Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

Regional Arbitration Branch No. VII
Cebu City

Laarni Gica, NORMAN C. TAB,

AND Raul CATE,
Complainants

-versus-

NLRC CASE NO. RAB VII-09-2361-14

BEBE Solon / Sisiw Tigso /

Wellness Massage Center,
Respondents.
x-------------------------------------------------- /

RESPONDENTS POSITION PAPER

COME NOW, the above Respondents,

Honorable Office most respectfully states:

PREFATORY STATEMENT

unto

this

There is no illegal dismissal involved in the instant case.

Instead of taking up course for massage therapy so that
herein complainants can secure a license from the
Department of Health ( DOH )to practice massage therapy ,
Complainants filed this baseless complaint in this Regional
Arbitration Branch.

None of the Complainants are terminated by the

respondents. As a matter of fact, Respondents told all the
Complainants during mediation that they are not dismissed
and are waiting for them to report to their work.

However, complainants still insisted that they will not

go back to their work and wanted to be paid. Respondents
realized that complainants had no intention to work but to
make money at the expense of respondents by making these
illegal demands.

Thus, the legality or illegality is not an issue in this case

because herein complainants are never dismissed but it was
them who did not report to their work and then demanded to
be paid of their illegal demand.

THE PARTIES

1. Respondent _______________, is of legal age, a resident of

BasakPardo Cebu City. She is doing business under the name
and ___________with business address at Bethsaida Bldg.,
SanciancoSt., Cebu City. A copy of the Business Registration
is attached as Annex 1.

2. Respondent ________ is wrongly impleaded in this case.

She was just a cashier of the establishment. She already
resigned and was not anymore connected with the
establishment prior to the filing of this case. Respondents
may be served with the pleadings, notices and other legal
process at the office of the undersigned at Rm. 303 Aniceta
Building Osmea Boulevard, Cebu City.

3. Complainants ________ are all of legal ages, Filipino

Citizens, a resident of Paradise II Kinasang-an Pardo Cebu
City and R. Palma St., Cebu City respectively. All of the
Complainants worked as massage therapist of the
respondents. They can be furnished with pleadings, notices,
and all other legal notices from this Honorable Office at their
stated address.

STATEMENT OF THE CASE

3. This is a Complaint for: (a) illegal dismissal (b)

underpayment (c) non-payment of overtime pay, holiday
pay, premium for holiday, rest day, night shift (d) 13 th month
pay (e) service incentive leave (f) allowances (g) separation
pay (h.) Retirement benefits.

STATEMENT OF THE FACTS

4. Respondents engage in massage wellness center. It had

offered a variety of relaxing and therapeutic massages in
high quality care, a variety of massage therapy techniques
to simply relieve stress. It has six therapist under its
employment.

5. All of the Complainants worked as massage therapists

with the respondents. They are just relatives of the
respondents. They are stay-in workers and given free meals.
They are paid on purely commission basis. All of the clients
of the respondentsare charged P150.00 per massage. The
P100 pesos goes to the respondents while the Fifty pesos
goes to the therapist who handled the client as his / her
commission. All of the commissions were given every end of
their duty.

6. Sometimes in the month of September 2014, respondents

are informed by their book keeper that all businesses
engaged in massage wellness are required to have their
massage therapists secured a licensed from the Department
of Health ( DOH ) to practice Massage Therapy starting
January 2015.This is a requisite for the renewal of business
permit; A copy of the Affidavit of _________, the book keeper
to attest such fact is attached as Annex 2;

7. To avoid this problem which they might encounter for the

renewal of the business permit, respondents through
___________, the second in command of the owner of Vianex
Wellness Massage Center called for a meeting of all the
massage therapists inside the premises of Vianex Massage
Wellness Center.

8. Mr. Dario told all the massage therapists to enrol the

course of massage therapy because they will encounter a
problem ofrenewing their business permit if their massage
therapist cannot secure a licensed from the Department of
Health ( DOH ) to practice massage therapy. He told all the
therapist to start securing the requirements for enrolling
massage therapy course.A copy of the Affidavit of Dario to
attest such fact is attached as Annex 3.

9. That after Complainants are told to take up massage

course, respondents noticed that they did not report to their
work. They are absent from their work without informing
respondents of their reason and whereabouts. Respondents
are surprised when they received summons from this
Honorable Arbitration Branch. Upon receipt of the summons,
they learned that complainants are filing this baseless
complaint.

10. During mediation respondents made it clear that they

are not dismissed. Respondents told Complainant to report
to their work because they are not dismissed. Despite of the
pleas that they will report to their work, complainants still
insisted that they will not go back to their work and wanted
to be paid. Respondents realized that complainants had no
intention to work but to make money at the expense of
respondents by making their illegal demands.

11. Complainants admits during mediation, that they are

compensated on purely commission basis, they are enjoying
free meals and lodging ( stay-in workers ) with the
respondents.

12. There was no amicable settlement reached during

mediation because Complainants insist not to report to their
work andto be paid of their demand. Hence, the filing of this
Position Paper;

ISSUES

I.

WHETHER OR NOT COMPLAINANTS ARE ILLEGALLY

DISMISSED FROM THEIR EMPLOYMENT.

II.

WHETHER OR NOT COMPLAINANTS ARE ENTITLED TO

THEIR MONEY CLAIMS.

ARGUMENTS / DISCUSSIONS

I.
COMPLAINANTS ARE NOT DISMISSED
FROM THEIR EMPLOYMENT

13. It must be emphasized that the instant case did not

involve dismissal from employment. Respondents made it
clear that they are not dismissed when mediation of this
case was conducted. Respondents are making a plea to the
herein complainants during mediation that they will come
back to their work because they are not dismissed.

14. Despite of the plea, Complainants refused and ignore it

telling this Honorable Office that they will not go back to
their employment anymore. Respondents realized that
complainants have no intention to work but make money by
filing of this baseless Complaint.
15. It is true that in cases of illegal dismissal, the employer
bears the burden of proof to prove that the termination was
for a valid or authorized cause However, before the
employer must bear the burden of proving that the dismissal

was legal, complainant must first establish by substantial

evidence the fact of his dismissal from service. Logically, if
there is no dismissal , then there can be no question as to
the legality or illegality thereof.
16. The foregoing is consistent with the ruling in Federico
M. Ledesma, Jr. vs. National Labor Relations Commission et
al., G. R. No. 174585, October 19 2007 in which it was held:
While this Court is not unmindful of the rule that in cases of
illegal dismissal, the employer bears the burden of proof to
prove that the termination was for a valid or authorized
cause in the case at bar, however, the facts and the
evidence did not establish a prima facie case that the
petitioner was dismissed from employment. Before the
private respondent must bear the burden of proving
that the dismissal was legal, petitioner must first
establish by substantial evidence the fact of his
dismissal from service. Logically, it there is no
dismissal, then there can be no question as to the
legality or illegality thereof. Emphasis supplied.
17. In Ligaya R. Machica, et al., vs. Roosevelt Services
Center, Inc., G.R. No. 168664, May 4, 2006 , we had
underscored that the burden of proving the allegations rest
upon the party alleging, to wit:
The rule is that one who alleges a fact has the
burden of proving it; thus, petitioners were burdened
to prove their allegation that respondents dismissed
them from their employment. It must be stressed that
the evidence to prove this fact must be clear, positive
and convincing. The rule that the employer bears the
burden of proof in illegal dismissal cases finds no application
here because the respondents deny having dismissed the
petitioners.
18. In RufinaPatis Factory vs. Alusitain, the Court took the
occasion to emphasize:

It is a basic rule in evidence, however, that the

burden of proof is on the part of the party who makes

the allegations eiincumbit probation, qui dicit, non

qui negat. If he claims a right granted by law, he must
prove her
claim by competent evidence, relying on
the strength of his evidence and not upon the
weakness of that of his opponent.

19. In Abad v. Roselle Cinema, ( G.R. No. 141371, March 24,

2006) we ruled that the substantial evidence proferred by
the employer that it had not terminated the employee
should not be ignored on the pretext that the employee
would not have filed the complaint for illegal dismissal if he
had not really been dismissed.

20. Respondents already made it clear during the mediation

of this case that Complainants are not dismissed from
service and told them to go back to their work because they
are not dismissed from their job. However, the pleas of the
respondents are just ignored by the Complainants telling
that they will not go back to their work anymore. Their
complaint that they are illegally dismissed is just their
illusions to wrest money from respondents.

21. Complainants have no intent to work for the respondent.

This is very clear when they refused to report to their work
despite demandto report to their work. Therefore,
Respondents cannot be charge for illegal dismissal because
there is no dismissal to speak of. Complainants walked away
of their post and file their illegal demand before this
Honorable Regional Arbitration Branch.

22. Fair evidentiary rule dictates that before employers are

burdened to prove that they did not commit illegal dismissal,
it is incumbent upon the employee to first establish the fact
of his or her dismissal. We are not unmindful of the rule in
labor cases that the employer has the burden of proving that

the termination was for a valid or authorized cause;

however, it is likewise incumbent upon the employees that
they should first establish by competent evidence, the fact
of their dismissal from employment. The one who alleges a
fact has the burden of proving it and the proof should be
clear, positive and convincing. ( Basay, et al., vs. Hacienda
Consolacion, G.R. No. 175532, April 29, 2010).
II.

COMPLAINANTS ARE NOT ENTITLED TO

THEIR MONEY CLAIMS.

on underpayment of wages

23. Respondents are not liable for underpayment of wages.

Complainants are not wage earners. They are compensated
on purely commission basis. They are not paid on the basis
of work hours rendered but on the number of clients that
they handled. Complainants received Fifty Pesos as
commission for every client that they served and the One
Hundred Pesos goes to Vianex Wellness Massage Center.
They even received more than the mandated minimum
wage.

on non-payment of overtime pay

24. Respondents are not liable for overtime pay.

Complainants are not working beyond the eight hours duty.
Their complaint did not even contain any specifics on when
they rendered their overtime. Complainants controlled their
time.
They are at worked only if they handle a client, if
there is none, they are not performing a task but taking a

rest waiting a client to come. Hence, this claim should be

denied.

onholiday pay, premium for holiday, rest day, night

shift

25. Respondents are not liable for holiday pay, premium for
holiday, rest day, and night shift. Under Rule IV, Book III Sec.
E of the Implementing Rules of the Labor Code,
employeeswho are compensated for purely commission
basis are not entitled to holidays with pay. Complainants are
purely compensated on commission basis the fact which
they admitted during mediation. Complainants in their
complaint also failed to show in their complaint with the
particularities and specifics as to when they are required to
report for work and did actually rendered work.

on 13th month pay

26. Complainants are not entitled for 13 th month pay. The

Rules and Regulations implementing PD 851 ( 13 th Month Pay
Law ) specifically states in Sec. 3 (e ) that this Decree shall
apply except on employers of those who are paid on purely
commission. By express provision of the law, it is very clear
that Complainants are not entitled on it. Thus, the claim for
13th month pay by the Complainant is clearly without any
legal basis.

on service incentive leave

27. In relation to Complainants claim for service incentive

leave, Article 95 of the Labor Code expressly states that this
provision shall not apply to those employed in the
establishments regularly employing less than ten employees.
Rule V, Sec. 1 (d), Implementing Rules and Regulations of the
Labor Code) also expressly states that service incentive
leave cannot be demanded by the employees who are
compensated on purely commission basis. Thus by express
provision of the law complainants are not entitled to service
incentive leave because they are working with the
respondents employing only six employees and / or they are
compensated on purely commission basis.

on allowances

28. The Complainants claims of allowances are without

factual and legal basis. Respondents never give them
allowance because it is not mandated by law but only given
in an instance of company practice due to the generosity of
the employer. Complainants cannot claim for allowance
unless they can cite for a specific law that obliged the
respondent to give them allowance.

on separation pay

29. Not having been illegally dismissed, Complainants are

not entitled to separation pay. As held in a long line of
jurisprudence, the grant of separation pay in lieu of
reinstatement is proper only when there is a finding of illegal
dismissal, which is wanting in this instant case. Since there is
no illegal dismissal in this instant case then, the remedy of
separation pay will have no basis in fact and in law.

on retirement pay

30.Complainants are not entitled to retirement pay. RA 7641

( Retirement Pay Law) provides that any employee maybe
retired upon reaching the retirement age established in the
CBA or other applicable employment contract. In the
absence of retirement plan or agreement an employee may
retire upon reaching the age of 60 years old but not beyond
65 which is the compulsory retirement age.

31. The above-cited law is not applicable to complainants.

They are too young to be retired. RA 7641 also expressly
states that retail, service and agricultural establishments or
operations employing not more than (10) employees or
workers are exempted from the coverage of this provision.
By reading the law itself it is very clear that respondents are
not covered not only that complainants are too young to be
retired but alsoRespondents are employing of only six
employees.
PRAYER

WHEREFORE,
foregoing
premises
considered,
respondents, unto this HonorableLabor Arbiter, most
respectfully pray, that upon due consideration of the facts
and evidence, the instance case be dismissed for lack of
merit.
Other reliefs consistent with law, justice, and equity are
likewise prayed for.

Done this 18thday

Philippines.

of

December

2014

at

Cebu

City

Atty. Isidro L. Sarona Jr.

(Counsel for the Respondents)
Rm 303 Aniceta Bldg., Osmena Blvd., Cebu
City
Tel No. 254-8455
PTR NO.4827563, 1-6-14; Cebu Province
IBP NO. 943669; 1-6-14; CEBU PROVINCE
MCLE COMPLIANCE: EXEMPT
EMAIL ADD. isidrojr.sarona@yahoo.com
Roll of Attorneys No. 61786

Copy furnished:
ArnelGicale, et al.,
Pls. Notify co-complainants
Paradise II, Kinasang-an Pardo, Cebu City

EXPLANATION OF SERVICE

A copy of this Position Paper was duly served on complainant

by registered mail in lieu of personal service due to distance,
time constraints and / or lack of personnel.

Atty. Isidro L. Sarona Jr.