Thursday, December 2, 2010

Labor law and volunteerism in the church

Volunteerism or pro bono work is the essence of labor or service in the Church. Does the legal vinculum of employer-employee relationship legally exist as between a church volunteer and his parish church that he serves as to make the parish church liable for damages under the Labor Code in respect of his alleged “salaries” and “benefits”? Below is an example of a labor case that I had handled which involved precisely the same legal issue. Read the position paper and reply position paper that I had prepared in connection therewith for legal research purposes. Thus:



POSITION PAPER
FOR THE RESPONDENTS


THE RESPONDENTS xxx PARISH CHURCH AND ITS PARISH PRIEST FR. Xxx respectfully state:


INTRODUCTION

1. This position paper is being submitted by the respondents to the Honorable Labor Arbiter in view of the failure of the parties to reach an amicable settlement of the instant case.

2. The respondents xxx PARISH CHURCH, acting thus its parish priest, FR. Xxx, has executed a Special Power of Attorney (SPA) in favor of its duly authorized representatives xxx and xxx, who are pro bono servant-leaders of the Parish, empowering them to represent and act in behalf of the respondents in connection with the proceedings of the instant case, a copy of which is attached as Annex “A” hereof.




THE COMPLAINT


3. The pro forma complaint alleges that the complainant is an employed guard/Tanod of the respondent Church; that her alleged salary was P143.00/day; that she was allegedly employed on February 2, 2009; and that she was allegedly dismissed on April 20, 2010.

4. As appearing on the lower part of the pro forma complaint, the “causes of action” alleged in the complaint are: (a) underpayment and/or nonpayment of salaries, (b) nonpayment of overtime pay, holiday pay, holiday premium, ECOLA, and night shift differential, and (c) illegal suspension (not dismissal).

5. The complaint is premised on the presupposition that an employer-employee relationship allegedly existed between the parties.

ISSUES

6. The respondent HEREBY raise two (2) related legal issues:

6.1. WHETHER OR NOT A LEGAL AND BINDING EMPLOYER-EMPLOYEE RELATIONSHIP, AS DEFINED BY LAW AND EXISTING JURISPRUDENCE, VALIDLY EXISTED BETWEEN THE PARTIES; and

6.2. WHETHER OR NOT THE COMPLAINANT IS A MERE PRO BONO VOLUNTEER OF THE PARISH CHURCH ASSIGNED THERETO BY THE BARANGAY COUNCIL OF BARANGAY xxx OF xxx CITY AS PART OF THE MUTUAL RELATION OF HELP, ASSISTANCE, SUPPORT, RESPECT, COMITY AND GOODWILL BETWEEN THE BARANGAY AND THE PARISH FOR THE COMMON GOOD AND GENERAL WELFARE OF THE PARISHIONERS AND CONSTITUENTS OF BARANGAY xxx.



STATEMENTS OF FACTS

7. The complainant xxx is a BARANGAY VOLUNTEER POLICE VOLUNTEER (or a “volunteer Barangay Tanod”) of Barangay xxx, xxx City.

8. Attached is a copy of her ID No. xxx issued by Barangay Chairman xxx, marked as Annex “B” hereof.

9. The Barangay xxx, under Chairman xxx, maintains a very close working institutional relationship with the Parish, the Parish Priest, the Parish Pastoral Council, and other mandated organizations within the Parish for the common good and the general welfare of the parishioners of the Parish and constituents/voters of the Barangay.

10. One of the projects of the Barangay is to provide, detail or assign volunteer tanods to the Parish from time to time or as the need arises to help secure the safety of the perimeter, premises, facilities and properties of the Parish and to perform other volunteer work for the good of the Parish whether or not such volunteer work is related to security, public safety, or law and order.

11. The volunteers (including the complainant xxx) are themselves parishioners of the Parish and constituents/voters of the Barangay and as such it is their moral duty to render the necessary volunteer or pro bono assistance to help the Parish and the Barangay attain their common statutory and moral objectives for the common material and spiritual good and betterment of the quality of life of the parishioners and the constituents/voters therein.

12. Attached is a copy of a CERTIFICATION, dated June 21, 2010, issued by the Barangay Administrator, Mr. xxx, to attest to the truth of the foregoing statements, marked as Annex “C” hereof.

13. The other Barangay volunteer police or volunteer Tanods who have been assigned or detailed by the Barangay to the Parish, together with the complainant xxx, know for a fact (and acknowledge and admit) the voluntary and pro bono nature of their working relationship with and personal services to the Parish.

14. Attached is a copy of a recent joint CERTIFICATION (undated) signed by the five (5) other Barangay volunteer police or volunteer Tanods, namely, xxx, xxx, xxx, xxx, and xxx, stating that they were detailed or assigned by the Barangay to the Parish as volunteers, that they voluntarily render their personal services to the Parish as pro bono volunteers, and that the Parish provides them with an allowance of P4,000.00/month for their voluntary services as an act of goodwill and compassion to them. The certification is marked as Annex “D” hereof.

15. As an act of goodwill, compassion and humanitarianism of the Parish, it provides the Barangay volunteer police (volunteer Tanods) assigned or detailed by the Barangay to the Parish with an allowance of P4, 000.00/month out of the modest general fund of the Parish which is constituted by voluntary donations or love offerings given by well-meaning parishioners who attend the regular and special Masses and other spiritual activities and projects of the Parish.

16. From February 2009 to June 5, 2010, the complainant xxx received the parish allowance for Barangay volunteer Tanods in the amount of P4, 000.00/month.

17. Attached is a copy of the CERTIFICATION, dated June 22, 2010, signed by the bookkeeper of the Parish, Ms. xxx, attesting to the foregoing statements, with copies of the cash vouchers signed by the complainant xxx to prove the fact of receipt by her of her monthly allowances, marked as Annexes “E” to “E-59" hereof.

DISCUSSION

18. The respondents humbly submit:

18.1. that no valid, legal or binding employer-employee relationship existed between the parties;

18.2. That the complainant knew and knows to this very day that she was a Barangay volunteer police (volunteer Tanod) assigned or detailed by the Barangay to the Parish to render voluntary services to the Parish, pursuant to the legal and moral duty of the Barangay to maintain mutual institutional linkages and comity and support between the Barangay and the Parish in the interest of the community;

18.3. That she ought to be thankful for the compassionate and humanitarian allowances that has provided to her by the Parish, which had no legal duty in the first place, to compensate a voluntary service of a pro bono child of God, as if to serve and work for God and His Church is a materialistic and commercial livelihood;
18.4. That she ought to be thankful for the spiritual formation and transformation, in the form of Masses, Sacraments, and other Spiritual Blessings, that she has received from the Parish and the Parish Priest in the course of her purely pro bono or voluntary relationship with and services to the Parish;

18.5. That there is no legal and factual basis for the complainant to hold the respondents liable for the money claims (salaries, holiday pay, overtime pay, leave benefits, ECOLA, etc.) alleged in the causes of action part of her pro forma complaint;

18.6. That she knew that the Barangay may change her work detail or assignment at anytime and may assign or detail her to any other place within the territory and jurisdiction of the Barangay in the interest of public service;

18.7. That the Barangay and the Parish have not “dismissed” or “suspended” her; and

18.8. That no evidence exists to prove that she was “hired or employed” as a “salaried probationary, casual, or regular employee” of the Parish, either in the form of a memorandum of appointment, payrolls, pay slips, social legislation premiums (SSS, Pagibig, Philhealth, State Insurance Fund) or otherwise; and

18.9. That no evidence exists to prove that she was allegedly “dismissed” or “suspended” or that administrative disciplinary actions were taken against her by the Parish.

19. In the case of PEDRO CHAVEZ vs. NLRC, G.R. No. 146530, January 17, 2005, where the threshold issue to be resolved was whether there existed an employer-employee relationship between the respondent company and the petitioner, the elements to determine the existence of an employment relationship were enumerated as follows: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the employer’s power to control the employee’s conduct. (See also: Perpetual Help Credit Cooperative Inc. vs. Faburada, GR 121948, Oct. 8, 2001).

20. It was not the Parish who selected and engaged the complainant as a Barangay volunteer police or volunteer Tanod.

20.1. She was screened, trained and accredited by the Barangay, who detailed her to the Parish to render voluntary security and non-security services to the Parish.

20.2. The compassionate humanitarian monthly allowances provided to her by the Parish were not salaries or wages.

20.3. The Parish had no power of dismissal over her because she was not organic personnel of the Parish.

20.4. She was a Barangay volunteer police or volunteer Tanod under the control, supervision and direction of the Barangay.

20.5. The Parish had no power of administrative discipline over her, in the form of dismissal and other sanctions.

21. In the case of GLORY PHILIPPINES, INC. vs. BUENAVENTURA B. VERGARA and ROSELYN T. TUMASIS, G.R. No. 176627, August 24, 2007, it was held that there are three kinds of employees as provided under Article 280 of the Labor Code:

(1) regular employees or those who have been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer;

(2) project employees or those whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season; and

(3) casual employees or those who are neither regular nor project employees.

22. The complainant does not fall within any one of the abovementioned legal categories.

23. The fact remains:

23.1. That she was a Barangay volunteer police (volunteer Tanod) under the direction and control of the Barangay who was detailed to the Parish to render voluntary security services and who rendered other kinds of voluntary services to the Parish other than security services, e.g. cleaning her nearby surroundings or doing other minor errands when she was idle;
23.2. That she could be detailed by the Barangay authorities anywhere else within the Barangay jurisdiction at anytime as a Barangay volunteer police;

23.3. That she misunderstood the act of compassion of the Parish (i.e., allowance of P4,000.00/month) as an act of hiring or employing or regularization;

23.4. That instead of expressing her gratitude to the Parish for providing her with compassionate allowances as a Barangay volunteer police (plus other kinds of spiritual formation supports) and instead of initiating a humble dialogue and mediation meetings with the Parish and the Barangay authorities before taking any external legal actions, she directly and maliciously commenced the instant arbitrary and baseless labor suit against the Parish and the Parish Priest, thus, exposing the Parish and its spiritual leaders and the Barangay to extreme public humiliation and mental anguish.


RELIEF

WHEREFORE, premises considered, it is respectfully prayed that that instant case be DISMISSED for utter lack of merit.
FURTHER, the respondents respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.
Las Pinas City, June 25, 2010.


Xxx PARISH CHURH
AND FR. xxx
Respondents


By:


xxx
Attorney in Fact


xxx
Attorney in Fact


VERIFICATION
AND
ANTI-FORUM SHOPPING CERTIFICATION

WE, xxx, of legal age, married, Filipino, and with postal address at Convento, xxx Parish Church, xxx St., xxx Village, xxx, xxx City, and/or xxx, of legal age, married, Filipino, and with postal address at Barangay xxx, xxx Village, xxx, xxx City, state: That we are the attorneys in fact of the abovenamed respondents in the abovecaptioned pending labor case; That we caused the preparation thereof; that we have read its contents; and that the same are true and correct of my own direct personal knowledge.

Further, pursuant to Rule 7 of the 1997 Rules of Civil Procedure and existing Supreme Court circulars, we hereby certify that we have not heretofore commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of our knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; and that if we should hereafter learn that other similar or related actions or proceedings has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, we undertake to report that fact within five (5) days therefrom to this court.

xxx City, xxx, 2010.



xxx
Attorney-in-Fact


xxx
Attorney in Fact



ACKNOWLEDGMENT

BEFORE ME in xxx City on xxx, 2010 personally appeared the abovenamed attorney/s in fact of the respondents in the abovecaptioned pending labor case, with their respective Official IDs as indicated above, who are known to me and to me known to be the same persons who executed the foregoing verification and anti forum shopping certification as part of the foregoing position paper in the abovecaptioned pending labor case, and who attested to me that the same is their free act and deed.



Notary Public


Doc. No.
Page No.
Book No.
Series of 2010




REPLY POSITION PAPER
FOR THE RESPONDENTS


THE RESPONDENTS xxx PARISH CHURCH AND ITS PARISH PRIEST FR. xxx, represented by their undersigned attorneys-in-fact, respectfully state:

24. At the outset, it must be noted that pro forma complaint states that the complainant was allegedly dismissed on April 20, 2010. In her “causes of action”, the complainant claimed, inter alia, “illegal suspension” (not dismissal). And yet, contradicting herself, in the relief part of her main position paper, the complainant prays that a finding of “illegal dismissal” be declared in her favor.

25. The complaint is erroneously premised on the wrong assumption that an employer-employee relationship existed between the parties – a matter which the respondents have vehemently opposed and controverted in their position paper I chief.

26. The respondents raised two (2) legal issues in their main position paper, thus:

26.1. WHETHER OR NOT A LEGAL AND BINDING EMPLOYER-EMPLOYEE RELATIONSHIP, AS DEFINED BY LAW AND EXISTING JURISPRUDENCE, VALIDLY EXISTED BETWEEN THE PARTIES; and

26.2. WHETHER OR NOT THE COMPLAINANT IS A MERE PRO BONO VOLUNTEER OF THE PARISH CHURCH ASSIGNED THERETO BY THE BARANGAY COUNCIL OF BARANGAY xxx OF xxx CITY AS PART OF THE MUTUAL RELATION OF HELP, ASSISTANCE, SUPPORT, RESPECT, COMITY AND GOODWILL BETWEEN THE BARANGAY AND THE PARISH FOR THE COMMON GOOD AND GENERAL WELFARE OF THE PARISHIONERS AND CONSTITUENTS OF BARANGAY xxx.

27. The respondents hereby raise a third related issue by way of reaction to the position paper in chief of the complainant, thus:

WHETHER OR NOT THE COMPLAINANT WAS “SUSPENDED OR DISMISSED” BY THE PARISH AS A “PARISH EMPLOYEE” OR WAS SHE RELIEVED BY THE BARANGAY AS A BARANGAY POLICE VOLUNTEER (TANOD) FROM HER DETAIL IN THE PARISH.

28. The respondents hereby adopt hereto, by incorporation and reference, all the allegations, arguments and jurisprudential citations stated in their main position paper, more particularly the following previously alleged facts, thus:

28.1. The complainant xxx is a BARANGAY VOLUNTEER POLICE VOLUNTEER (or a “volunteer Barangay Tanod”) of Barangay xxx, xxx City. (See a copy of her ID No. xxx issued by Barangay Chairman xxx, Annex “B”, Position Paper for Respondents).

28.2. The other Barangay volunteer police or volunteer Tanods who have been assigned or detailed by the Barangay to the Parish, together with the complainant xxx, know for a fact (and acknowledge and admit) the voluntary and pro bono nature of their working relationship with and personal services to the Parish. (See their joint CERTIFICATION (undated) signed by the five (5) other Barangay volunteer police or volunteer Tanods, namely, xxxxxxxxxxxxxxx, stating that they were detailed or assigned by the Barangay to the Parish as volunteers, that they voluntarily render their personal services to the Parish as pro bono volunteers, and that the Parish provides them with an allowance of P4,000.00/month for their voluntary services as an act of goodwill and compassion to them. The document was marked as Annex “D” of the main position paper for the respondents).

28.3. As an act of goodwill, mercy, compassion and humanitarianism of the Parish, it provides the Barangay volunteer police volunteer Tanods assigned or detailed by the Barangay to the Parish with an allowance of P4, 000.00/month out of the modest general fund of the Parish which is constituted by voluntary donations or love offerings given by well-meaning parishioners who attend the regular and special Masses and other spiritual activities and projects of the Parish.

28.4. From February 2009 to June 5, 2010 (sic – the date should be May 22, 2010), the complainant xxx received the parish allowance for Barangay volunteer Tanods in the amount of P4, 000.00/month. (See the CERTIFICATION, dated June 22, 2010, of the bookkeeper of the Parish, Ms. xxx, with the various cash vouchers signed by the complainant xxx [and the other volunteers], marked as Annexes “E” to “E-59" of the main position paper for the respondents).

28.5. No valid, legal or binding employer-employee relationship existed between the parties. The complainant knew that she was a Barangay volunteer police (volunteer Tanod) assigned or detailed by the Barangay to the Parish to render voluntary services to the Parish, pursuant to the legal and moral duty of the Barangay to maintain mutual institutional linkages and comity and support between the Barangay and the Parish in the interest of the general welfare of the community;

28.6. There is no legal and factual basis for the complainant to hold the respondents liable for the money claims (salaries, holiday pay, overtime pay, leave benefits, ECOLA, etc.) alleged in the causes of action part of her pro forma complaint;

28.7. That the complainant knew that the Barangay may change her work detail or assignment at anytime, or may assign or detail her to any other place within the territory and jurisdiction of the Barangay in the interest of public service, or may relieve, suspend, or dismiss her as a barangay police volunteer or Tanod at any time by reason of the voluntary nature of her status as a Barangay police volunteer or Tanod; and

28.8. No evidence exists to prove that she was “hired or employed” as a “salaried probationary, casual, or regular employee” of the Parish, either in the form of memorandums of appointment, payrolls, pay slips, social legislation premiums (SSS, Pagibig, Philhealth, State Insurance Fund) and others.

29. The doctrine held in the case of PEDRO CHAVEZ vs. NLRC, G.R. No. 146530, January 17, 2005, enumerates the elements to determine the existence of an employment relationship as follows: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the employer’s power to control the employee’s conduct. (Citing: Perpetual Help Credit Cooperative Inc. vs. Faburada, GR 121948, Oct. 8, 2001).

29.1. In the instant case, it was not the Parish which selected or engaged the complainant as a Barangay volunteer police or volunteer Tanod. She was screened, trained and accredited by the Barangay, who detailed her to the Parish to render voluntary security and non-security services to the Parish. The compassionate humanitarian monthly allowances provided to her by the Parish were not salaries or wages in the concept of an “employed worker”. The Parish had no power of dismissal over her because she was not organic personnel of the Parish. She was a Barangay volunteer police or volunteer Tanod under the control, supervision and direction of the Barangay. The Parish had no power of administrative discipline over her in the form of dismissal and other sanctions.

30. The doctrine pronounced in the case of GLORY PHILIPPINES, INC. vs. BUENAVENTURA B. VERGARA and ROSELYN T. TUMASIS, G.R. No. 176627, August 24, 2007, enumerates the three (3) kinds of employees as provided under Article 280 of the Labor Code: (1) regular employees or those who have been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; (2) project employees or those whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season; and (3) casual employees or those who are neither regular nor project employees. In the instant case, the complainant does not fall within any one of the abovementioned legal categories.

31. For the record, and in support of the foregoing statements, attached to the original copy of this reply position paper is the original copy of the CERTIFICATION, dated August 9, 2010, issued by the Barangay Administrator and the Chairman of the Committee on Peace and Order of Barangay xxx, xxx City, marked as Annex “A” hereof, which, inter alia, states:

31.1. That during the assignment by the Barangay of the complainant xxx as a Barangay Police Volunteer in the xxx Parish Church to help secure its premises, the complainant had lost twice the security logbook of the parish and that she was caught sleeping on duty by the respondent parish priest, for which reason the Barangay suspended her from April 19, 2010 to April 23, 2010;

31.2. That for humanitarian reasons the complainant was again given by the Barangay another charitable chance to continue serving her post as Volunteer Tanod assigned in the Church from April 24, 2010 to May 23, 2010; and

31.3. That on May 25, 2010 the complainant was re-assigned and re-called by the Barangay from the Church due to the aforecited infractions and incidents.

32. To stress: xxx was not “dismissed” or “suspended” but was in fact “recalled and re-assigned” by the Barangay from the Parish as a Volunteer Tanod -- which act the Brgy may do moto proprio on its sound discretion. The Barangay in effect disciplined her based on the reports of neglect of duty. The parish was not the one which relieved, recalled, or reassigned her from the Church. To use the word “dismissed” or “suspended” connotes the existence of employer-employee relationship which is not the case here. The Church did not suspend or dismiss her. The Barangay recalled, relieved, and reassigned her. A Volunteer Tanod is always subject to the management prerogatives and sound disciplinary discretion and powers of the Barangay hierarchy, of which she is an organic part as a Volunteer Police or Tanod.

33. A final point. The National Labor Relations Commission (NLRC) or the Department of Labor and Employment (DOLE) have NO JURISDICTION over the instant case because no employer-employee relationship exists between the Parish and the complainant. The legal relationship (vinculum) of the complainant, as Barangay police volunteer (Tanod), was legally and factually linked to the Barangay and not to the Parish. The Barangay is a local government unit (LGU) as defined in the Local Government Code of 1991 and the Administrative Code of 1987. All work-related issues and actions which directly or indirectly partake of the nature of a labor suit involving persons connected to or found within the composite structure or hierarchy of an LGU, such as the Barangay, must be properly filed with and commence in the Office of the Mayor, the Sangguniang Panglunsod, the proper district or regional offices of the Department of Interior and Local Government (DILG) or of the Civil Service Commission (CSC), as the case may be and depending on the nature of the suits. These governmental entities have exclusive and original jurisdiction over such kinds of actions.

WHEREFORE, premises considered, it is respectfully prayed that that instant case be DISMISSED for lack of jurisdiction and for utter lack of merit.
FURTHER, the respondents respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.
xxx City, xxx, 2010.


xxxx PARISH CHURH
AND FR. xxx
Respondents

By:


xxx
Attorney in Fact


Xxx
Attorney in Fact




VERIFICATION

WE, xxxx, of legal age, married, Filipino, and with postal address at Convento, xxx Parish Church, XXXXXXXXXXX, xxx City, and/or xxxx, of legal age, married, Filipino, and with postal address at XXXXXXXXXXXXXXX, , xxx City, state: That we are the attorneys in fact of the abovenamed respondents in the abovecaptioned pending labor case; That we caused the preparation thereof; that we have read its contents; and that the same are true and correct of my own direct personal knowledge.

xxx City, xxx, 2010.



xxxx
Attorney-in-Fact


xxx
Attorney in Fact


SUBSCRIBED and sworn to before me in xxx City on xxx 2010.


Notary Public

Doc. No.
Page No.
Book No.
Series of 2010

1 comment:

  1. Hi atty. May I know if there is already a resolution on this case. I have a similar problem. I ran for a political office in 2010. In the process, I secured the services of political aides/volunteers who support my advocacy. In the process, i regularly give them stipends/allowance for their mobilization expenses. I used my private company to release said stipends. Now, one volunteer sued me for illegal dismissal when I decided to end my advocacy after losing in the last election.

    What do you think of my case? I think we have an analogous case here.

    geronimo

    ReplyDelete