REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

OFFICE OF THE LABOR ARBITER

4th FLOOR, BOOKMAN BUILDING BLDG

LUZVIMINDA ZELGA,

Complainant,

NLRC CASE NO. RAB-NCR 08-1223-12-P

- versus -

XYZ STEEL CORPORATION;

STEPHANIE UY

Respondents

x---------------------x

REPLY POSITION PAPER

FOR THE RESPONDENTS

Respondent, thru the undersigned counsel and to this Honorable

Commission most respectfully submits this reply position paper, and
states that:

1. Respondent specifically denies the allegation of the

Complainants’ Position Paper in paragraph 1 alleging that
she was offered to work as a Cook and Cleaner of XYZ Steel
Corporation where in fact she was merely granted the
privilege to operate as a concessionaire under a
Concessionaire agreement (See Annex A).

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 As defined under Black’s law dictionary, a concession is
“a contract in which one transfers some rights to an enterprise
which then engages in an activity contingent upon approval
and subject to the terms of the contract”.

Under the terms of the Concessionaire Agreement, the

Respondent grants the Complainant the non-exclusive right
to operate a food service concession within the premises of
XYZ Steel Corporation which can be terminated upon breach
of contract such as but not limited to non-compliance with the
present laws and regulation.

Having laid down so, a concession, like a license, is a

privilege, not a right granted to a concessionaire which may
be granted, suspended or revoked, subject to the terms and
conditions of the agreement.

Further, respondent firmly denies the allegation that

the Complainant is a bonafide employee of XYZ Steel
Corporation.

As defined under Republic Act No. 8282, Sec. 8(d), “An

Employee is any person who performs services for an employer
in which either or both mental and physical efforts are used
and who receives compensation for such services, where there
is an employer-employee relationship.”

In the case of Atok Big Wedge Company Inc., vs. Gison,

G.R. No. 169510, August 8, 2011, to be considered an
employee, one must have an employer-employee relationship.
The existence of such relationship is conditioned upon the
following requirements:

1. Selection and engagement of the employee;

2. Payment of Wages;

3. Power of Dismissal;

4. Employer’s power to control the employee’s

conduct with respect to the means and methods by which the
work is to be accomplished.

The requirements stated above must all be present to

consider the existence of employer-employee relationship
between the parties.

Applying these requirements to the Complainant, one of

the hallmarks of an employee-employer relationship is the

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 presence of control and supervision exerted by the employer
over the employee's work. In Luzviminda Zelga's case, the
level of control and supervision exercised by XYZ Steel
Corporation is notably limited. As a concessionaire, she is
responsible for her business decisions and the provision of
services, including the selection of her staff and payment of
their wages. Respondent does not dictate the minutiae of her
operations, affirming the autonomy integral to her
concessionaire status.

The contractual relationship was governed by the

concessionaire agreement embodied in the 2011 agreement
(See Annex 1)

Their contractual relationship was terminated by

reason of respondents' termination of the subject
concessionaire agreement, which was in accordance with the
provisions of the agreement in case of violation of its
terms and conditions.

Thus, considering the foregoing, the Complainant

cannot be classified as an employee of the Respondent because
of the lack of employer-employee relationship. Failing to
establish such a relationship, the allegations in the Complaint
are baseless, unmeritorious and should be dismissed outright.

2. Respondent specifically denies the allegation of the

Complainants’ Position Paper in paragraph 2 alleging that
she received a daily wage of P230 each day as provided in her
Payslip for more than 11 years as she was merely operating
as a concessionaire under the Concessionaire Agreement (See
Annex 1).

To reiterate our statement in paragraph 1, being a

concessionaire, she was granted the privilege to conduct her
own business activities within the premises. The respondent
had no control over the means and methods of the
performance of the work of the petitioner. No wages were paid
and agreed by the Company and the Complainant pursuant
to their Concessionaire Agreement. Hence, there is no
employee-employer relationship between the Company and
the Complainant. The payslip provided by the Complainant

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 are fabricated and fictitious, in order to sway the verdict of
the court.

Respondent further specifically denies the authenticity

of her Identification Card (“ID”) as annexed by the
complainant. In the case of Lopez vs. Bodega City, G.R. No.
155731, September 3, 2007, The Supreme Court held that: “
ID cards where the words “EMPLOYEE’S NAME” appear
printed therein do not prove employer-employee relationship
where said ID cards are issued for the purpose of enabling
certain “contractors,” such as singers and band performers, to
enter the premises of an establishment”. In Luzviminda
Zelga’s case, the ID issued to her was that of a concessionaire
and not of an employee. The ID was issued solely for the
purpose of her entrance to the establishment. As per records,
a copy of the true and authenticated Identification Card
issued to the Complainant is provided in Annex 2

3. The respondent specifically denies the allegation of the

Complainant’s Position Paper in paragraphs 3 and 4 alleging
that she was dismissed, much less, given the opportunity to
explain. There is no dismissal to speak of because there is no
employer-employee relationship established between the
complainant and the respondent, their relationship being
governed under the Concessionaire Agreement.

In the case of Lopez vs. Bodega City, the Supreme Court

held that a contract will be upheld as long as there is proof of
consent, subject matter and cause—it is generally obligatory
in whatever form it may have been entered into.

Under the Concessionaire Agreement, the privilege

granted upon the complainant is limited to the right to
operate a food service concession within the premises of XYZ
Steel Corporation, located at 103 Eulogio Amang Rodriguez
Avenue, Pasig City 1611.

Paragraph 5 of the said agreement provides that the

Concessionaire shall comply with all applicable laws,
regulations, and health and safety standards pertaining to
the operation of a food service concession.

Paragraph 8 of the Concessionaire Agreement provides

that “the non-breaching party reserves the right to terminate
the Contract should there be found a breach of the agreement
set forth herewith”.

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 In the present case, it was discovered that the
complainant violated paragraph 5 of the Concessionaire
Agreement leaving the respondent no recourse but to resort
to paragraph 8 of the said agreement by electing the right to
terminate the relationship enshrined under the
Concessionaire Agreement.

Further, the allegation that the complainant was not

accorded the opportunity must fail because the twin-notice
rule applies only on employees. Here, the law that governs the
relationship of the complainant and the respondent is the
Concessionaire Agreement.

Thus, compliance with the substantial and procedural

due process is immaterial for the violation of the terms and
conditions of the Concessionaire warrants the termination of
the contractual relationship. For these reasons, the
contention of the complainant does not hold water.

Ultimately, there being no employer-employee

relationship to speak of, it, therefore, follows that the
complainant is not entitled to any award of damages.

4. Finally, the Respondent raises the fact that the pleading is

unsigned by either the affiant or the counsel. Thus, such
should be treated as a mere scrap of paper.

Under the Rules of Court, it is counsel alone, by affixing

his signature, who can certify to these matters. Uy vs.
Maghari, A.C. NO. 10525, September 01, 2015 provides that
“A counsel's signature is such an integral part of a pleading
that failure to comply with this requirement reduces a
pleading to a mere scrap of paper totally bereft of legal effect.
Thus, faithful compliance with this requirement is not only a
matter of satisfying a duty to a court but is as much a matter
of fidelity to one's client. A deficiency in this respect can be
fatal to a client's cause.”

Rule 7, Sections 4 and 5 of the 1997 Rules of Civil

Procedure articulate the basic rules concerning the
verification of pleadings and their accompaniment by a
certification of non-forum shopping:

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 Section 4. Verification. - Except when otherwise specifically
required by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has

read the pleading and that the allegations therein are true
and correct of his knowledge and belief.

A pleading required to be verified which contains a

verification based on "information and belief," or upon
"knowledge, information and belief," or lacks a proper
verification, shall be treated as an unsigned pleading.

Complainant’s pleading clearly did not comply with the

requirements provided by our laws. Thus, such pleading
deserves scant consideration.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of the

Honorable Labor Arbiter that an order be issued to dismiss all other
claims made by the Complainant for lack of merit.

Respondent prays for such other just and equitable reliefs under
the premises.

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 MOST RESPECTFULLY SUBMITTED.

August 12, 2023, Pasig City.

Copy Furnished:

Allenson Grospe

ALLENSON GROSPE LAW OFFICES

RCBC Plaza, Makati Avenue, City of Mani

VERIFICATION

I, Stephanie Uy, of legal age, Filipino Citizen, and with address at 103
Eulogio Amang Rodriguez Avenue, Pasig City 1611, after having been
duly sworn in accordance with law, deposes and state:

1. That I am the respondent in this case;

2. That I have caused the preparation and filing of the foregoing

Reply Position Paper;

3. That I have read the allegations therein and the same are true and
correct of my own personal knowledge and/or based on authentic records
of this case.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my

signature this 12th day of August, 2023 at Pasig City.

___________________________

STEPHANIE UY

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SUBSCRIBED AND SWORN to before me, this 12th day of August, 2023,
at Pasig City, with affiant exhibiting to me her Competent Evidence of
Identity by way of her Passport ID to expire on March 31, 2029 issued at
Lipa, Batangas.

NOTARY PUBLIC

Doc. No. 45;

Page No. 30;

Book No. 2;

Series of 2023.

Atty. Ma. Dolores Adelaida M. Liong

NOTARY PUBLIC

BP No: 060628 01-24-2023

PTR No: 5213708 01-02-2023

Roll of Attys: 43441

MCLE COMP. No. VI (on process)

Unit 203 AZ Building, JP Rizal St.

119 Eulogio Amang Rodriguez Ave Extension, Pasig City 1611

AT CRUZ LAW OFFICE and NOTARY PUBLIC

adelaida.liong@gmail.com

+632-835-1453/ +639171178611