Memorandum of Appeal NLRC - Claribel Tabudlong v Peak Manpower
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Republic Republic of the Philippines Department of Labor and Employment NATIONAL NATIONAL LABOR LA BOR RELATION COMMISSION National Capital Region Region Quezon City
CLARIBEL CORTES TABUDLONG, TABUDLONG, Complainant, Case No NCR!"#!"$%"&! NCR!"#!"$%"&! '(
-versus-
PEAK MANPOWER RESOURCES, ZAHER ABDULLAH KADOW and/or CRISTINA EDQUIBAN, Respondents. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
MEMORANDUM O) APPEAL COMES COMES NOW NOW, compl CLARIBEL CORTES CORTES omplai aina nant nt,, CLARIBEL TABUDLONG, assiste assisted d by the Public ublic "ttor "ttorney ney#s #s $%ce, $%ce, throug through h the undersigned counsel and unto this &onorable $%ce, by 'ay of appeal, most respectfully mo(es for this &onorable Commission for the setting! aside of the Decision issued by the &onorable Labor "rbiter )nding for respondents and humbly posits the follo'ing*
STA STATEMENT AND A ND NATURE O) THE CASE
+.
his his iis s orig origin inal ally ly a comp compla lain intt for for mal maltr trea eatm tmen ent, t, und under erpa paym ymen entt of
salaries-'ages, damages, attorney#s fee, and other relief. relief.
.
"fter fter a seri series es of of mand mandat ator ory y conf confer eren ence ces, s, no no amic amicab able le set settl tlem emen entt
'as reached bet'een Complainant and Respondents/ Respondents/ hence, they 'ere re0ui e0uirred to su subm bmit it thei theirr
respe espect cti( i(e e
posi positi tion on
pape paperrs.
"fter ter
the the
submission of their position papers and appropriate a ppropriate replies replies thereto, the case 'as submitted for resolution. 1.
$n + $ct $ctob ober er 2+ 2+1, 1, a DEC DEC34 343$ 3$N N 'as 'as iss issue ued d by &ono &onora rabl ble e Labo Laborr
"rbiter Elias &. 4alinas, in fa(or of Respondents!"ppellee and against Complainant!"ppellant, dismissing the case for lac5 of merit. " copy of the decision is hereto attached as *ANNE+ A . 1
TIMELINESS O) THE APPEAL
6.
Comp Compla lain inan ant! t!"p "ppe pell llan antt recei ecei(e (ed d the the abo( abo(e! e!me ment ntio ione ned d deci decisi sion on
on +7 December 2+1. Pursuant to the 2++ NLRC Rules of Procedure, complainant!appellant has ten 8+29 days from receipt of the decision 'ithin 'hich to )le this appeal. Counting ten 8+29 days from said date, and considering that the last day falls on a 'ee5end-holiday, the last day of )ling a memorandum of appeal is :anuary 2+6. &ence, the )ling of this memorandum is 'ithin the reglementary period to )le an appeal.
;.
Com Complai plaina nant nt!!"ppel ppelllant ant is eempt empt from from payi paying the appe appeal fees fees
being a client of the Public "ttorney#s "ttorney#s $%ce and pursuant to R.". hamiz ?uzyath, 4audi "rabia the net day, 'here she 'as to assume her duties as a domestic helper - household ser(ice 'or5er under the employ of Respondent >ado' and his family. fa mily. @.
Dur During her her emplo ployme yment, nt, Com Complai plaina nant nt faith aithfu fullly and and dil diligent gently ly
performed
her
duties
as
a
domestic
helper
despite
se( se(eral
maltr maltreat eatme ments nts commi committe tted d by her employ employer. er. Apon Apon arri arri(in (ing g at 4audi, 4audi, ho'e(er, she 'as made to 'or5 on!call day in and day out 'ithout regard to her rest periods. 3nstead of ta5ing care of t'o children, she 'as surprised that she had to ta5e care of )(e 8;9 children and all of the household chores. 4he 'as the only household 'or5er and had to do all the household 'or5 and ta5e care of all >ado'#s children, a 'or5!load appropriate for three persons. 4he 'as ne(er reimbursed of her her epen pense ses s in proc procur urin ing g her her docu docume ment nts s as agr agreed eed upon upon in the the Philippines and against representations representations of Respondents that she 'ill be treated humanely 'hile under >ado'#s employ. 2
7.
$fte $ften n time times, s, >ad >ado' o' and and his his 'if 'ife e 'oul 'ould d malt maltrreat eat Comp Compla lain inan antt by
slapping or pinching her 'hene(er she 'ould commit a simple mista5e or for tri(ial matters such as 'hen household supplies run out. 4he 'as only only allo allo'e 'ed d to eat eat t'ic t'ice e e(er e(eryd yday ay.. Cont Contra rary ry to her her empl employ oyme ment nt contract, Complainant 'as not gi(en any rest day or (acation lea(e, e(en during times that she 'as sic5. 3n fact, she 'as mostly 5ept under loc5 loc5 and and 5ey and and 'as 'as not not allo allo'e 'ed d to free freely ly lea( lea(e e the the hous house e or communicate 'ith the Philippine Embassy or her relati(es. 4he can only communicate through messages relayed to Bilipino neighbors and a cellphone 'hich she secretly 5ept. ado' that she 'anted to go bac5 to the Philippines and terminate her contract on ?arch +, 2++, and also on "pril 6, 2++ pursuant to the one!mo one!month nth notice notice in her emplo employm yment ent contra contract. ct. his his 'as ho'e(e ho'e(err reected by >ado' and she 'as not allo'ed to lea(e. &er passport and tra(el documents 'ere ta5en from her and 'as not gi(en to her until the epiration of her contract. ++.
Complainant tried
to see5
help by secretly sending
tet
messages to Respondent Pea5 ?anpo'er but said pleas only fell on deaf ears. 4he tried to as5 help from the Philippine Embassy, $", and other agencies through through messages messages relayed relayed to her husband, but no one helped her. $n :une or :uly 2++, her husband sent electronic mail letters narrating her situation in 4audi "rabia, based on tet messages 'hi 'hich Com Complai plaina nant nt sent sent to her her husb husban and, d, and and see5 see5iing hel help to 'home( 'home(er er could could read read her letter letter.. his his letter letter 'as transm transmitt itted ed by her husband husband to diFer diFerent ent go(er go(ernme nment nt agenci agencies es and politi politicia cians ns but her eForts did not prosper. + +.. +
Beeli eeling ng helpl helples ess, s, Compl Complai aina nant nt lost lost hope hope in comi coming ng bac5 bac5 to the the
Philippines anytime soon. o sur(i(e, she bore the burden of her 'or5 1
“Annex F and F-1” of Complainant’s Position Paper.
3
and bad treatment she 'as recei(ing from her employers, as 'ell as the lac5 of bene)ts and salary. 4he 'aited until the epiration of her contract, or t'o long years. ecause of the maltreatment she recei(ed from her employer#s, Complianant suFered physically, mental anguish and fright, numerous sleepless nights, aniety and 'ounded feelings. 4he 4he 'as 'as alon alone e and helple helpless ss in a for foreign eign land land and a'ay from from any assistance from our country. 4he had to bear her situation for the t'o! year duration of her contract. +1.. +1
4ome 4ometi time me of Dece Decemb mber er 2+ 2+,, 'hen 'hen Compl Complai ainan nant# t#s s empl employ oyme ment nt
'as about to epire, she informed >ado' that she 'ould no longer rene' her contract and refused the oFer of the latter to rene' her contract under a higher salary. his infuriated >ado' and his 'ife and she 'as again scolded and slapped. +6.
$n Bebruary 2+1, Complainant 'as allo'ed to go home
because of the epiration epiration of her contract. 4he arri(ed in the Philippines on Bebrua bruarry +, 2+1. Apon Apon arri arri( (al, al, Com Complai plaina nant nt 'ent ent to the the Commission on Bilipino $(erseas 8CB$9 'ho in turn referred her to the P$E" to )le a complaint. E(entually, she 'as also referred to the NLRC for )ling of a labor case pursuant to the ?igrant or5er#s or5er#s "ct.
GROUNDS )OR THE APPEAL
W-. W-. d0e d0e res1 res1e2 e2., ., .e .e Hono Honora ra34 34e e La3o La3or r Ar3Ar3-.e .er r 2o552o55-..e ..ed d 6ra7e 6ra7e a30se a30se o8 d-s2re d-s2re..-on on and ser-o0 ser-o0s s erro errors rs -n 4a9 4a9 and and -n 8a2. 8a2. 9en 9en e d-s5 d-s5-s -sse sed d .e .e 2o514a-n. on .e 6ro0nd .a. Co514a-nan. 8a-4ed .o a..a2 a..a2 e7-den e7-den2e 2e o8 0nder1 0nder1a: a:5en 5en.. and 8or a44e6e a44e6ed d 8a-40r 8a-40re e .o re1or. re1or. er 9or;-n 9or;-n6 6 2ond2ond-.-o .-ons ns 9-. 9-. .e 1ro1er 6o7ern5en. a6en2: ARGUMENTS AND DISCUSSIONS
I. The
Honorable
Labor
Arbiter
gravely
erred
when
he
dismissed the complaint because she “failed to present any proof of the alleged alleged underpayment, underpayment, such as her paysli payslips.” ps.”
+;.. +;
3t is most most resp respect ectful fully ly submi submitte tted d that that the &ono &onorab rable le Labor Labor "rbit "rbiter er
erred in dismissing the complaint because of failure of complainant to 4
submit payslips or proofs of underpayment. No payslip 'as e(er issued by Respondent >ado' and it 'ould be impossible for Complainant to produce said document because it 'as ne(er issued in the )rst place. Complainant should not be faulted for her employer#s failure to issue paysli payslips. ps. $ther $ther'is 'ise, e, 'e 'ould 'ould be left left in a situat situation ion 'her 'here foreig foreign n employ employers ers 'ould 'ould be absol( absol(ed ed from from paying paying the ust salari salaries es of our 'or5ers 'or5ers simply by not issuing payslips.
+=.. +=
$n the the othe otherr hand, hand, it it is sett settled led urisp urisprud rudenc ence e that that it is incu incumbe mbent nt
upon upon the the empl employ oyer er to pro( pro(e e paym paymen entt of ust ust comp compen ensa sati tion on and and bene)ts because, as most often than not, employers ha(e the control and and cust custod ody y of all all the the docu docume ment nts s pert pertai aini ning ng to thei theirr 'or5 'or5er er#s #s employment. +@.
3n the case of Saberola v. Suarez, et al al.., the 4upreme Court held
that that it is incu incumb mben entt upon upon the the empl employ oyer er to pro( pro(e e paym paymen entt of his his employee#s salary and bene)ts. 3n said decision, the Court ruled that* GAs e514o:er, .e 1e.-.-oner as .e 30rden o8 1ro7-n6 .a. .e ra.e o8 1a: 6-7en .o .e res1onden.s -s -n a22ordan2e 9-. .e 5-n-505 ado' ado' and and that that 2
G.R. No. 1122!" #$l% 14" 2&&'.
Respondent Pea5 ?anpo'er 'as only used to process her deployment abroad. 3f complainant 'as paid her full salary, it 'ould ha(e been easy for Respondent Pea5 ?anpo'er to as5 proof of payment from Respondent >ado' and it 'ould be in a better position to as5 for said docume documents nts becaus because e it assume assumed d respons esponsibi ibilit lity y 'hen 'hen it agreed agreed to be >ado'#s representati(e in the Philippines. eing the representati(e of >ado >ado' ' in the the Ph Phil ilip ippi pine nes, s, it is the the duty duty of Respo espond nden entt to 5eep eep in cont contac actt 'ith 'ith its its for foreign eign prin princi cipal pal and and 5eep eep impo import rtan antt docu docume ment nts s relati(e to 'or5ers they deploy.
II. II. The
Honorable
Labor
Arbiter
gravely
erred
when
it
dismissed dismissed the complain complaintt because because allegedl allegedly y omplain omplainant ant did not raise any complaint during her employ in !audi Arabia. +ado'. No document 'as presented to pro(e full payment. Not e(en a letter eplanation from the foreign principal. =.. =
ith ith the abo( abo(e e discu discuss ssio ion n and 'ith 'ith due due respe respect ct,, it is clea clearr that that
the &onorable Labor "rbiter#s application of the :ones ?anpo'er case is misplaced. he attending facts and circumstances 'hich prompted the 4upreme Court to dismiss the complaint of arit is not present in the the case case of Comp Compla lain inan antt abud abudlo long ng..
&enc &ence, e, the the doct doctri rine nes s
and and
urisprudence of said case cannot be applied applied to the case of abudlong. abudlong.
PRA@ER
&EREB$RE, based on the foregoing, C$?PL"3N"N respectfully pray that the DEC343$N dated + $ctober 2+1 be REJER4ED and 4E "43DE. Complainant further prays that a ne' Decision-Resolution be rendered in fa(or of Complainant and ordering payment of her money claims and for damages.
4uch other relief as may be deemed ust and e0uitable under the premises is li5e'ise prayed for.
Respectfully submitted.
?a5ati City for Quezon City, nd day of :anuary 2+6.
PUBLIC ATTORNE@?S O))ICE NCR!Ma;a.- D-s.r-2. O2e Counsel for the Complainant +=th Bloor, ?a5ati City &all Poblacion, Poblacion, ?a5ati City y** y
ATT@ DAID ULIAN G PUZON P034-2 A..orne: II Roll No. ;@126 '
Lifetime ?ember No. 2+22=6 ?CLE No. 3J!222;162 1.7.2+
ERI)ICATION / CERTI)ICATION TABUDLONG, of legal age, married, 3, CLARIBEL CORTES TABUDLONG, Bilipino, and presently residing at
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