Republic of the PhilippinesDepartment of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSIONQuezon City

AARON BARON CARREON,RAFFY GREG SANTAROSA Complainant,

-versus- NLRC CASE NO. 05-000000-13

THE CLUB DE MANILLE, and/or RICHIE DE LEON,

Respondent,x---------------------------------------------x

MEMORANDUM

COME NOW RESPONDENTS, through the undersigned counsel, unto this Honorable

Tribunal most respectfully submit and present this Memorandum in the above-titled case and

aver that:

PREFATORY STATEMENT

There is nothing essentially contradictory between a definite period of an employment

contract and the nature of the employee's duties set down in that contract as being "usually

necessary or desirable in the usual business or trade of the employer." The concept of the

employee's duties as being "usually necessary or desirable in the usual business or trade of the

employer" is not synonymous with or identical to employment with a fixed term. (Brent School

vs. Zamora (G.R. No. L-48494, 05 February 1990).

THE PARTIES

1. Complainant AARON BARON CARREON (Carreon for brevity) and RAFFY GREG

SANTAROSA (Santarosa for brevity) were casual employee waiters of the respondent.

2. Defendant THE CLUB DE MANILLE (the Club for brevity) is a non-stock, non-profit

corporation duly organized and existing under and by virtue of Philippines Laws, established for

the primary purpose of promoting the physical well-being of its members and foster social inter-

relationship and spirit of good fellowship and camaraderie among them; secondarily, to provide

and maintain the necessary facilities for pleasure, recreation and diversion, among other.

3. Individual respondent, RICHIE DE LEON (De Leon for brevity) is being sued in his

official capacity as the President of the Club.

I. STATEMENT OF FACTS

On May 19, 2011, Complainants applied for and were accepted to work for the Club as Extra

Waiters to perform banquet and wait services during special events, during periods of high

number of banquet bookings.

Upon their application they were informed by the Club that at said time, there was no

available positions for regular waiters. The only available positions are casual positions only for

extra waiters.

As extra waiters, it was their sole task to assist and help the regular waiters whenever the

number of events were to numerous for said regular waiters to handle alone.

They were also informed that in the event that the number of scheduled banquets was of

manageable number, they were not required to report for work.

Furthermore, they Mr. Carreon and Mr. Santarosa were informed that their contract will only

be up to and will expire on April 2013 and 08 February 2013 respectively.

Upon the lapse of their contract of employment, the complainant erroneously averred that

they were regular employees and were illegally dismissed.

II. ISSUES OF THE CASE

A.) WHETHER OR NOT THE COMPLAINANTS ARE REGULAR EMPLOYEES

OF THE RESPONDENTS?

B.) WHETHER OR NOT THE COMPLAINANTS WERE ILLEGALLY

DISMISSED?

C.) WHETHER OR NOT THE COMPLAINT SHOULD BE DISMISSED IN

FAVOR OF THE RESPPONDENTS

III. ARGUMENTS/ DISCUSSION

WHETHER OR NOT THE COMPLAINANTS ARE REGULAR EMPLOYEES OF

THE RESPONDENTS?

WHETHER OR NOT THE COMPLAINANTS WERE ILLEGALLY DISMISSED?

The Complainants argue that they are not casual employees but rather they are regular

employees.

Under our jurisprudence;

An employment shall be deemed regular if the employee performs activities

usually necessary or desirable in the usual business and trade of the employer OR

if the employee has rendered at least one (1) year of service, whether the service

be continuous or broken. Ferrochrome Phils. vs. NLRC, 236 SCRA 315 G.R.

105538 [5 September 1994]

The primary standard, therefore, of determining a regular employment is the

reasonable connection between the particular activity performed by the employee

in relation to the usual business or trade of the employer. The test is whether the

former is usually necessary or desirable in the usual business or trade of the

employer. The connection can be determined by considering the nature of the

work performed and its relation to the scheme of the particular business or trade

in its entirety. ALSO, if the employee has been performing the job for at least one

year, even if the performance is not continuous or merely intermittent, the law

deems the repeated and continuing need for its performance as sufficient evidence

of the necessity if not indispensability of that activity to the business. Hence, the

employment is also considered regular, but only with respect to such activity and

while such activity exists. (De Leon vs. NLRC [G.R. No. 70705, 21 August 1989)

Considering the above mentioned, it may seem that the complainants may have a point in

their argument that they are regular employees of the corporation since it is arguable that they are

performing work that is necessary and desirable to the business of the Respondent. However, this

is not so.

The Complainants are term employees. As term employees, they are neither regular or

casual employees. Furthermore, in term employment, the question of whether the employee is

performing work that is necessary and desirable to the business of the employer is irrelevant.

Under Brent School vs. Zamora;

The question immediately provoked by a reading of Article 319 is whether or not

a voluntary agreement on a fixed term or period would be valid where the

employee "has been engaged to perform activities which are usually necessary or

desirable in the usual business or trade of the employer." The definition seems a

non sequitur. From the premise that the duties of an employee entail "activities

which are usually necessary or desirable in the usual business or trade of the

employer the" conclusion does not necessarily follow that the employer and

employee should be forbidden to stipulate any period of time for the performance

of those activities. There is nothing essentially contradictory between a definite

period of an employment contract and the nature of the employee's duties set

down in that contract as being "usually necessary or desirable in the usual

business or trade of the employer." The concept of the employee's duties as being

"usually necessary or desirable in the usual business or trade of the employer" is

not synonymous with or identical to employment with a fixed term.

Such type of employment is valid as long as the fixed term employment was not

entered to circumvent tenurial rights of the employees. According to PNOC vs NLRC;

The two guidelines, by which fixed contracts of employments can be said NOT to circumvent

security of tenure, are either:

1. The fixed period of employment was KNOWINGLY AND VOLUNTARILY AGREED

UPON by the parties, without any force, duress or improper pressure being brought to

bear upon the employee and absent any other circumstances vitiating his consent; or:

2. It satisfactorily appears that the employer and employee DEALT WITH EACH OTHER

ON MORE OR LESS EQUAL TERMS with no moral dominance whatever being

exercised by the former on the latter. (PNOC vs. NLRC [G.R. No. 97747, 31 March

1993])

In the case at bar, it is clear that the Club complied with the aforesaid requirements.

First, during the application of the Complainants, there was no compulsion or any

vitiation of consent that occurred. The Complainants were apprised of the fact that that at then

said time, there was no available positions for regular waiters. The only available positions are

casual positions only for extra waiters. They were informed also that as extra waiters, it was their

sole task to assist and help the regular waiters whenever the number of events were to numerous

for said regular waiters to handle alone and that in the event that the number of scheduled

banquets was of manageable number, they were not required to report for work. Furthermore,

they Mr. Carreon and Mr. Santarosa were informed that their contract will only be up to and will

expire on April 2013 and 08 February 2013 respectively. This clearly shows that they entered

into such contract with full knowledge and intention. As a matter of fact, they do not even have

any allegations of vitiation of consent or bad faith on the part of the Club on their Complaint and

Position Paper.

Second, with regard to the requirement that it satisfactorily appears that the employer and

employee dealt with each other on more or less equal terms with no moral dominance whatever

being exercised by the former on the latter, it is presented that the Club complied with such

requirement. There are naturally inequalities in the position of employer and employee, however

in such case; such negotiations were made more or less in equal terms because there were no

compulsions involved. The Complainants were not compelled to take the job due to economic

factors. They were educated since they were college graduates and they were not economically

challenged. Therefore, they were not forced to accept such work.

The aforesaid requirements are a question of fact which must be alleged and proved. In

case at bar, there was no indication of force, duress, or improper pressure exerted on petitioners

when they signed the contracts. Further, there was no proof that respondents were regularly

engaged in hiring workers for work for a minimum period of five months to prevent the

regularization of their employees, there was no allegations of moral compulsion or vitiation of

consent in the contract therefor such fixed term of employment is deemed uncontroverted and

valid. As Brent School vs. Zamora states:

It should have no application to instances where a fixed period of employment

was agreed upon knowingly and voluntarily by the parties, without any force,

duress or improper pressure being brought to bear upon the employee and absent

any other circumstances vitiating his consent, or where it satisfactorily appears

that the employer and employee dealt with each other on more or less equal terms

with no moral dominance whatever being exercised by the former over the latter.

Unless thus limited in its purview, the law would be made to apply to purposes

other than those explicitly stated by its framers; it thus becomes pointless and

arbitrary, unjust in its effects and apt to lead to absurd and unintended

consequences. (Brent School vs. Zamora (G.R. No. L-48494, 05 February 1990])

Therefore, since it is submitted that the contract of fixed term employment between the

parties is valid. It is submitted that the Complainants were not dismissed, but rather their contact

just expire. Therefore there was no illegal dismissal. It is also clear that the Complainants failed

to allege and provide proof that the contract between the parties is invalid and as stated in

Machica vs. Roosevelt Center Inc.:

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.

As clearly stated, it is the burden of the Complainant to prove that they were illegally

dismissed. In the case at bar, the complainant merely provide allegations without any factual

proof that they were illegally dismissed. They failed to prove that their fixed term employment

contract is meant to contravene their tenurial rights and is in violation of the guidelines provided

for in PNOC vs. NLRC.

Lasly, as said by Justice Jose C. Mendoza; it is true the Constitution regards labor as "a

primary social economic force." But so does it declare that it "recognizes the indispensable role

of the private sector, encourages private enterprise, and provides incentives to needed

investment." The Constitution bids the State to "afford full protection to labor." But it is equally

true that "the law, in protecting the right's of the laborer, authorizes neither oppression nor self-

destruction of the employer." And it is oppression to compel the employer to continue in

employment one who is guilty or to force the employer to remain in operation when it is not

economically in his interest to do so. (Serrano vs. NLRC G.R. No. 117040, 27 January 2000)

PRAYER

WHEREFORE, premise considered, it respectfully prayed for that this Honorable

Tribunal that Complainants prayer to declare the complainant as illegally dismissed and to be

awarded damages be DENIED for having no cause of action and the complaint be DISMISSED

for being clearly unmeritorious.

Other just and equitable relief under the foregoing are likewise being prayed for.

Respectfully submitted.

Quezon City, Philippines. 26 October, 2013.

BEST LAW OFFICESCounsel for the Respondents

Number One Street,Paseo de Numero Uno, Makaty City

Mobile: +63917 1BEST(2378)Tel: +63 2 1111111Fax: +63 2 0111111

info@bestlaw.com.ph

By:

ATTY. LOVE LABIOSIBP Lifetime No. 000000; 1/15/2013, Makati City PTR No. 000000; 01/25/2013, Makati City

Roll of Attorney No. 000000 MCLE Compliance No. IV – 0000000

ATTY. PRECIOUS APRIL DIAMANTEIBP Lifetime No. 000000; 1/15/2013, Makati City PTR No. 000000; 01/25/2013, Makati City

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Copy Furnished:

AARON BARON CARREONABC apartment, Brgy. A, Quezon City

RAFFY GREG SANTAROSARG Towers, R Ville, Manila