severally liable to pay

Complainants all their monetary claims as well as their claim
for Moral and Exemplary Damages as well as Attorney’s Fees.

Other reliefs just and equitable are likewise prayed for.

City of Manila, May , 2018.

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JESSELA AQUINO ROMERO

Complainant

Assisted by: PUBLIC ATTORNEY’S OFFICE

MANILA CITY DISTRICT OFFICE
4/F William Godino Bldg.,
350 Arroceros St., Ermita, Manila

By:
PATRICK C. MONTEMAYOR
Public Attorney

JESUS LAUREL B. ILAGAN

Division Head/Public Attorney III
Roll No. 48286
IBP No. 1016352/2016
MCLE Compliance No. V-0006262

Copy furnished:
Republic of the Philippines )
City of Manila ) S.S.

VERIFICATION WITH CERTIFICATION OF

NON-FORUM SHOPPING

I, JESSELA AQUINO ROMERO Filipino, of legal age, single

and after having been duly sworn to before the law, do hereby
depose and state, that:

1. I am the COMPLAINANT in the above entitled case;

2. I have caused the preparation of the foregoing Position

Paper and the contents thereof are true and correct of our own
knowledge and belief;
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3. I have not commenced any other court action or

proceedings involving the same issues in the Supreme Court,
Court of Appeals, or any other tribunal or agency; to the best
of our knowledge, no such action or proceeding is pending in
the Supreme Court, Court of Appeals or any other tribunal or
agency; If I should learn thereafter that a similar action or
proceeding has been filed or is pending, I undertake to report
the same fact within five (5) days therefrom to the court or
agency wherein the original pleading and sworn certification
contemplated herein have been filed.

__________________________________
JESSELA AQUINO ROMERO
Affiant

SUBSCRIBED AND SWORN TO BEFORE me this ________ day

of _______ 2018.

Administering Officer