Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

MELIA QUEZA BASAN,

Complainant,

- versus - NLRC-RAB No. NRC Case

No.: NCR-02-03189-18

SUPERB SECURITY AND

INVESTIGATION AGENCY INC.,
/ KENNETH RIALPH

Respondents.
x------------------------x

POSITION PAPER
(for Complainant)

Complainant, by herself, unto this Honorable Office most

respectfully submits this Position Paper in the above-titled case upon
the following presentation:

THE PARTIES

Complainant MELIA QUEZA BASAN, (“complainant” for

brevity) is of legal age, Filipino, and residing at Blk-5 Lt 4 Country
Homes Bagong Silangan Quezon City, where she may be served
with notices and other processes of this Honorable Office.

Respondent SUPERB SECURITY AND INVESTIGATION

AGENCY INC. (“respondent agency” for brevity) is an agency duly
licensed and existing under and by virtue of the laws of the
Philippines, with office address at 816 Aurora Blvd., cor. P. Bernado
St., Brgy. Kaunlaran, Cubao, Quezon City, where it may be served
with notices and other processes of this Honorable Office.

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 Respondent KENNETH RIALPH (“respondent owner” for
brevity) is the owner/manager/president of SUPERB SECURITY
AND INVESTIGATION AGENCY INC. with principal address at 816
Aurora Blvd., cor. P. Bernado St., Brgy. Kaunlaran, Cubao, Quezon
City, where she may be served with judgment, decision, orders,
notices and other processes of this Honorable Office.

STATEMENT OF THE CASE

This is a Complaint for Non-Payment of Holiday Pay, Non-

Payment of Holiday Premium, Non-Payment of Retirement Benefits,
Non-Payment of Night Shift Differential, Moral Damages, Exemplary
Damages and for Attorney’s Fees.

STATEMENT OF THE FACTS

1. On April 1, 1998, Complainant was first hired by the

Respondent Agency as a lady guard and deployed to guard the
premises of Metropolitan Manila Development Authority
(MMDA) with continuous working schedule of twelve (12) hours
per day as shown in the Contract hereto attached as Annex “A”.
Unfortunately, her daily time records were currently in
possession and unlawfully withheld by the Respondent Agency.

2. The Complainant was receiving a salary of Seven Thousand

Eight Hundred (PHP 7,800.00) per month during her initial start
of work on April 1, 1998, and was adjusted only up to minimum
wage during previous prevailing years.

3. On 28 October 2016, the Complainant received a letter with a

subject “REPORT BY ENDORSEMENT”, hereto attached as
Annex “B”, requiring the Complainant to report on or before 15
November 2016 at 00900H.

4. On 30 October 2016, the Complainant complied with the

request to report to the office of the Respondent Agency.
During the meeting, the Complainant was asked of if what is the
letter all about. The Assistant Administrative Officer Regina V.
Panis asked the Complainant if she can cease with her
employment, but the Complainant stood her ground and
retorted that she is still willing and able to render work as a
seucrity guard until she has reached sixty (60) years of age.

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5. On April 3, 2017, while still performing her duties as security
guard for Respondent Agency, Complainant eventually reached
her retirement age after celebrating her 60th birthday on the
job. In fact, Complainant was continuously required to report
for work and render security guard duty up to 15 April 2017,
which is already beyond her age of retirement.

6. As can be shown in her periodical payslip hereto attached as

Annex “C” and its series, the Complainant has been receiving
only the minimum wage per day since her employment on 1
April 1998 up to her retirement on 15 April 2017 and her work
beyond eight hours are not being compensated. The latest
records of her payslips reveal that she has been receiving only
Four Hundred and Eighteen Pesos (PHP 418.00) per day.

7. Upon reaching sixty years of age on April 3, 2017, the

Complainant went to the Social Security System (SSS) to verify
her contributions and to her surprise her contribution has a
deficiency amounting to P8,000.00.

8. SSS advised the Complainant to pay her deficit contributions

for her to be able to process her retirement papers. She
immediately went to Respondent Agency’s Office to verify the
said deficiency. Michaella Tumanan (Ella), Finance Officer of
the agency, told the Complainant that the Respondent Agency
is remitting the SSS contributions in a quarterly manner. In
worry that the Complainant may be disqualified from SSS
Benefits, they have just agreed that such deficient contribution
be deducted to the Complainant’s cash bond amounting to
P22,800.00.

9. The Finance Office of the Respondent Agency advised

Complainant that she needs a Certification of Employment to
serve as supporting documents for the retirement benefits
under SSS law.

10. When the complainant processed her Certification of

Employment of the Respondent Agency, the agency said that
the Complainant must file a resignation notice first for the
Respondent Agency to issue the said document requested. At
that point in time, Complainant was made to believe that
Respondent Agency will not process and release her Certificate
of Employment unless she submits the pro forma resignation
notice asked of her. As a result, Complainant relied on the
false pretenses, deceitful conduct and fraudulent
representations of Respondent Agency, unmindful of their

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 underlying ulterior motive which is to deprive her of everything
she has worked hard for all these years.

11. She was actively and deliberately assisted by the admin in the
person of Galahad P. Lagahit in the preparation of the
Resignation Letter dated April 18, 2017. Mr. Galahad dictated
what she has to write in the resignation letter. She was made to
believe that she has to file a resignation letter instead of
retirement letter for the Respondent Agency to issue Certificate
of Employment.

12. Upon the preparation of the said forced resignation letter, the
Complainant proceeded to the Managing Director and informed
him of her intention to retire since she is already 60 years of
age and her body and health is not able to render the her
services tasked as Lady Guard because of the extraneous work
conditions of the job. Upon such notice, the Managing Director
only handed Five Thousand Pesos (PHP 5,000.000) to the
Complainant.

13. The Complainant went to the Finance Office to verify the back
pay salary and the Finance Officer computed such back pay
salary amounting to P25,000.00 of which the Finance Officer
explicitly mentioned that the pro-rated 13th Month pay was
already included in the said amount.

14. Complainant went back to the agency on December 18, 2017 to

contest the said pro-rated 13th month pay but the Finance
Officer denied her claim and told her that it was already
included in the P25,000.00, inclusive of the Cash Bond and
P5000.00 promised by the Managing Director.

15. Hence this complaint, the employee claimed that she was
unjustly deprived of her retirement benefits upon her reaching
the mandatory age of sixty (60) years old and the agency not
paying her SSS contribution. Through active misrepresentation,
she was fooled, coaxed and cajoled into believing that the pro
forma resignation notice being asked from her by the
Respondent Agency was a legal requirement before she could
receive her retirement benefits but it was a an palpable
machination on the part of the agency to avoid its obligation to
pay such retirement benefits as provided for by law.

STATEMENT OF THE ISSUES

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 I. WHETHER THE COMPLAINANT IS ENTITLED OF HER
RETIREMENT BENEFITS UNDER THE LABOR CODE?

II. WHETHER THE COMPLAINANT IS ENTITLED TO THE

UNDERPAYMENT OF WAGES SINCE HER
EMPLOYMENT FROM APRIL 1, 1998 UPTO APRIL 15
2017.

III. WHETHER THE COMPLAINANT IS ENTITLED TO THE

UNPAID HOLIDAY PAY, HOLIDAY PREMIUM, AND
NIGHT SHIFT DIFFERENTIAL.

IV. WHETHER COMPLAINANT IS ENTITLED TO THE

PAYMENT OF MORAL AND EXEMPLARY DAMAGES
AND ATTORNEY’S FEES

ARGUMENTS AND DISCUSSION

I. THE COMPLAINANT IS ENTITLED

TO THE PAYMENT OF HER
RETIREMENT BENEFITS UNDER THE
LABOR CODE

16. By the operation of law, the Complainant is clearly entitled to

her retirement benefits after having reached sixty (60) years of
age and being able to render nineteen (19) continuous years of
service with the Respondent Agency. Instead of granting her
retirement benefits as provided by law, she was deceived by
the Respondent Agency to file a resignation notice instead of
retirement letter for the Respondent Agency to issue a
Certificate of Employment which would be a supporting
document when she claimed her SSS benefits. All in all, she
was given only PHP 5,000.00 for the entire nineteen (19) years
of loyal service she has rendered for the security agency.

17. In the case of Brion vs South Philippine Union Mission of

Seventh Day Adventist Church, GR. No. 135136, May 19,
1999, the Supreme Court defined the term retirement as
follows:
“Retirement has been defined as a withdrawal from office,
public station, business, occupation, or public duty. It is the
result of a bilateral act of the parties, a voluntary agreement
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 between the employer and the employee whereby the latter,
after reaching a certain age, agrees and/or consents to sever
his employment with the former. In this connection, the
modern socio-economic climate has fostered the practice of
setting up pension and retirement plans for private employees,
initially through their voluntary adoption by employers, and
lately, established by legislation. Pension schemes, while
initially humanitarian in nature, now concomitantly serve to
secure loyalty and efficiency on the part of employees, and to
increase continuity of service and decrease the labor turnover
by giving to the employees some assurance of security as
they approach and reach the age at which earning ability and
earnings are materially impaired or at an end.”

18. Having reached her retirement age while still working for
respondents, the physical condition of Complainant is such that
she is not able to render the services tasked of a Lady Guard
with the same degree of ease, comfort and agility because of
the extraneous and taxing work conditions of the job.
Nonetheless, she tried to endure all the work conditions and
pressure just to reach her retirement age to enjoy her benefits.
To her dismay, when she retired, she was only offered Five
Thousand Pesos (PHP 5,000.00) as her retirement benefit –
way too low and clearly in violation of the Article 302 of the
Labor Code of the Philippines as amended by Republic Act No.
7641, otherwise known as Retirement Law.

19. According to Article 302 of the Labor Code of the Philippines,

as amended by Retirement Law:

“Art. 302[287] Retirement – Any employee may be retired

upon reaching the retirement age established in the collective
bargaining agreement or other applicable contract.

In case of retirement, the employee shall be entitled to receive

such retirement benefits as he may have earned under
existing laws and any collective bargaining agreement and
other agreements: Provided, however, That an employee’s
retirement benefits under any collective bargaining and other
agreements shall not be less than those provided herein.

In the absence of a retirement plan or agreement

providing for retirement benefits of employees in the
establishment, an employee upon reaching the age of
sixty (60) years or more, but not beyond sixty-five (65)
years which is hereby declared the compulsory retirement
age, who has served at least five (5) years in the said
establishment, may retire and shall be entitled to
retirement pay equivalent to at least one-half (1/2) month
salary for every year of service, a fraction of at least six
(6) months being considered as one whole year.
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 Unless the parties provide for broader inclusions, the term
one-half (1/2) month salary shall mean fifteen (15) days plus
one-twelfth (1/12) of the 13th month pay and the cash
equivalent of not more than five (5) days from service
incentive leaves.

An underground mining employee upon reaching the age of

fifty (50) years or more, but not beyond sixty (60) years which
is hereby declared the compulsory retirement age for
underground mine workers, who has served at least five (5)
years as underground mine worker, may retire and shall be
entitled to all the retirement benefits provided for in this
Article.”

The Complainant is born on April 3, 1957 as can be shown in

her birth certificate hereto attached as Annex “D”, and has
sufficiently reached her retirement at the age of 60 on April 3
2017. Despite of reaching the age of 60 on April 3, 2017, she
was still reporting for work up to 15 April 2017.

Likewise, the Complainant was employed by the Respondent

Agency from April 1, 1998 up to April 15, 2017, a total of 19
years of service; hence, she already met the requirement to
have served at least five (5) years of service in an
establishment. Therefore, the Complainant shall be entitled to
one-half (1/2) month of her salary for every year of service or a
total of 19 years.

The Respondent Agency also has no private retirement plan,

and thus, must comply with the minimum requirement of the
Labor Code in the payment of retirement pay.

20. The Complainant has all the intention and the reason to retire at
the age of 60. She endured all the pain of work as a lady guard
in her post just to reach her retirement age and to enjoy the rest
of her lives with the benefits as may be provided by law but the
Respondent Agency has deliberately deceived her and made
her to believe that she has to resign first to claim her benefits.

21. The complainant was made to believe that the resignation

notice dictated upon her by the manager of the Respondent
Agency, using undue influence and active misrepresentation,
was already good enough as her retirement letter. The
Respondent Agency also then took advantage of the
Complainant’s ignorance when they offered just Five Thousand
Pesos (PHP 5,000.00).

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II. THE COMPLAINANT IS ENTITLED
TO HER UNPAID HOLIDAY PAY,
HOLIDAY PREMIUMS, NIGHTSHIFT
DIFFERENTIALS

22. According to the service contract, hereto previously attached as

Annex “A”, executed between the Respondent Agency and
Metro Manila Development Authority, the guards deployed will
be on 12 hours per day duty, and indeed, the guards were
required to be on 12 hours per day duty.

23. As per the service agreement, the Complainant herein was

assigned to the MMDA office in Quezon Avenue cor. EDSA,
with a 12 hours duty per day. However, as can be gleaned from
the Complainant’s payslip hereto attached as Annex “C” and
its series, the Complainant was only receiving around PHP418
per day – which is way below to the minimum wage rate.

24. According to the Department Order 150-16, a Security Guard is

entitled to the following benefits:

7.5 Statutory Benefits – Security guards and other private security

personnel are entitled to not less than the following benefits
depending on the working hours, work shift and workdays and other
analogous conditions, which benefits should be included in the cost
distribution in the Service Agreement:
a. Basic salary for all actual workdays and for the twelve
(12) regular holidays (as holiday pay) which must not
be lower than the minimum wage rates described in
Subsection 7.3, to be computed by using the regular
factors recommended herein. Whenever work is
rendered on a regular holiday, an additional pay of one
hundred percent (100%) of the minimum wage rate
should be paid;

b. Allowance in addition to the basic salary, if prescribed by

the applicable Regional Wage Order;

c. Premium pay of thirty percent (30%) of the daily rate for

work on special days or on rest days, which is
increased to fifty percent (50%) whenever work is
performed coinding the rest days and special days;

d. Overtime pay for work rendered in excess of eight (8)

hours a day, equivalent to at least twenty-five percent
(25%) of the regular hourly rate on ordinary days and
thirty percent (30%) of the hourly rate on regular
holidays, special days, rest days;

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e. Night shift differential equivalent to ten percent (10%)
of the regular hourly rate for work rendered between
10:00pm and 6:00am of the following day;

f. Five (5) days service incentive leave for every year of

service which benefits can be availed of during days of
absence and, if not used, are convertible into its cash
equivalent. A proportionate leave benefit per month
may be deprived by dividing five (5) days by twelve (12)
months multiplied by the current daily rate;

g. Maternity leave as provided for under Republic Act No.

1161, as amended by Republic Act No. 8282, otherwise
known as the “Social Security Law,” for female security
guards and other private security personnel who are unable
to work due to childbirth or miscarriage, up to the first four
(4) deliveries or miscarriages;

h. Paternity leave of seven (7) days with full pay for male
security guards and other private security personnel under
Republic Act No. 8187, otherwise known as the “Paternity
Leave Act of 1996,” which shall be granted after the
delivery, without prejudice to an employer’s policy allowing
the employee to avail of the benefit before or during the
delivery. The paternity leave with pay is granted for first four
deliveries, including miscarriages, of the male employee’s
lawful wife with whom is cohabiting;

i. Parental leave of seven (7) days every year for solo parents
security guards and other private security personnel who
are left alone with responsibility of parenthood as defined
under Republic Act No. 8972, otherwise known as the “Solo
Parents’ Welfare Act of 2000”;

j. Leave for Victims of Violence Against Women and their

Children of ten (10) days for qualified victim-female security
guards and other private security personnel under Republic
Act No. 9262, otherwise known as “Anti-Violence Against
Women and Their Children Act of 2004”;

k. Special leave for Women of not more than two (2) months
with full pay based on her gross monthly compensation
following surgery caused by gynaecological disorders,
under Republic Act No. 9710, otherwise known as “The
Magna Carta of Women”;

l. 13th month pay which is one-twelfth (1/12) of the total basic

salary earned within a calendar year;

m. Separation Pay if the termination of employment is for

authorized cause as provided by law and as enumerated
below:

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 1. One-half (1/2)-month pay per year of service, but
guaranteed to one (1) month pay if separation is due to:

i. Retrenchment or reduction of personnel effected by

management to prevent serious losses;
ii. Closure or cessation of operation of an establishment
not due to serious losses or financial reverses;
iii. Illness or disease not curable within a period of six
(6) months and continued employment is prohibited by
law or prejudicial to the employee’s health or that
his/her co-employees; or
iv. Lack of service assignment for continuous period of
six (6) months.

2. One (1) month pay per year of service if separation is

due to:

i. Installation of labor-saving device, such as

replacement of employees by equipment/machinery;
ii. Redundancy, as when the position has been found
to be surplusage or unnecessary in the operation of
the agency;
iii. Impossible reinstatement of the employee to
his/her former position or to substantially equivalent
position for reasons not attributable to the fault of the
employer, as when the reinstatement ordered by a
competent authority cannot be implemented due to
closure or cessation of operations of the
establishments/security service contractor, or the
position to which the employee is to be reinstated no
longer exists and there is no substantially equivalent
position to which he/she can be assigned;
iv. Lack of service assignment by reason of age.
n. Benefits under the Employees Compensation Program
pursuant to Presidential Decree 626;

o. PhilHealth benefits under Republic Act No. 7875, as

amended by Republic Act No. 9241;

p. Social Security benefits under Republic Act No. 1161, as

amended by Republic Act No. 8282;

q. Safe and healthful working conditions as provided in the

Occupational Safety and Health Standards;

r. Retirement pay granted under Republic Act No. 7641 to any

security guard and other private security personnel which
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 shall be billable monthly to the principal or client of the
SSC/PSA.
The fund shall be administered and maintained by a trust
company bank, investment house, pre-need company, or
corporation duly authorized perform trust function
exclusively for collective investment or re-investment of
certain money received in its capacity as trustee, or similar
arrangement as may be agreed upon in accordance with
law.
The SSC/PSA may establish a retirement plan for the
payment of the retirement benefits of its security guards or
other private security personnel. From this Retirement Trust
Fund (RTF) shall be created out of contributions from the
principal. The trust fund agreement shall be executed by
and between the SSC/PSA as trustor and a trust entity as
trustee in favour of security guards or other private security
personnel employed by the trustor. The trust entity as
trustee shall administer the retirement plan and manage the
trust fund in accordance with the retirement plan agreed
upon by the SSC/PSA and its security guards or other
private security personnel.
The SSC/PSA may also register with the Securities and
Exchange Commission (SEC), a non-stock Retirement
Fund Company (RFC) owned and managed by its members
who are officers, employees, security guards, or other
private security personnel. The RFC shall manage and
reinvest the retirement fund, and shall pay the retirement
benefits of its members upon his/her retirement.
As such, any payment for retirement benefits collected in
advance from the principal shall immediately be deposited
by the SSC/PSA or trustor to the trustee or retirement fund
company in favour of the security guard and other private
security personnel as benefit upon retirement; and
s. Other benefits granted by law, individual or collective
agreement, or company policy or practice.

25. The salary of PHP 418 for 12 hours per day would also clearly
show that it does not include any other benefits as provided by
law. Her payslips show that the Complainant was only receiving
basic salaries. Nowhere therein indicated that the Complainant
was receiving any Holiday Pay, Holiday Premiums, and
Nightshift differentials for the whole term of her nineteen (19)
years of service.

III. THE COMPLAINANT WAS BEING

UNDERPAID FOR HER NINETEEN
(19) YEARS OF SERVICE FOR ONLY
RECEIVING A MINIMUM WAGE FOR 8
11
HOURS WORK WHERE SHE WAS
SUFFERED TO WORK FOR 12
HOURS A DAY – THEREFORE
ENTITLED TO BACKPAY.

26. Based on the records, the Complainant was only receiving a

minimum wage of a standard 8 hours work where in fact the
Complainant was suffered to work 12 hours a day – which
obviously and maliciously below does not include the
compensation and overtime premium for the works beyond
eight hours. The Complainant was made to believe that the
minimum wage of around PHP 418 is already good for 12 hours
a day, where in reality and in law, the rate of PHP 418 a day is
good only for 8 hours. According to the Labor Code, and
Department Order 150-16, work may be performed beyond
eight hours a day provided that the employee is paid for the
overtime work, which consists of an additional compensation
equivalent to his regular wage plus at least 25% thereof.
Without doubt, the work beyond 8 hours of the Complainant is
not being compensated by the Respondent Agency.

27. Clearly, the Respondent Agency has taken advantage of the

ignorance of our hard-working security guards in paying them
way below to the compensation they deserve to receive. This
was also declared as unlawful under Article 303 the Labor
Code of the Philippines.

IV. COMPLAINANT IS ENTITLED TO

THE PAYMENT OF MORAL,
EXEMPLARY AND ATTORNEY’S
FEES

28. The right of the Complainant was seriously violated as a

consequence of delayed and the non-payment of his
salaries/wages. He was further subjected to inhumane, unjust
and oppressive treatment by Respondent Agency. For these
reasons, he is entitled to the payment of moral damages.

29. To deter others from committing the same inhumane, unjust

and oppressive acts such as those committed by the
respondents, respondents should be made to pay for
exemplary damages. Finally, complainant was constrained to
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 seek the services of counsel for the purpose of enforcing his
rights under the law. Hence respondents should likewise be
made liable to pay attorney’s fees in an amount of not less than
ten percent (10%) of the monetary award.

PRAYER

WHEREFORE, premises considered, complainant most

respectfully prays that this Honorable Office render a JUDGMENT in
his favor, thus:

1. Ordering that Complainant is entitled to her Retirement Benefits

for her nineteen (19) years of service;

2. Ordering respondents jointly and severally, to pay the

complainant the following:

2.1 The total amount of her Retirement Benefits for 19 years

of service in the SUPERB SECURITY ANG
INVESTIGATION AGENCY INC.,.

2.2. The total amount of the Complainants unpaid Holiday

Pay, Holiday Premium, Nightshift Differentials, Overtime
Pay, and Overtime Premiums for 19 years of actual and
continuous service.

2.3. The amount of at least P 50,000.00 as moral damages;

2.4. The amount of at least P 50,000.00 as exemplary

damages.

2.5. The amount equivalent to ten percent (10%) of his total

claims as attorney’s fees.

Other reliefs which are just and equitable under the

circumstances are likewise prayed for.

Pasig City for Quezon City. April 23, 2018

By:

MELIA QUEZA BASAN

Blk-5 Lot-4, Country Homes,
Bagong Silangan Quezon City NCR 1100
13
Copy furnished:

SUPERB SECURITY AND

INVESTIGATION AGENCY
816 Aurora Blvd. Corner Bernardo St.
Cubao Quezon City, NCR

14
REPUBLIC OF THE PHILIPPINES)
______________________________) S.S.

VERIFICATION/CERTIFICATION

I, MELIA QUEZA BASAN, of legal age, Filipino, and residing at Blk-5 Lot-4,
Country Homes, Bagong Silangan Quezon City, respectively, after being duly sworn in
accordance with law, do hereby depose and state that:

1. I am the Complainant in the above-captioned case and I have caused the

preparation of the above Position Paper. I have read and understood the above Position
Paper; the allegations contained therein being true and correct to my own personal
knowledge and/or based on the records at hand.

2. I have not commenced any other action or proceeding involving the same
issues as this case before the Supreme Court, the Court of Appeals or any other tribunal
or agency. To the best of my knowledge, no such action or proceeding is presently
pending with the Supreme Court, the Court of Appeals or any other tribunal or agency.

3. If I should hereinafter learn that a similar action or proceeding has been

filed or is pending before the Supreme Court, the Court of Appeals or any other tribunal
or agency, I hereby undertake to report that fact within five (5) days there from to the
court or agency wherein the original pleading and sworn certification has been filed.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ___ day of

______ in _______.

______________________________

MELIA QUEZA BASAN

SUBSCRIBED AND SWORN to before me this _____ day of ________ at

________________, affiant exhibiting to me competent document for identification:

ID No.: Date Issued:

________________ ________________

Doc. No. _____;

Page No. _____;
Book No._____;
Series of 2018.

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