Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. XI
Davao City

JEMUEL ODTOJAN, NLRC RAB(OFW) -XI-10-01145-18

Complainant,

-versus-

LOCAL AGENCY: AL RAFEIDAN FOR: ILLEGAL DISMISSAL

MANPOWER INTERNATIONAL WITH MONEY CLAIMS
CORP. AND ITS PRESIDENT,

FOREIGN PRINCIPAL
EMPLOYER: TURKEY SAIF
ALSHALAHI ALMETAIRY
MOTOR WORKSHOP AND ITS
OWNER,
Respondents.

X ---------------------------------------- X

POSITION PAPER
COMES NOW, Complainant, unto this Honorable Office, most respectfully
submit this Position Paper for consideration, as follows:

THE PARTIES

1. Complainant, JEMUEL M. ODTOJAN, of legal age, Filipino, may be

served with notices, orders, writs and processes of this Honorable Office at
the Office of Councilor Leah A. Librado-Yap, 2/F, Room 203, Sangguniang
Panlungsod Building, San Pedro Street, Davao City, Philippines.

2. Respondent, AL RAFEDAIN MANPOWER INTERNATIONAL CORP,

is a local recruitment company.
 3. Respondent, TURKEY SAIF ALSHALAHI ALMETAIRY MOTOR
WORKSHOP is a foreign company in Alkhobar Saudi Arabia and may be
served with notices, orders, writs and processes of this Honorable Office at
the office of the immediately mentioned Respondent. It is impleaded as one
of the Respondents for being the employer of Jemuel M. Odtojan

4. All parties may sue and be sued.

FACTS OF THE CASE

5. Complainant, JEMUEL M. ODTOJAN, was recruited by Respondent

Company Al Rafedain Manpower International Corp. to work in Alkhobar Saudi
Arabia under the company Turkey Saif Alshalahi Almetairy Motor Workshop as
Laborer on April 18, 2017. Complainant signed a two (2) year contract
commencing from April 18, 2017 to April 18, 2019. Hereto attached as Annex
“A” is the copy of Complainant’s copy of his payslip;

6. Before Complainant went to Saudi, Complainant’s recruitment agency expressed

to him before the immigration area that if Complainant were to be asked what
employment Complainant was recruited in, Complainant should answer as
“laborer” in Turkey Saif Alshalahi Almetairy Motor Workshop to which
Complainant complied as it was the job description in the contract Complainant
inked his signature thereto.

7. Upon arriving at Saudi, it was eventually made known to the Complainant that
he will be working in Tamara Beach Resort and not under Turkey Saif Alshalahi
Almetairy Motor Workshop, as agreed. Complainant also discovered that said
sudden and clandestine change of employer is a flagrant circumvention of the law
in Saudi.

8. Months have passed still Complainant was not issued an IQAMA or a resident
identification. IQAMA is an identification card required in Saudi to make a
person’s stay in in accordance with law. Furthermore, whenever Complainant ask
for said IQAMA from his employer, his employer would just promise him of an
uncertain date of issuance but such was remain unheeded.
9. On September 19, 2019, a raid was conducted in Tamara Beach resort. During
the said raid, the police authority found out that Complainant’s stay in Saudi was
illegal for having no IQAMA and other pertinent documents needed to prove that
his employment was through a legal process.

10. Complainant was brought to deportation office in Damman and was

incarcerated for two (2) weeks. After two (2) weeks, complainant was brought to
another deportation office in Riyadh, where the complainant was again detained for
another two (2) weeks.

11. Complainant had a rigid time eating because of the threats and pressure
directed to him by his co-detainees. Complainant also was not given clothes to
change and was forced to borrow from his co-detainees. Complainant’s belongings
was also withheld by the employer and will be given only after his release from
deportation office. This caused trauma, sleepless nights, mental anguish and
distress to the complainant.

13. On October 18, 2018, Complainant was sent back to Philippines by virtue of
the help of the government of the Philippines by issuing a travel document in lieu
of a passport which was valid for one way direct travel to the Philippines. Hereto
attached as Annex “B” is the copy of Complainant’s Travel Document.

14. When complainant was released from deportation office, Complainant had
nothing but the clothes he wore on the day he was detained. His documents were
also withheld by his employer.

15. The complainant wasted no time and filed appropriate action to seek outright
justice for herself. An illegal dismissal case against Respondents was thereafter
filed before the office of NLRC-Davao after efforts to settle the parties proved
futile.

ISSUE/S

I. WHETHER OR NOT RESPONDENTS VIOLATED THE TERMS AND

CONDITION OF THE EMPLOYMENT CONTRACT WITH
COMPLAINANT?

II. WHETHER OR NOT COMPLAINANT IS BARRED FROM

RECOVERING THE FULL SALARY AMOUNT PURSUANT TO A
TWO-YEAR EMPLOYMENT CONTRACT WITH RESPONDENTS?
 III. WHETHER OR NOT COMPLAINANT IS ENTITLED TO HER
OTHER MONETARY CLAIMS?

ARGUMENT AND DISCUSSIONS

I. Respondents Violated the Terms and Conditions of the Employment

Contract it Executed with Complainant.

1. Under the employment contract between Complainant and Respondents, it is

clearly stipulated that the Complainant was contracted to work for two (2)
years with only one specific direct employer, Turkey Saif Alshalahi
Almetairy Motor Workshop.

2. Here, Complainant was made to work under a different employer, Tamara

Beach Resort, when he arrived in Saudi.

3. Under the employment contract of the Complainant with Respondents, the

employer shall work as a “laborer.” Here, there was clear breach of the
above-mentioned obligation. The employment that was given to
Complainant was different from the agreement for he worked as a
“laundryman.”

4. Respondents, in turn, are negligent in making a follow-up update to all

of their OFWs they have successfully deployed which, by reason of their
lack of care and outright concern, unfortunately, led Complainant to
being transferred from one employer (or agency) to another.

5. On a final note, the Court in the case of SANTOSA B. DATUMAN VS FIRST

COSMOPOLITAN MANPOWER AND PROMOTION SERVICES, INC.,
G.R. NO. 156029, NOVEMBER 14, 2008 reminds local recruitment agencies
that it is their bounden duty to guarantee overseas workers that they are
being recruited for bona fide jobs with bona fide employers. Local
agencies should never allow themselves to be instruments of exploitation
or oppression of their compatriots at the hands of foreign employers.
Indeed, being the ones who profit most from the exodus of Filipino
workers to find greener pastures abroad, recruiters should be first to
 ensure the welfare of the very people that keep their industry alive.
(Emphasis supplied)

II. Complainant is Not Barred from Recovering his Full Salary Amount
Pursuant to The Two-year Employment Contract with Respondents.

6. Section 10 of Republic Act No. 8042, as amended by Republic Act No.

10022 specifically provides:

xxx

"The liability of the principal/employer and the

recruitment/placement agency for any and all claims under
this section shall be joint and several. This provision shall be
incorporated in the contract for overseas employment and shall
be a condition precedent for its approval. The performance bond
to be filed by the recruitment/placement agency, as provided by
law, shall be answerable for all money claims or damages that
may be awarded to the workers. If the recruitment/placement
agency is a juridical being, the corporate officers and directors
and partners as the case may be, shall themselves be jointly and
solidarily liable with the corporation or partnership for the
aforesaid claims and damages.

"Such liabilities shall continue during the entire period or

duration of the employment contract and shall not be affected by
any substitution, amendment or modification made locally or in a
foreign country of the said contract.”

xxx

"In case of termination of overseas employment without

just, valid or authorized cause as defined by law or contract, or
any unauthorized deductions from the migrant worker's salary,
the worker shall be entitled to the full reimbursement of his
placement fee and the deductions made with interest at
twelve percent (12%) per annum, plus his salaries for the
 unexpired portion of his employment contract.” (Emphasis
supplied)

xxx

7. Here, Complainant was dismissed through no fault of his as narrated under

the facts. Due to the combined actions of his direct employers’ abroad as
well as the negligence of herein Respondents in guarding the welfare of their
OFWs, Complainant was not able to finish the entire contract period.
Therefore, Complainant should be given the full reimbursement of her
placement fee plus her unpaid and unexpired salary.

III. Complainant is Entitled to His Other Monetary Claims.

8. There must be an order of reinstatement of employee when there is illegal

dismissal. However, it is no longer possible nor recommended since
Complainant had already been sent back to the Philippines. For this reason,
the complainant is entitled to separation pay as an alternative to
reinstatement.

9. Furthermore, the Supreme Court exhaustively discussed in the case of

Santos vs. NLRC, et al., G. R. No. 76721, September 21, 1978 that:

“As the term suggest, separation pay is the amount that an

employee receives at the time of his severance from the
service… xxx is designed to provide the wherewithal during
the period that he is looking for another employment… xxx The
grant of separation pay did not redress the injury that is
intended to be relieved by the remedy of backwages, that is, the
loss of earnings that would have accrued to the dismissed
employee during the period between dismissal and
reinstatement. Put a little differently, payment of backwages is
a form of relief that restores the income that was lost by reason
of unlawful dismissal; separation pay, in contrast, is oriented
towards the immediate future, the transitional period the
employee must undergo before locating a permanent job.”
 10. Furthermore, Respondents should be held for damages under Art. 32 of the
Civil Code of the Philippines, more specifically paragraph (6), which states:

Xxx (6) The right against deprivation of property without due

process.”

11. This is so because of the Respondents’ negligence and bad faith the
complainant’s contract was pre-terminated, in direct contravention of the
rights of the latter to procedural due process. The law considered
employment as property of a person.

12. In this regard that the damages shall be in the form of nominal damages for
the award is not for the purpose of penalizing the employer-respondent but
to vindicate or recognize employee-complainant’s right to security of tenure
which was violated by the employer-respondent.

13. In view of the foregoing complaint the complainant was compelled to

engage the services of herein counsel to protect his rights, he is entitled to
attorney’s fees in the amount of 10% of the total amount of the claims of
Complainant.

PRAYER

WHEREFORE, PREMISES CONSIDERED, it is most respectfully

prayed of this Honorable Office that a decision be rendered ordering that the
Complainant was illegally dismissed and is entitled to all money claims mentioned
above.

Other reliefs just and equitable are likewise prayed for.

January 14, 2019, Davao City, Philippines.

JEMUEL M. ODTOJAN

Assisted by:
 Office of Councilor Leah A. Librado-Yap
2/F, Room 203, SP Building, San Pedro Street, Davao City

By

ATTY. DARWIN A. TENAJA

Counsel for Complainant
PTR No. OR No. 9734415/12-28-2018/Davao City
IBP No. 025685/1-8-2018/Davao City
Series No. 047-2016/Davao City
ROLL No. 57556 April 2010
MCLE Compliance No. V-0012232/12-4-2015
Email add: HYPERLINK "mailto:darz_kant@yahoo.com" darz_kant@yahoo.com

Copy furnished:

AL RAFEDAIN MANPOWER TURKEY SAIF ALSHALAHI

INTERNATIONAL CORP AND
ITS PRESIDENT
Respondents
2654-D, Leveriza Street corner
P. Ocampo Street, Malate
1004 Metro Manila
ALMETAIRY MOTOR
WORKSHIP AND ITS OWNER
Respondents
2654-D, Leveriza Street corner
P. Ocampo Street, Malate
1004 Metro Manila

Republic of the Philippines )

City of Davao ) S.S.
x---------------------------------x

VERIFICATION / CERTIFICATION

I, JEMUEL M. ODTOJAN, of legal age, Filipino, married and a resident of

Davao City, Philippines, after having been sworn to in accordance with law, hereby
depose and say:
 That I am the Complainant in the above-entitled case. I have caused the
preparation of the foregoing Position Paper. I have read and understood the same
and attest that all statements therein are true and correct to the best of my personal
knowledge and belief.

That I have not commenced any suit or proceeding in the Supreme Court, or
any other court, office or tribunal involving the same issues and the same parties;

That in the event that I come to know of the pendency of any suit or
proceeding involving the same issues between the same parties, I hereby undertake
to inform this Honorable Office within five days from knowledge thereof.

IN WITNESS WHEREOF, I have hereunto affixed my signature this

_________________ 2018 in Davao City, Philippines.

JEMUEL M. ODTOJAN
Affiant

SUBSCRIBED AND SWORN to before me this ______________ 2018 in

Davao City, Philippines.

Doc. No. __________ ;

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