Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City
_____DIVISION
LILIBETH PEREZ SALVADOR,
Complainant

-versus- NLRC-LAC No.__________________

NLRC-NCR CASE No. (L) 05-08990-19

GREATWORLD INTERNATIONAL
MANAGEMENT INC., NADER ABDULLAH
AL-HABIB ESTABLISHMENT INC. AND
VILMA D. ZAPARITA,
Respondents,
x------------------------------x

ANSWER
(TO THE COMPLAINANT’S MEMORANDDUM OF APPEAL)

COME NOW, Respondents by counsel before the Honorable Commission

most respectfully file their Answer to the complainant’s memorandum of appeal
dated 13 December 2019 and hereby allege:

TIMELINESS OF FILING

Complainant’s memorandum of appeal dated 13 December 2019 was

received by the undersigned counsel on 22 January 2020.

Paragraph C, Section 4, Rule VI of the NLRC Rules of Procedures states:

“The appellee may file with the Regional Arbtiration Branch or Regional Office
where the appeal was filed his/her answer or reply to appellant’s memoradnum of
appeal, not later than ten (10) calendar days from receipt thereof. Failure on the
part of the appellee who was properly furnished with a copy of the appeal to file
his/her answer within the said period may be construed as a waiver on his /her
part to file the same”.

Considering that undersigned counsel received his copy of the

Memorandum of Appeal on 22 January 2020, following the above cited rule, the
tenth day for filing of an answer falls on 01 February 2020 which is Saturday. In
view thereof the last and final date for the filing thereof falls on the next
suceeding business day, Monday 03 Febuary 2010.

The filing therefore of the instant Answer is within the period prescribed by
the NLRC Rules of Procedure.

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 COUNTER STATEMENT OF FACTS

1. Complainant has previous work experience abroad having been

deployed as Household Service Worker (HWS) in the Kingdom of Saudi Arabia on
July 5, 2014 for two (2) years contract by Gold and Green Manpower
Management and Development Services as Philippine Recruitment Agent (PRA)
and Al Geoud Recruitment Agency as Foreign Recruitment Agent (FRA). Copy of
Complainant OFW Information Sheet pertaining to her previous deployment as
HSW in the Kingdom of Saudi Arabia is attached as Annex “1”,
Respondents’Position Paper.

2. On July 13, 2017, complainant applied with Greatworld as Household

Service Worker (HWS) through duly accomplished application form indicating
therein, among others, that she has experience working abroad and willing to
finish two (2) years employment contract. She likewise accomplished an
application form for Abdullah and copies of the duly accomplished application
forms for Greatworld and Abdullah are attached as Annexes “2” and “3”,
respectively, respondents’ position paper.

3. During the interview conducted prior to her hiring, complainant assured

Greatworld that she can handle all the works of Household Service Worker due to
her previous work experience abroad. On the basis of such assurance, she was
offered the position in Kuwait for two (2) years contract to which she accordingly
agreed. Pursuant thereto, she was subjected to Pre-employment Medical
Examination (PEME) and underwent Pre-Departure Orientation Seminar (PDOS)
with the corresponding costs thereof for the account of Greatworld. Copies of the
PEME and Certificate of PDOS Attendance are attached as Annexes “4” and “5”,
respectively, respondents’ Position Paper.

3. Thereafter, complainant entered into an employment contract with

Abdullah as Foreign Recruitment Agent (FRA) and Greatworld as Philippine
Recruitment Agent (PRA), the salient terms and condition of which are as follows:

Employer Majed Dahashi Mubarak Almutairi

Position Household Service Worker
Duration Two (2) years
Monthly Salary US$400.00
Jobsite Alfarwaniya-Sabah, Kuwait

The employment contract was approved by POEA and verified by POLO

Kuwait and copy of which is attached as Annex “6”, Respondents’ Position Paper.

4. Greatworld in conjunction with Abdullah caused complainant to be

covered by compulsory insurance in compliance with the POEA directive requiring
Filipino Overseas Worker deployed abroad to be covered with insurance and copy
of the certificate of coverage is attached as Annex “7”, Respondents’ Position
Paper.

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 5. The employer Majed Dahashi Mubarak Almutairi (Majed for brevity) in
conjunction with Abdullah assumed the role as sponsors of the complainant in
filing for and in her behalf the required entry visa before State of Kuwait Ministry
of Interior, General Department of Immigration Affairs in order to allow her entry
as HSW in the country and an entry visa was accordingly issued. Copies of the
application for entry visa and entry visa are attached as Annexes “8” and “9”,
respectively, respondents’ Position Paper.

6. On 16 October 2017 complainant arrived in Kuwait to assume her

contracted position and upon arrival thereat she was met by Abdullah
representative who under Kuwait immigration rules is only authorized to fetch its
foreign recruited worker. The representative brought her to its Office where she
was later entrusted to Majed.

7. Under Kuwait Immigration Rules, complainant is only allowed work for

the sponsoring employer before she left the Philippines and any substitution of
employer shall be with prior approval of the Kuwait Immigration Office. Being
bound by the employment contract, the foreign employer cannot substitute it
with subsequent employment contract.

8. Complainant worked with Majed only for only four (4) months where she
was treated well by the Household members and paid her monthly salary
stipulated in the employment contract. However, after three (3) months of her
employment, she was always complaining of frequent Asthma bouts affecting the
performance of her duties which caused Majed to often bring her to a doctor for
treatment with the corresponding cost thereof for his account.

9. Complainant asthma affliction caused her later to request Majed to pre-

terminate her employment contract as she can no longer perform her work to
which Majed hesitantly agreed to release her from contractual commitment and
brought her to Abdullah Office where she reiterated her request for pre-
termination of the employment contract due to asthma.

10. While under Abdullah custody, complainant insisted to pre-terminate

her employment contract due to asthma despite explanation of the consequence
thereof. Sensing that complainant cannot be dissuaded to continue her
employment, Abdullah brought her to the Philippine Labor Office (POLO), Kuwait
to intervene in the complainant request for pre-termination where remain under
its custody.

11. While under the custody of POLO-OWWA, Kuwait, complainant never

filed any complaint against any abuses committed by her employer despite the
friendly atmosphere prevailing in the place and ample opportunity given as well
as her previous experience working abroad.

12. On April 4, 2018, complainant executed a “Sinumpaang Salaysay”, the

highlight of which reads as follows:

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 “Ako po ay dumating noong Oct. 16, 2017. Ako po ay
nagnanais nang umuwi sa kadahilanang ako po ay nagkasakit ng
Ashtma. Inihatid po ako ng amo ko sa Agency dahil pabalik-balik
ang aking sakit. Ako naman po ay ipinagamot nila at nakuha ng
aking Agency ang natitira kong sahod na 72 KD na ibinigay
naman po sa akin. Wala po akong hahabulin sa aking agency sa
Filipinas sa aking paguwi.”

The Sinumpaang Salaysay was signed by the complainant with Mr.

Eduardo E. Bellido, Welfare Officer as Witness and verified before Nestor P.
Burayag OIC, POLO Office and copy which is attached as Annex “10”, respondents’
Position Paper.

13. On the same date, Complainant filed a Request for Assistance (RFA)
before the POLO-OWWA, Kuwait which accordingly conducted a Single Entry
Approach (SENA). The during the SENA conference the parties reached a
Settlement Agreement with the following highlights:

“In connection with the above-entitled request, the parties fully

understand and voluntary agreed on the following:

1. HSW received the amount of KD Seventy Two (72) as full

settlement of her money claims against her
employer/Foreign & Philippine Recruitment Agencies;
2. In addition to HSW received things, mobile, passport,
ticket;
3. Parties further agreed that no retaliatory action shall be
charged against each other in relation with the HSW
employment as HSW in Kuwait;
4. Others: Normal Flight date.

The foregoing terms of agreement represent the

complete/settlement of the issues that are the subject of the
conciliated conference both parties agree to ensure voluntary
and faithful compliance with the above terms of agreement and
shall submit report of compliance to this Office within two (2)
weeks from signing by the parties to the agreement.

In case of non-compliance, the parties agree that the

request shall be referred to concerned authorities in the host
country and to POEA for appropriate action. The handling officer
in the POLO shall monitor update on the referred requests and
the same shall be reported to ILAB.

The Settlement Agreement was signed by the complainant, as

requesting party assisted by Eduardo E. Bellido, Welfare Office and representative

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of the FRA as responding party and approved by Nestor P. Burayag OIC, POLO and
copy of which is attached as Annex “11”, Respondents’ Position Paper.

14. Simultaneous to the Settlement Agreement, complainant likewise

executed a “Quitclaim and Release” with the following highlights:

“I, Lilibeth Perez Salvador of legal age, residing at Phase 8-B,

Block 16, Lot 15, Bagong Silang Caloocan City, for and in
consideration of the amount of Seventy Two (72) KD do hereby
release and discharge aforesaid company/corporation and its
officers, persons from any money claims by way of unpaid
wages, separation pay, overtime pay or otherwise, as may due
to me in connection with my past employment with the
aforementioned company/corporation, its officers/persons.

I am executing this Quitclaim and Release, freely and

voluntarily before this Office without any force or duress and as
part of the settlement agreement reached during the
conciliation –mediation process conducted in the POOLO-
OWWA.

The Quitclaim and Release was signed by the complainant and

subscribed before Eduardo E. Bellido, Welfare Office and Noted by Nestor P.
Burayag, OIC, POLO and copy of which is attached as Annex “12”, respondents’
Position Paper.

15. On April 10, 2018, complainant was repatriated to the Philippines with
the assistance of the POLO-OWWA, Kuwait using the air ticket given by FRA and
she arrived Manila the following day, April 11, 2018.

16. Thus, it came as great surprised to the respondents that complainant

filed the instant complaint on May 16, 2018 after her case has already been
closed and terminated through the execution of settlement agreement and
Quitclaim and Release during the SENA proceedings conducted by POLO-OWWA,
Kuwait.

THE PROCEEDING

Due to the failure of the parties to enter into amicable settlement during
the mandatory conciliation proceeding, the Honorable Labor Arbiter fortwith
issued an order for the simultaneous filing of position paper and other responsive
pleading required under the NLRC Rules of Procedure.

Complainant in her position paper alleged that respondents deployed her

on `05 October 2017 as Worker for Household Service’ in Kuwait for 24 months
with a monthly salary of US$400.00. She was only paid KD 120.00 for only 4
months. Complainant was brought to the deportation office by her employer after
working for only 4 months and she was repatriated after 2 months. From the
5
foregoing, complainant is of the contention that she was illegally dismissed from
employment entitlted to damages. (Please refer to the records of the case for
copy of the complainants’ Position Paper.

Repondents on other other hand, averred that complainant entered into an

employment contract with the Foreign Recruitment Agent (FRA) and Greatworld
as Local Recruitment Agent to work as Household Service Worker (SW) for the
emplpoyer Majed Dahashi Mabubarak Almutari in Kuwait for a duration of 2 years
with monthly salary of US$400.00. The employment was approved by the POEA
and POLO Kuwait. Complainant arrived Kuwait on 16 October 2017 and worked
for the employer for only 4 months. After 3 months into her employmnent, she
was complaining of frequent asthma bouts which affected the performance of her
duties causing her to request to preteminate her employment contract. The
employer released complainant to the FRA which in turn brought her to POLO
Kuwait. A settlment agreement and quitclaim and release were executed by the
complainant before the POLO. On 10 April 2018, complainant was repatriated to
the Philippines. (Please refer to the records of the case for copy of the
respondents’ position paper)

Both parties filed their respective reply maintaining their respective

positions in the case and the filing thereof marked closure of the proceeding and
rendered the case submitted for resolution. (Please refer to the records of the
case for copies of the parties’ respective reply)

LABOR ARBITER DECISION

The Honorable Branch was tasked to address two (2) issues for resolution
to wit: a) whether or not complainant was illegally terminated from employment;
and b) whether or not complainant is entitled to her entreated monetarary
claims. All the above issues were resolved against her through the following
dispositive portion:

“IN VIEW OF THE FOREGOING, judgment is hererby redered

FINDING that Complainant Lilibeth Perez Salvadaor was not illegally
dismissed from her employment. The instant amended complainant is
hereby Dismissed for lack of merit.

SO ORDERED”

(Please refer to the records of the case for copy of the Labor Arbiter
decision dated 27 September 2019)

GROUNDS FOR DISALLOWANCE

The foregoing considered, respondents are relying on the following

grounds in disallowance of the instant appeal and they are:

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 1. The complainant failed to discharge the burden of proving by substantial
evidence that she was illegally terminated from her employment; and

2. The Honorobable Labor Arbiter did not commit patent and palpable
errors in findings of facts and reversible errors in applying the law and
jurisprudence.

DISCUSSION/ARGUMENT

Considering that the issues for resolution are related to each other,
discussion thereof shall be made in single presentation but in the order of their
appearance.

With humility and candor, we respectfully submit that the complainant

failed to discharge the burden of proving by substantial evidence that she was
illegally terminated from her employment.

In ruling as such, the Honorable Labor Arbiter cited as prefatory statement

the case of Noblejas vs Italian Maritime Academy Phils. Inc., et. al. G. R. No.
207888, june 9, 2014 which the Supreme Court held:

“Fair evidentiary rule dictates that before emloyers are

burdened to prove that they did not commit illegal dismissal, it is
incumbent upon the employee to first establish by subsantial
evidence the fact of his her dismissal. The Court is not unmindful of
the rule in labor cases that the employer has the burden of proving
that the termination was for a valid or authorized cause. It is likewise
incumbent upon the emplyees, however, that they should first
establish by cometent evidence the fact of their dismissal from
employment. It is an age-old rule that the one who alleges as fact has
the burder of proving it and the proof should be clear, positive and
convincing. Mere allegation is not evidence.”

The Honorable Labor Arbiter continued to explain that complainant

attempted to discharge the foregoing burden by ratiocinating that there was a
breach of contract which resulted in her untimely repatriation. Yet, barring her
mere allegation, she has not presented competent, clear and convincing evidence
that her employer did breach her Employment Contract. The rule is well settled
that he who alleges a fact has the burden of proving it and mere allegation is not
evidence.

Complainant on appeal cited the Annex “8” dated 06 October 2019 and
Annex “4”, dated 04 December 2017 which from all indication merely showed
that complainant is fit to work and not suffering from any illness/sickness, hence,
she cannot have requested for pre-termination of employment contract due to
asthma. On the other hand, in proving that there was breach of contract,
complainant likewise cited on appeal Annex “6”, dated 25 September 2019 which

7
is a copy of the employment contract which according to her was breached that
ripened into illegal dismissal.

We respectfully submit that the adducement of the above documentary

evidences did not alter the finding that complainant failed to discharge the
burden of proving by substantial evidence that she was illegally termiated from
employment for the simple reason that said documents have no relevance to the
issue and did not prove anything. The issue at stake is whether or not
complainant requested for pre-termination of employment contract due to bouts
of asthma and hence the presentation of his previous PEME showing fitness to
work did not prove that indeed she requested for pre-termination. In like manner,
the presentation as evidence copy of the employment contract did not likewise
prove that complainant indeed made the request for pre-termination thereof.

On the issue of whether or not the Honorable Labor Arbiter committed

patent and palpable errors in findings of facts and reversible errors in appling the
law and jurisprudence, we respectfully submit that honorable Labor Arbiter
rendered his decision with equanimity and wisdom that the imputation of
commission of patent and palpable errors are unwarranted.

In finding that complainant was not illegally dismissed from employment,

the Honorable Labor Arbiter took cognizance of the documents proffered by
respondents proving against complainant’s claim of illegal dismissal. One of such
document is the “Sinumpaang Salaysay executed by complainant on April 4, 2018
and subsribed before the POLO, Kuwait. According to the Honorable Labor
Arbiter, complainant failed to deny the authenticity and due to execution of the
documents that the rules of court shall be applied in suppletory manner. Thus,
Section 22 Rule 130 of the Rules of Court which provides admission by silence
shall be applicable.

The Honorable Labor Arbiter likewise gave probative value to the

Settlement Agreement and Quit Claim and Release duly executed by the
Complainant before the POLO, Kuwait. According to the Honorable Labor Arbiter
the presumption of regular execution of the official acts of the POLO should be up
held in the absence of proof of irregularity in the execution thereof. Thus, the
settlement reached by the parties before the Single Entry Assitance Desk Officer
(SEADO) is deemed final and immediately executory and the parties should
comply faithfully and in good faith with the settlement agreement.

In conclusion, the Honorable Labor Arbiter opined that complainant failed

to discharge the burden of proving by substantial evidence that she was illegally
terminated from employtment. In labor cases, the quantum of proof necessary is
substantial evidence or that amount of relevant evidence as a reasonable mind
might accept as adequiate to support a conclusion,even If other mind is, equally
reasonable might conceivably opine otherwise.

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 CONCLUSION

The foregoing considered, it is respectfully submitted that the Honorable

Labor Arbiter did not commit patent and palpable errors in the findings of facts
and reversible errors in applying the law and jurisprudence and that complainant
failed to discharge the burden of proof in proving by substantial evidence that she
was illegally terminated from employment.

PRAYER

WHEREFORE, It is most respectfully prayed that complainant memorandum

of appeal is disregarded and the decision of the Labor Arbiter dated 27 September
2019 dismissing the case for lack of merit is affirmed in its entirety.

Other order and relief, just and equitable are likewise prayed for.

Queon City, 03 February 2020.

Atty. Gregorio V. de Lima, Jr.

Counsel for Respondents
No. 6 Colonel Martinez Street,
West Avenue, Quezon City
PTR No.9265388, Jan. 10, 2020, Q.C.
IBP No.02633, Lifetime, Q.C.
Attorney Roll No. 26674
MCLE VI No. 0024972 issued 12/04/19

Copy Furnished:

Santiago & Partners

Counsel for the Complainant
SMDC Sun Tower 2, Unit 3127
Espana Blvd. corner Mayon Ave.
Sta Teresa, Quezon City