Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch VII
Cebu City

ADRIAN R. LIMSUAN,
Complainant,
NLRC RAB VII Case No. 03-0513-16
-versus-

PORT RESTAURANT,
Respondent.

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POSITION PAPER

RESPONDENT PORT RESTAURANT, by counsel and unto this Honorable

Labor Arbiter respectfully denies all the labor claims averred by Complainant against the
Respondent for the reason that the Complainant is NOT an employee of the Respondent,
but of Jernel Manpower Services, an independent contractor duly licensed with the
Department of Labor and Employment. Hence, there is no employee-employer
relationship between the Complainant and the Respondent. Attached is Jernel's DOLE
License No. ROVII-2014-01-006-TCFO dated January 30, 2014, and is valid until January
29, 2017, which forms Annex “A” and is an integral part of this Position Paper.

Further proof of the lack of employee-employer relationship between both parties is

the Jernel Manpower Services billing for period January 11, 2016 to January 25, 2016, which
is attached herein as Annex “B”. Item No. 14 of the said document shows Mr. Adrian
Limsuan, whose daily rates are reflected therein.

Finally, a Memorandum dated February 9, 2016 and addressed by Jernel Manpower

Services to the Complainant is attached as Annex “C” herein. The said document directs
the Complainant to take the day off on February 10, 2016, and to report to Jernel office to
sign documents. It would be noted that the Complainant refused to sign the said document.

The Supreme Court ruled in the case of Social Security System vs. Debbie Ubana
(G.R. No. 200114, August 24, 2015) that:

“For Article 217 of the Labor Code to apply, and in

order for the Labor Arbiter to acquire jurisdiction over a
dispute, there must be an employer-employee relation
between the parties thereto.

x x x It is well settled in law and jurisprudence that where no

employer-employee relationship exists between the parties and no
issue is involved which may be resolved by reference to the Labor
Code, other labor statutes or any collective bargaining agreement,
it is the Regional Trial Court that has jurisdiction, x x x The action
is within the realm of civil law hence jurisdiction over the case
 belongs to the regular courts. While the resolution of the issue
involves the application of labor laws, reference to the labor code
was only for the determination of the solidary liability of the
petitioner to the respondent where no employer-employee
relation exists. Article 217 of the Labor Code as amended vests
upon the labor arbiters exclusive original jurisdiction only over
the following:

1. Unfair labor practices;

2. Termination disputes;

3. If accompanied with a claim for reinstatement, those cases

that workers may file involving wages, rates of pay, hours of work
and other terms and conditions of employment;

4. Claims for actual, moral, exemplary and other forms of

damages arising from employer-employee relations;

5. Cases arising from any violation of Article 264 of this Code,

including questions involving legality of strikes and lockouts; and

6. Except claims for Employees Compensation, Social Security,

Medicare and maternity benefits, all other claims, arising from
employer- employee relations, including those of persons in
domestic or household service, involving an amount exceeding
five thousand pesos (P5,000.00) regardless of whether
accompanied with a claim for reinstatement.

In all these cases, an employer-employee relationship is

an indispensable jurisdictional requisite. Since there is no
employer-employee relationship between the parties herein,
then there is no labor dispute cognizable by the Labor
Arbiters or the NLRC.” (Emboldened for emphasis)

Evidently, the Honorable NLRC and this Honorable Labor Arbiter have no
jurisdiction over the instant controversy, hence, the instant case should be dismissed with
prejudice forthwith.

This Honorable Arbiter would likewise note that during the April 19, 2016
mandatory conference between both parties, the Complainant was informed of the lack of
employee-employer relationship between the former and the Respondent and was directed
to implead Jernel Manpower Services to correct the lack of jurisdiction. However, they
refused to do the same, on the mistaken opinion that doing so would place the instant
controversy within the purview of forum shopping. The Complainant's father, and later,
through a series of letters, the Complainant himself, had the audacity to accuse the previous
Labor Arbiter, the Hon. Maria Angelica Felizco-Padrid, of partiality. A copy of the NLRC
Order dated 29 April 2016 is attached as Annex “D” and made an integral part hereof.
Likewise, copies of the impertinent letters written and addressed to Hon. Padrid by the
Complainant is attached as Annexes “E” and “F” respectively.

As the direct employer of the Complainant, Jernel Manpower Services is an

indispensable party to the instant controversy, hence the same cannot continue without its
participation. To allow this case to continue without the participation of Jernel Manpower
Services would deprive the Respondent of its constitutional right to due process, as it
cannot pursue the proper remedies against the former within the same forum, and also
because the Honorable NLRC clearly has no jurisdiction over the controversy. However,
how could Jernel be impleaded when the Complainant himself refuses the entry of the said
company? Hence, dismissal of the case is proper.

PRAYER

WHEREFORE, foregoing premises considered, RESPONDENT PORT

SEAFOOD RESTAURANT hereby moves for the dismissal of the instant Complaint due
to lack of jurisdiction by the NLRC over the controversy. In the alternative, should this
Honorable Arbiter deny dismissal of the same, Respondent prays for the impleading of
Jernel Manpower Services as indispensable party to the instant case.

Other just and equitable reliefs are likewise prayed for.

RESPECTFULLY SUBMITTED.
June 22, 2016. Cebu City, Philippines.

MERCADO GEOTINA VIAGEDOR

BAUTISTA YBANEZ & PEREZ
2nd Floor C.A.O. Mercado Bldg.,
Osmena Blvd, Cebu City
Tel No. 236-9864
Email mgvblaw12@gmail.com

JAN RALPH Y. PEREZ

Attorney’s Roll No. 51472
PTR No. 875446 / January 11, 2016
IBP No. 1029040 / January 11, 2016
MCLE Compliance No. V-0005549 / 1.20.15 / Pasig City
CTC No. 2151840 / January 11, 2016 / Cebu City

COPY FURNISHED:

Mr. Adrian Limsuan

784 Calantas St., La Paloma Subd.,
Tisa, Cebu City.