Memorandum of Appeal NLRC - Claribel Tabudlong v Peak Manpower

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

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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 eempt 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.". <62=. <62=.

STATEMENT O) )ACTS

=.

Respo espond nden entt >ado' >ado' hir hired Comp Compla lain inan antt throu through gh its its local local agen agency cy,,

Respondent Pea5 ?anpo'er, as a domestic helper for a period of t'o 89 years. $n December @, 2+2, Complainant left the Philippines and arri(ed at >hamiz ?uzyath, 4audi "rabia the net 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 he

in

in

he

do

d

in th





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. <.

Comp Compla lain inan antt 'as 'as onl only y pai paid d Eig Eight ht &und &undrred Riya Riyals ls 84R 84R 722 722.2 .229 29 per per

mont month h inst instea ead d of 4R +,;2 +,;22. 2.22 22,, cont contra rary ry to the the pro( pro(is isio ions ns of her her Employment Contract for the 'hole 6 months of her employment. +2.. +2

eca ecaus use e of the inhum inhuman ane e treat treatme ment nt Compl Complai aina nant nt 'as rece recei( i(in ing g

and numerous (iolations of her employment agreement, she informed >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 reected 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 epiration of her contract. ++.

Complainant tried

to see5

help by secretly sending

tet

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 tet 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. + +

B

ling ling helpl helpl

s, Compl Complai ai

nt los hope hope in

mi

bac5 bac5 to th





and bad treatment she 'as recei(ing from her employers, as 'ell as the lac5 of bene)ts and salary. 4he 'aited until the epiration 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, aniety 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 epire, 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 epiration epiration 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. 9en 9en 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.”





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 <=ed 3: .e 4a9 and that he paid thirteenth month pay, ser(ice incenti(e lea(e pay and other monetary claims. e ha(e consistently held that as a rule, one 'ho pleads paym paymen entt has has the the burd burden en of pro( pro(in ing g it. it. E7en 9en .e 14a-n.-> a44e6es non!1a:5en., s.-44 .e 6enera4 r04e -s .a. .e 30rden res.s on .e de8endan. .o 1ro7e 1a:5en., ra.er .an on .e 14a-n.-> .o 1ro7e non! 1a:5en. H

In .e -ns.an. 2ase, .e 30rden o8 1ro7-n6 1a:5en. o8 .e 5one.ar: 24a-5s res.s on 1e.-.-oner, 3e-n6 .e e514o:er o8 res1onden.s T-s -s 3e2a0se .e 1er.-nen. 1ersonne4 <4es, 1a:ro44s, re2ords, re5-..an2es and o.er s-5-4ar do205en.s .a. 9o04d so9 .e 24a-5s a7e 3een 1a-d are no. -n .e 1ossess-on o8 .e 9or;er 30. -n .e 20s.od: and a3so40.e 2on.ro4 o8 .e e514o:er .I 8Emp 8Empha hasi sis s and and underscoring ours9 +7.

I. -s a4so a4so no.e no.e9o 9or. r.: : .a. .a. no9 no9er ere e -n Re Res1 s1on onde den. n.?s ?s

1os-.-on 1a1er and re14: d-d .e: den: 0nder1a:5en. 3n fact,





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. +<.. +<

Comp Compla lain inan antt coul could d not not )le )le a comp compla lain intt agai agains nstt her her empl employ oyer er

personally because she 'as loc5ed inside Respondent >ado'#s house. 4he 'as not allo'ed to lea(e the house by herself, much less )le a complaint 'ith the proper agency in 4audi "rabia. 4he 'as only able to commun communica icate te 'ith 'ith her husban husband d throug through h tet tet messag messages es by using using a cellphone she secretly 5ept. he &onorable Labor "rbiter gra(ely erred 'hen it did not consider the complaints made by Complainant through e!mail1 'ith the help of her husband on the ground solely that there 'as no proof that it 'as not recei(ed by its addressee. 3t is proof that Complainant as5ed for help and complained of her inhumane 'or5ing conditions conditions during during her employme employment nt 'ith Respondent Respondent >ado' >ado'. "t that time, it 'as the only 'ay she could communicate her grie(ances to the agencies of the go(ernment. go(ernment.

2.. 2

he he e!mai e!mails ls sent sent thr through ough her her husba husband nd are are proo prooff that she she as5 as5ed

for help 'ith diFerent go(ernment o%ces because of underpayment and inhu inhuma mane ne cond condit itio ions ns.. Comp Compla lain inan ant# t#s s failu failurre to )le )le a prop proper er complaint 'hile in 4audi "rabia 'as not of her o'n fault but because she simply could not, gi(en the harsh situation that she 'as bearing at that time.







III.The Honorable Labor Arbiter gravely erred when it applied the case of "#$%! I$T%&$ATI#$AL 'A$(#)%& !%&*I%!, I$.  vs. A+A#ILI-A&IT .

+.. +

he he :ones :ones ?anp ?anpo' o'er er case case,, cited cited abo( abo(e, e, is not not on all all fours fours 'ith 'ith

the the ins nsttant ant case case.. 3t has has

no appl appliicati ation 'ith Com Complai plaina nant nt and

Respondents# case. 3n the :ones ?anpo'er case, the 4upreme Court re(ersed the Court of "ppeal#s decision and eFecti(ely dismissed the complaint of arit because of certain facts, 'hich are not attendant in this case.

.. 

3n the the :ones :ones ?anp ?anpo' o'er er case case,, arit arit 'as 'as not not loc5 loc5ed in the the house house..

arit had all the opportunity to )le a complaint against her employer for her unpaid unpaid salary salary but she did not and she e(en continued continued 'or5ing for her employer for a considerable time despite underpayment. his is not so in Complainant abudlong#s case. 4he could not )le a complaint e(en if she 'anted to because her foreign employers pre(ented it by loc5ing her up. abudlong could not lea(e her employers because they con)sc con)scate ated d her passpo passport rt and tra(el tra(el docume documents nts.. 4he could could not ust ust lea(e her employer 'ithout her tra(el documents because she 'ill be arrested for running a'ay. 4he had no choice but to )nish her contract gi(en the intimidation and pre(ention pre(ention made by her foreign employers. 1.. 1

arit arit llef eftt to stay stay 'ith 'ith her her boyfr boyfrien iend d in 4aud 4audii "rabi "rabia. a. 3t 'as not so

in abudlong#s case as she had no'here to go ecept stay 'ith her foreign employer and )nish her contract.

6.. 6

ari aritt eten tende ded d her her cont contra ract ct 'ith 'ith her her for foreign eign empl employ oyer er for ten

more months despite allegations of underpayment. 3n the case at bar,





payment of salaries as their defense. 3n fact, Respondents# documents deny that they 5no' Respondent >ado'. No document 'as presented to pro(e full payment. Not e(en a letter eplanation 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.





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 <;6 ?al(ar 4treet, ?ola(e, Kamboanga Del 4ur, after a fter ha(ing been duly s'orn in accordance 'ith la', hereby depose and state, that* +. 3 am the complainant!a complainant!appell ppellant ant in the abo(e!enti abo(e!entitled tled case. case. . 3 ha(e caused caused the prepara preparation tion of this ?emor ?emorandum andum of "ppeal, "ppeal, read and understood the contents thereof, 'hich is true and cor correct ect of my o'n o'n 5no' 5no'lledge edge and and aut authent hentiicity ity of the documents/ 1. 3 ha(e not commenc commenced ed any action action or )led any claim claim in(ol(in in(ol(ing g the same issues in any court, tribunal or 0uasi!udicial agency and to the best of my 5no'ledge, no such action or claim is pending therein/ and 6. 4hould 4hould 3 there thereaf after ter lear learn that that the same or similar similar action action or claim has been )led or is pending, 3 'ould report such fact 'ithin )(e 8;9 days therefrom.

IN WITNESS WHEREO) , 3 ha(e hereunto a%ed my signature this nd day of :anuary, 2+6 at ?a5ati City.

CLARIBEL CORTES TABUDLONG TABUDLONG "%ant

SUBSCR SUBSCRIBE IBED D AND AND SWORN SWORN TO befo beforre me this this +s +stt day day of :anuary, 2+6 at a t ?a5ati City, a%ant ehibiting ehibiting to me her 444 3.D. No. 27!2@@@7;1!; 27!2@@@7;1!; issued by the 4ocial 4ecurity 4ystem.

ATT@ MARC EREMIAH R





Copy furnished* furnished* ATT@ )AUSTINO S ESTIOCO, R Counsel for Respondents Anit +@"7 Jictoria 4tation 3 @<1 ED4", arangay 4outh riangle, Quezon City ++21 Philippines

PEAK MANPOWER RESOURCES ZAHER ABDULLAH KADOW CRISTINA EDQUIBAN =7@ "rellano "(e., ?alate, ?anila

Memorandum of Appeal NLRC - Claribel Tabudlong v Peak Manpower

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