$. 0670 REPUBLIC OF THE PHILIPPINES DEPARTMENT OF LABOR AND EMPLOYMENT. A NATIONAL LABOR RELATIONS COMMISSION REGIONAL ARBITRATION BRANCH NO. IV CALAMBA CITY, LAGUNA DOMINGO B. BONIFACIO, Complainant, - versus - NLRC NCR Case No. 4-00603-16-L Executive Labor Arbiter Generoso V. Santos CIRTEK ATS/ (ADVANCED TECHNOLOGIES & SOLUTIONS, INC.) AND JERRY LIU, Respondents. Xe MOTION TO QUASH Respondents CIRTEK ADVANCED TECHNOLOGIES AND SOLUTIONS, INC. [the “Company”] and JERRY LIU “Liv"], by counsel, respectfully move to quash the 7 February 2018 Writ of Execution issued by this Honorable Office, a copy of which was received by the Company on 16 March 2018, based on the following ground: GROUND THE WRIT OF EXECUTION SHOULD BE QUASHED CONSIDERING THAT IT WAS IMPROVIDENTLY ISSUED id THE EXECUTION OF THE 30 JUNE 2017 DECISION AND THE 31 AUGUST 2017 RESOLUTION OF THE NATIONAL LABOR, RELATIONS COMMISSION WOULD RENDER MOOT AND ACADEMIC THE PROCEEDINGS BEFORE THE COURT OF APPEALS PERTAINING TO THE COMPANY’S PETITION FOR CERTIORARI IN VIOLATION OF THE PRINCIPLE OF JUDICIAL COURTESY AND HIERARCHY OF COURTSDISCUSSION On 4 October 2017, the Company filed the Petition for Certiorari before this the Court of Appeals to contest the 30 June 2017 Decision [*Questioned Decision"] and the 31 August 2017 Resolution [-Questioned Resolution”] of the National Labor Relations Commission [‘NLRC"] in “Domingo B. Bonifacio v. Cirtek Advanced Technologies Solutions, Inc. amd Jerry Liu” [NLRC NCR Case No. 4-60603-16-L/ NLRC LAC No. 06-002103-17]._ In said Petition, the Company was able to discuss and prove that the NLRC clearly acted without or -n excess of its jurisdiction and/or with grave abuse of discretion. Thus, -he grounds relied upon by the Company in said Petition were as follows: GROUNDS PUBLIC RESPONDENT NLRC COMMITTED SERIOUS ERROR AND GRAVE ABUSE OF DISCRETION AS FOLLOWS: 1 IN GRANTING PRIVATE RESPONDENT'S APPEAL AND IN RULING THAT HE WAS RETRENCHED FROM. EMPLOYMENT NOTWITHSTANDING THE CLEAR ABSENCE OF THE ELEMENTS OF RETRENCHMENT. IL IN RELYING ON PRIVATE RESPONDENT'S. UNFOUNDED CONCLUSION THAT HE WAS. PAID A PORTION OF HIS SEVERANCE PAY AS A RETRENCHED EMPLOYEE AND IS, THEREFORE, ENTITLED TO THE REMAINING BALANCE Ti IN DECLARING THAT PRIVATE RESPONDENT WAS SIMPLY REHIRED AFTER HE WAS RETRENCHED FROM. EMPLOYMENT WITHOUT ANY FACTUAL AND BASIS IV WITHOUT PREJUDICE TO THE FOREGOING ARGUMENTS AND DISCUSSION, IT IS EVIDENT THAT PRIVATE RESPONDENT IS NOT ENTITLED TO ANY SEVERANCE OR SEPARATION PAY CONSIDERING THAT IT IS CLEAR FROM THE EVIDENCE ONRECORD THAT THE SEVERANCE OF EIS EMPLOYMENT WAS DUE TO HIS VOLUNTARY RESIGNATION A copy of the Petition for Certiorari sans annexes is attached as Annex “1”. On 8 December 2017; the Company filed an Extremely Urgent Motion to Resolve Petition with Reiterative Prayer to Issue Temporary Restraining Order before the Court of Appeals where the Company informed the Court of Appeals that it would be difficult, if no: impossible to recover any amount that may be released to complainant should execution proceedings ensue despite the glaring errors committed by the NLRC in rendering its Decision and Resolution. A copy of the Motion is attached as Annex “2”, On 18 January 2018, a pre-execution conference was conducted before this Honorable Office. During the pre-execution conference said conference, the Company through the undersigned counsel manifested the need to consult the Company first due to the pendency of this Petition for Certiorari and check whether or not there is a possibility of settlement. However, complainant, without any justified reason, rejected outright any resetting of the conference on a later date and moved that all pending incidents be submitted for resolution, Clearly, he is trying to railroad the execution of the judgment award and thereby render the proceedings in Petition the Certiorari moot and academic, On 25 January 2018, the Company filed a Reiterative Urgent Motion to Resolve Petition with Prayer to issue Temporary Restraining Order reiterating its Extremely Urgent Motion to Resolve Petition with Reiterative Prayer to Issue Temporary Restraining Order, Further, the Company clarified that it would be unfair and unjust at this point to execute the judgment award as it would be difficult, if not impossible, for the Company to recover from complainant in the event that te Court of Appeals reverses and sets aside the Decision and Resolution of the NLRC. A copy of the Motion is attached as Annex “3”. On 6 March 2018, the Company filed a Manifestation with Motion before the Court of Appeals informing said court that the Company received a copy of the Writ of Execution on even date. A copy of the Manifestation with Motion is attached as Annex “4”, It must be stressed that the subject of the execution is the monetary award in favor of complainant in the amount of US$ 205,292.00 consisting of his separation pay, attorney's fees in the amount of US$20,529.20 and payment of execution and deposit fees in the amounts of P104,198.92 and PS2,369.46, respectively, would necessarily cause irreparable damage to the Company should the judgment award be not recovered from complainant in the event that the Court of Appeals reverses and sets aside the Decision and Resolution of public respondent NLRC. It is, therefore, in the interest of justice that the arguments duly set forth by the Company in its Petition for Certiorari be fitst considered by the latter court before executing the Decision and Resolution of the NLRC. As held in Vicente v. Court of Appeals [G.R. No. 175988, 24 August 2007}: In administrative proceedings, the quantum of proof required is substantial evidence, which is more than a mere scintilla of evidence, but such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. The Court of Appeals ay review the factual findings of the NLRC and reverse s ruling if it finds that the decision of the NLRC lacks substantial basis. In the same vein, factual findings of the Court of Appeals are generally not subject to this Court's review under Rule 45. However, the general rule on the conclusiveness of the factual findings of the Court of Appeals is also subject to well-recognized exceptions such as where the Court of Appeals’ findings of facts contradict those of the lower court, or the administrative bodies, as in this case. All these considered, we are compelled to make a further calibration of the evidence at hand. Moreover, the execution of the judgment award, at this point, would not only undermine the hierarchy of courts, disregard the respect and due deference that should be accorded to the Court of Appeals, but would also render moot and academic any favorable action of the Court of Appeals especially after the Company had pointed out the erors committed by the NLRC in its Decision and Resolution. Thus, it would be imprudent to ignore the power of the Court of Appeals to possibly reverse and set aside the Decision and Resolution of the NLRC. The justification of the Company is amply supported by jurisprudence.In Eternal Gardens Memorial Park Corp. v. Court of Appeals [G.R. No. L-50054, 17 August 1988], the Supreme Court ruled that: Although this Court did not issue any restraining order against the Intermediate Appellate Court to prevent it from taking any action with regard to its resolutions respectively granting respondents’ motion to expunge from the records the petitioner’s motion to dismiss and denying the latter's motion to reconsider such order, upon learning of the petition, the appellate court should have refrained from ruling thereon because its jurisdiction was necessarily limited upon the filing of a petition for certiorari with this Court questioning the propriety of the issuance of the above-mentioned resolutions. Due respect for the Supreme Court and pra 1 and ethical considerations should have prompted the appellate court to wait for the final determination of the petition before taking cognizance of the case and trying to render moot exactly what was before this court {Emphasis supplied]. It must be emphasized that the principle of hierarchy of courts has never been abandoned as a hornbook doctrine in this jurisdiction. In fact, in Panuncillo v. CAP Philippines, Inc. [G.R. No. 161305, 9 February 2007], the Supreme Court once again held that even if no order is issued by the courts enjoining the execution of judgment awards that are the subject of judi review, the labor tribunals are mandated to exercise extreme prudence and observe the principle of judicial courtesy in the execution proceedings conducted during the pendency of the review. According to the Supreme Court: IN SUM, while under the sixth paragraph of Article 223 of the Labor Code, the decision of the NLRC becomes final and executory after the lapse of ten calendar days from receipt thereof by the parties, the adverse party is not precluded trom assailing it via Petition for Certiorari under Rule 65 before the Court of Appeals and then to this Court via a Petition for Review under Rule 45. If during the pendency of the review no order is issued by the courts enjoining the execution of a decision of the Labor Arbiter or NLRC which is favorable to an employee, the Labor Arbiter or the NLRC must exercise extreme prudence and observe judicial courtesy when the circumstances so warrant[Emphasis supplied]. This reminder of the Supreme Court to the labor tribunals is applicable herein taking into consideration the special circumstances of the present case, The subject of the execution is the monetary award in favor of complainant representing his separation pay in the amount of US$ 205,292.00, attorney’s fees in the amount of US$ 20,529.20 and execution and deposit fees in the amounts of P104,198.92 and P52,369.46, respectively. Certainly, it would be difficult, if not impossible, for the Company to recover the said monetary awards in the event that the Court of Appeals reverses and sets aside the Decision and Resolution of the NLRC. Notably, in Maceda v. Development Bank of the Philippines [G.R. No. 135128, 26 August 1999], the Supreme Court ruled that execution should be handled with utmost care in order to prevent injury to the adverse party. The Supreme Court ruled, thus: Moreover, the reasons allowing execution must constitute superior circumstances demanding urgency which will outweigh the injury or damages should the losing party secure a reversal of the judgment. The rule on judicial courtesy should, thus, prompt this Honorable Office to allow the Court of Appeals to evaluate the issues raised by the Company in its Petition for Certiorari, the very subjects of waich are the NLRC’s Decision and Resolution which declared complainant entitled to separation pay despite his voluntary resignation from employment. In the event that the Petition for Certiorari is granted and the Decision and Resolution of the NLRC are reversed and set aside, the higher courts’ disposition would be rendered moot if execution precedes the same. All these should be considered as sufficient justification for this Honorable Office to observe judicial courtesy and defer the execution of the NLRC Decision and Resolution. Delima v. Gois [G.R. No. 178352, 17 June 2008] is also instructive. The Resolution of the NLRC dismissing therein respondent’s appeal was entered in the Book of Entries of Judgment on 29 September 2006 after it allegedly became final and executory on 12 September 2006. Parenthetically, the NLRC issued the Resolution dismissing the appeal of therein respondent on 31 May 2006. A Motion for Reconsideration was filed on 24 July 2006 but it was denied by theNLRC on 22 August 2006. The resolution of denial was received by therein respondent on | September 2006. Thus, he had sixty (60) days from receipt thereof or until 31 October 2006, within which to file a Petition for Certiorari under Section 4 of Rule 65 of the Rules of Court, Accordingly, the Petition for Certiorari filed by therein respondent before the Court of Appeals on 13 October 2006 was timely. Ruling that the NLRC erred in declaring its 31 May 2006 Resolution final and executory, the Honorable Supreme Court held in Delima that: A decision issued by a court is final and executory when such decision disposes of the subject matter in its entirely or terminates a particular proceeding or action, leaving nothing else to be done but to enforce by execution what has been determined by the court, such as when after the lapse of the reglementary period to appeal, no appeal has been perfected. In the instant case, it is undisputed that when the entry of judgment was issued by the NLRC on September 12, 2006 and entered in the Book of Entries of Judgment on September 29, 2006, the reglementary period to file a petition for certiorari has not yet lapsed. In fact, when the petition for certiorari was filed on October 13, 2006, the same was still within the reglementary period. It bears stressing that a petition for certiorari under Rule 65 must be filed “not later than 60 days from notice of the judgment, order or resolution” sought to be annulled. ‘The period or manner of “appeal” from the NLRC to the Court of Appeals is governed by Rule 65 pursuant to the ruling of this Court in the case of St. Martin Funeral Home y, National Labor Relations Commission. Section 4 of Rule 65, as amended, states that the “petition may be filed not later than sixty (60) days from notice of the juclgment, or resolution sought to be assailed.” Corollarily, Section 4, Rule III of the New Rules of Procedure of the NLRC expressly mandates that “(for the purpose(s) of computing the period of appeal, the same shall be counted from receipt of such decisions, awards or orders by the counsel of record.” Although this rule explicitly contemplates an appeal before the Labor Arbiter and the NLRC, we do not see any cogent reason why the same rule should not apply to petitions for certiorari filed with the Court of Appeals from decisions of the NLRC.Notably, the rulings on the principles of judicial courtesy and the hierarchy of courts is well supported by recent jurisprudence. It is significant to note that in Saudi Arabian Airlines v. Rebesencio [G.R. No. 194321, 1 December 2010], the Supreme Court gave due regard to the observance of the principle of judicial courtesy despite the absence of a TRO and/or writ of preliminary injunction: Before this Court is a Petition for Certiorari with Urgent Application for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction, assailing the Resolution issued by the Court of Appeals (CA) dated September 9, 2010, which denied petitioners’ similar motion for the issuance of a TRO or an Injunctive Writ on the ground that the case, particularly docketed as CA-G.R. SP No. 113006, was already deemed submitted for decision, and that the issues relative to the said motion would be resolved together with the main petition. We dismiss the Petition for lack of grave abuse of discretion on the part of the CA since there is a marked absence of any urgent necessity for the issuance of a TRO and/or weit of preliminary injunction Suffice it to state that no writ of execution has yet been issued by the Labor Arbiter (LA) in this case. Respondents have only filed a motion for the issuance thereof. The LA has not ruled on the motion. Just as there exists the possibility that the LA shall grant responden‘s' motion, there also exists the possibility that the LA shall deny the same. Evidently, petitioners' application for a TRO and/or writ of preliminary injunction is, as of yet, based on purely speculative grounds and already assumes that the LA would grant respondents’ motion and issue a writ of execution. Of the same nature as an injunction, a TRO is not designed to protect contingent or future rights; the possibility of irreparable damage without proof of actual existing right is not a ground for the issuance thereof, Nevertheless, it behooves the LA to accord the CA a measure of judicial respect and courtesy asmuch as the main case involving the parties herein has already been submitted for decision before the CA.WHEREFORE, the instant Petition is DISMISSED, and the Court of Appeals is hereby DIRECTED to resolve the case, particularly docketed as CA-G.R. SP No, 113006, with dispatch. The Labor Arbiter is ADVISED to observe judicial courtesy and await the Court of Appeals Decision [Emphasis supplied]. In view of the foregoing, it is submitted that cogent grounds exists for this Honorable Office to quash the Writ and to hold in abeyance any further execution proceedings. The Company’s Petition for Certiorari is pending before the Court of Appeals, and it is appropriate to accord it judicial respect and courtesy. PRAYER WHEREFORE, it is respectfully prayed that the 7 February 2018 Writ of Execution be quashed. Other reliefs, just and equitable are likewise prayed for Pasig City for City of Laguna, 15 March 2018 Li 3UESMA MAGSALIN CONSULTA & GASTARDO Counsel for Respondents Unit 705 Prestige Tower, F. Ortigas, Jr. Road Ortigas Center, Pasig City By: CARLOS LUIS L. FERNANDEZ PTR No. 3897093; 01-09-18; Pasig City IBP No, 024389; 01-08-18; Quezon City Roll No. 45321 MCLE Compliance No. V-0020565 20 April 2016ERRYLYN C. NAVARRA PTR No. 3723693; 01-06-18; Pasig Cty IBP No. 024392; 01-08-18; Makati Roll No. 62588 MCLE Compliance No. V-0020688 20 April 2016 Copy furnished: GERARDO ERESE, ESO. Counsel for Complainant Unit 708, 7" Floor, The Infinity Bonifacio Global City, Taguig 10REPUBLIC OF THE PHILIPPINES COURT OF APPEALS MANILA wn; -4 Alt 249 LAGHALEN CONSELTA Division A As LARDO LAW OFFI S ae * CIRTEK ADVANCED ANNEX a TECHNOLOGIES AND SOLUTIONS, i INC, pe (FF A Petitioner, & Pen mer F , Ae i) ve: bX -versus- CA GR. SP No. [From NLRC NCR Case No. 4-00603-16- L/ NLRC LAC No. 06-002103-17] Petition for Certiorari under Rule 65 of * the Rules of Court with Urgent Prayer for Temporary Restraining Order and/or Preliminary Injunction DOMINGO B. BONIFACIO AND THE NATIONAL LABOR | RELATIONS COMMISSION, Respondents. PETITION Petitioner CIRTEK ADVANCED TECHNOLOGIES AND SOLUTIONS, INC. [the “Company”], by counsel, respectfully states: PRELIMINARY STATEMENT ‘This is a Petition for Certiorari under Rule 65 of the Rules of Court. It seeks the review and annulment of the 30 June 2017 Decision [“Questioned Decision] and the 31 August 2017 Resolution [Questioned Resolution”] of public respondent National Labor Relations Commission [“NLRC*] in “Domingo B. Bonifacio v. Cirtek Advariced Technologies Solutions, Inc. amd Jerry Liu” (From NLRC NCR Case No. 4-00603-16-L/ NLRC LAC No. 06-002103-17]. In rendering the Questioned Decision and Resolution, public respondent NLRC clearly acted without or in excess of its jurisdiction and/or with grave abuse of discretion.A copy of the Questioned Decision was received on 18 July 2017. A Motion for Reconsideration thereof was filed 20 July 2017. The Questioned Resolution denying the Company’s Motion for Reconsideration was received on 13 September 2017. In accordance with Section 4, Rule 65 of the Rules of Court, this Petition is, therefore, timely filed. The Company is a corporation organized and existing under Philippine laws. Its principal office address is at 116 East Main Avenue Phase V, SEZ, Laguna Technopark, Bifian City. It may be served with the processes of this Honorable Court through the undersigned counsel, LAGUESMA MAGSALIN CONSULTA & GASTARDO, with address at 705 Prestige Tower, F. Ortigas Jr. Road, OrtigasCenter, Pasig City. Private respondent Domingo Bonifacio[“Bonifacio”] was the former President of the Company until his voluntary resignation from the Company effective 15 November 2015, His address on record at 108 Pili Drive, Ayala Alabang Village, Muntinlupa City. He was represented during the proceedings below by Atty. Gerardo Erese with office address at the 23" Floor, Corporate Center139 Valero Street, Salcedo Village, Makati City Public respondent NLRC is impleaded as a nominal party having rendered the Questioned Resolutions. It may be served with orders, notices and other judicial processes at the PPSTA Building, Banawe Avenue, Quezon City. STATEMENT OF FACTS AND THE CASE 1. Private respondent was appointed as President of REMEC Broadband Wireless LLC [“Remec”] on 27 August 2005. Remec was engaged in a manufacturing solutions partner for telecommunications, satellite communications, semiconductor test boards, industrial and automotive equipment in low/medium/high volumes, and high mix applications. 2. As President of Remec, private respondent performed. the following duties and responsibilities: the duties and executing the obligations and fies of his office and such other functions as may be delegated by the Board of Directors and the Executive Committee of Remec;~ implementing Remec’svision, mission as well as its overall direction; -leading, guiding, directing other executive leaders of Remec; - formulating and implementing guides and plans for the direction of the business of Remec; and - overseeing the over-all operation of Remec. 3. Moreover, Remec has a policy on the payment of Severance Benefit based on its Retirement Plan Rules and Regulations which states that severance benefit shall be paid only in favor of “(a) nember who is involuntarily separated by the Company with at least eight (8) but less than ten (10) years of Credited Service due to a retrenchment program or redundancy or for causes not due to his own fault for every year of Credited Service or a percentage of his normal retirement benefit for ten (10) years of Credited Service. . .” [Emphasis supplied]. 4. Remec incurred substantial financial losses leading up to 2013. Thus, in 2013, Remec initiated the retrenchment of some of its employees in order to stem its financial hemorrhaging, The foregoing, however, did notstop the continued financial losses of Remec with clients withdrawing their respective businesses from Remec. 5. In 2014, Remee decided to implement another retrenchment program, this time involving two hundred seventy-two (272) of its employees. As Remec was preparing for the implementation of the retrenchment, Cirtek Electronics Corporation [“Cirtek Electronics Corp.”] bought a majority of the shares of stock of Remec. Remec was thereafter renamed as Cirtek Advanced Technologies and Solutions, Inc. herein respondent. A copy of Remec’s Certificate of Filing of Certificate of Change of Name from Remec Broadband Wireless International, Inc. to Cirtek Advanced Technologies and Solutions, Inc. filed with the Securities and Exchange Commission is attached as Annex ©A” 6. — After Remec changed its corporate name to Cirtek Advanced Technologies and Solutions, Inc., private respondent continued to act as its President and, as such, was undoubtedly considered as a corporate officer. Indeed, the position of President is indicated in the Corporation Code as a corporate officer position. More importantly, in recognition of the fact that private respondent was indeed a corporate officer, he was reported by the Company as such in its General Information Sheet [“GIS”] that was filed with the Securities and Exchnage Commission [“SEC”]. A copy of the GIS is attached as Annex “B”,7. Private respondent, as President, was not’ part of the retrenchment program affecting the employees of the Company. Despite being a corporate officer, the Company nonetheless inquired from private respondent if he was also keen on leaving the Company if he is given a separation package. Thus, initially, private respondent was included in the two hundred seventy-two (272) employees of the Company to be retrenched from employment. Notwithstanding this, private respondent was not actually retrenched as he insisted that he wanted to continue working as President of the Company. Due to said refusal, private respondent remained with the Company as its President. 8. Thus, private respondent remained as President of the Company until he tendered his resignation through a resignation letter dated 12 October 2015. The letter, in pertinent part, states: I hereby tender my resignation from my current post as President of CIRTEK Advanced Technologies and Solutions, Inc. effective November 15, 2015. With much thought and other consultation with my family, I have come to this decision due to health and personal reasons [Emphasis supplied]. A copy of private respondent's resignation letter is attached as Annex “C”. 9. Despite his voluntary resignation from the Company and despite the fact that he is a corporate officer, private respondent filed the Complaint subject of the present case for payment of separation pay, attomey’s fees and interest on his expenses for litigation. A copy of private respondent’s Complaint is attached as Annex “D”. 10. The Company filed a Motion to Dismiss the Complaint in view of the fact that private respondent is a corporate officer and, thus, the dispute is considered as an intra-corporate controversy, the jurisdiction of which is exclusively vested in the Regional Trial Courts pursuant to Section 25 of the Corporation Code in relation to Section 5.2 of Republic Act No. 8799 or The Securities Regulation Code. A copy of said Motion to Dismiss is attached as Annex “E”,11. Private respondent filed his Comment/Opposition to said Motion to Dismiss, a copy of which is attached as Annex “RF”. 12. In an Order dated 1 August 2016, the Labor Arbiter held in abeyance the resolution of the Company’s Motion to Dismiss and directed the parties to file their respective Position Papers. A copy of Labor Arbiter’s Order is attached as Annex “G. 13. On 14 September 2016, the parties filed their respective Position Papers whereas on 5 October 2016, the parties filed their respective Replies. On 13 October 2016, the parties filed their respective Rejoinders. On 3 November 2016, the Company filed its Sur-Rejoinder. Thus, copies of the foregoing pleadings are attached as Annexes “H” to “N”, respectively. For clarity, the Company emphasized in its pleadings that private respondent voluntarily resigned from employment and thus is not entitled to any separation pay. Further, the Company clarified that private respondent was not at any point subjected to any retrenchment program so as to entitle him to any separation pay. 14. On 16 March 2017, the Labor Arbiter issued a Decision [“Labor Arbiter’s Decision”] dismissing the Complaint of private respondent for lack of merit and declared private respondent not entitled to any separation pay on account of his voluntary resignation from emplcyment. A copy of the Labor Arbiter’s Decision is attached as Annex “O”. 15. On 30 May 2017, the Company received'a copy of private respondent's Memorandum of Partial Appeal, a copy of which is attached as Annex “P”, 16. On 19 June 2017, the Company filed its Opposition to private respondent's Partial Appeal, a copy of which is attached as Annex “Q”, 17. On 18 July 2017, the Company received a copy of the Questioned Decision granting the Appeal of private respondent. Thus, the dispositive portion of the Questioned Decision reads: WHEREFORE, premises considered, the instant Appeal is granted. The Decision dated 16 March 2017is hereby reversed and set aside. Respondent-appellee Cirtek Advanced Technologies and Solutions, Inc., is hereby ordered to pay complainant-appellant the amount of US$205,292.00 ‘or its equivalent in Philippine Currency based on the prevailing rate of exchange asbalance for his unpaid separation pay as well as ten percent(10%) of the award as attorney fees. SO ORDERED A certified true copy of the Questioned Decision is attached as Annex «pe, 18. On 20 July 2017, the Company filed a Motion for Reconsideration of the NLRC Decision, a copy of which is attached as Annex “S”, 19. On 8 August 2017, the Company received a copy of private respondent's Opposition to its Motion for Reconsideration, a copy of which is attached as Annex “T”. 20. On 13 September 2017, the undersigned received a copy of the Questioned Resolution denying the Company's Motion for Reconsideration. A certified true copy of the Questioned Resolution is attached as Annex «u>, 21. There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law except this Petition. Thus, this Petition for Certiorari. GROUNDS PUBLIC RESPONDENT NLRC COMMITTED SERIOUS ERROR AND GRAVE ABUSE OF DISCRETION AS FOLLOWS: T IN GRANTING PRIVATE RESPONDENT’S APPEAL AND IN RULING THAT HE WAS RETRENCHED FROM EMPLOYMENT NOTWITHSTANDING THE CLEAR ABSENCE OF THE ELEMENTS OF RETRENCHMENT0 IN RELYING ON PRIVATE RESPONDENTS UNFOUNDED CONCLUSION THAT HE WAS PAID A PORTION OF HIS SEVERANCE PAY AS A RETRENCHED EMPLOYEE AND IS, THEREFORE, ENTITLED TO THE REMAINING BALANCE UL IN DECLARING THAT PRIVATE RESPONDENT WAS SIMPLY REHIRED AFTER HE WAS RETRENCHED FROM EMPLOYMENT WITHOUT ANY FACTUAL AND BASIS Iv WITHOUT PREJUDICE TO THE FOREGOING ARGUMENTS AND DISCUSSION, IT IS EVIDENT THAT PRIVATE RESPONDENT Is NOT ENTITLED TO ANY SEVERANCE OR SEPARATION PAY CONSIDERING THAT IT IS CLEAR FROM THE EVIDENCE ON RECORD THAT THE SEVERANCE OF HIS EMPLOYMENT WAS DUE TO HIS VOLUNTARY RESIGNATION DISCUSSION Public respondent NLRC committed serious error and grave abuse of diseretion as follows: I. In granting private respondent’s Appeal and in ruling that he was retrenched from employment notwithstanding the clear absence of the elements of retrenchment. 11. In relying on private respondent’s unfounded conclusion that he was paid a portion of his severance pay as a retrenched employee and is, therefore, entitled to the remaining balance.Public respondent NLRC ruled that private respondent was actually a retrenched employee who was simply re-hired after his re:renchment. The Questioned Decision, in pertinent part, states: Complainant’s appeal has merit. After a judicious review of the case records, We found sufficient reason to reverse and set aside the Labor Arbiter’s decision. The Labor Arbiter concluded that complainant was not retrenched because he continued to serve as President of the respondent company until the date of his resignation in November 2015 and due to his failure to show his notice of termination. The records of the case however showed that complainant was indeed retrenched by the respondent company. Primarily, the List of Permanently Terminated Workers Due to Closure/Retrenchment which was submitted by the respondent company to the DOLE Regional Office as its Establishment Termination Report includes complainant’s name and personal details in the32nd item of the list. This report was signed by the respondent company’s Director of Finance and was duly received by the DOLE Regional Office. Clearly, there was an intent by the respondent company to terminate complainant as part of its retrenchment program. Thus, the absence of a Notice of Termination acknowledged by complainant does not militate against his claim, as this is neither the sole nor controlling factor in proving that retrenchment indeed took place, To Our mind, the Termination Report already constitutes an official acknowledgment by the company that complainant is among the list of employees that will be terminated horn service. Clearly, the amount of US$305, 392.00 which the respondent company intends to pay to complainant refers to his separation pay at the rate of his monthly salary of US$16, 068 multiplied by the 19 years of service he rendered to the company. It is also clear that as early as 8May 2015, the respondent company has already advanced the amount of US$100,000.00 to complainant, leaving him entitled to the remaining balance. The evidence is contrary to the Labor Arbiter’s finding that Complainant failed to show bow or for what purpose he received the amount of US$100,000.00. It was clearly the first tranche of payment of his separation pay. The evidence likewise shows that the company acknowledged that it terminated complainant's service during the retrenchment and that it owed him the remaining balance from the total amount of US 305,392.00 [Questioned Decision at 8 to 10]. Thus, public respondent NLRC ruled that private respondent was a retrenched employee for the reascn that his name was supposedly included in the Department of Labor and Employment {“DOLE”] Establishment Employment Report submitted by the Company and was paid an initial amount of US$100,000.00 which according to public respondent NLRC corresponds to a portion of private respondent's severance pay. This Honorable Court can readily take notice of the fact that the foregoing are insufficient to prove that private respondent was a retrenched employee and was subjected to the Company’s retrenchment program. To be clear, private respondent was appointed as President of Remec on 27 August 2005. Remec, as stated, is a company engaged in a manufacturing solutions partner for telecommunications, satellite communications, semiconductor test boards, industrial and automotive equipment in low/mediunyhigh volumes, and high mix applications. For the past years, Remec incurred substantial financial losses. ‘Thus, in 2013, Remec initiated the retrenchment of some of its employees in order to stem its financial hemorrhaging. The foregoing, however, did not stop the continued financial losses of Remec with clients wichdrawing their respective businesses from Remec. In 2014, Remec decided to implement a retrenchment program, this time involving two hundred seventy-two (272) of its employees. As Remec was preparing for the implementation of the retrenchment, Cirtek Electronics Corporation [“Cirtek Electronics Corp.”] bought a majority of the shares of stock of Remec. Remec was thereafter reamed as Cirtek Advanced Technologies and Solutions, Inc., herein respondent-appellee.After Remec changed its corporate name to Cirtek Advanced Technologies and Solutions, Inc., private respondent continued to act as its President. To be clear, private respondent, as President, was not part of the retrenchment program affecting the employees of the Company. Nonetheless, the Company inquired from private respondentif he was also keen on leaving the Company if he is given a separation package. Private respondent, however, refused to be part of the Company’s retrenchment program and insisted that he wanted to continue working as President of the Company. Due to said refusal, private respondent remained with the Company as its President. The supposed fact that private respondent’s name was included in the Establishment Termination Report [See Annex “J” of private respondent’s Position Paper] was, therefore, clearly a clerical error and the best proof of this is the fact that he continued to rencer service as President of the Company beyond the effective date of retrenchment indicated in the said Report. The Company had long explained this clerical error during the proceedings before the Labor Arbiter. Besides, this clerical error was perpetuated by private respondent himself who, as President, directed the inclusion of his name in the Establishment Termination Report even if there was no agreement or direction for him to be included therein. Regardless of the foregoing clarification put forth by the Company during the proceeding below, public respondent NLRC still disregarded said explanation and ruled that “(t)he submission of (private respondent’s) name in the termination report forwarded to the DOLE could not have been a product of mere clerical error... As pointed out by complainant, the company identified the number of retrenched employees as 272. This number would not have been reached if complainant was not intended to be amongst those who wil be retrenched” [Questioned Resolucion 2]. As explained, a clerical error was committed such that the number of retrenched employees was declared to be 272. While private respondent was included in said list and his name, address, position and other personal details were included in the report, the foregoing is not at all conclusive 70 prove that private respondent was indeed a retrenched employee pursuant to a retrenchment program implemented by the Company. In fact, public respondent NLRC failed to identify and pinpoint the general standards or elements needéd a retrenchment program to be valid such that the losses expected are substantial and not merely de minimis in extent; that the expected losses are reasonably imminent such as can be perceived objectively and in good faith by the employer; that the retrenchment is reasonably necessary and likely to effectively prevent the expected losses; and that the imminent losses sought to be forestalled are substantiated [See Edge Apparel, Inc. v. NLRC, G.R. No. 121314, 12 February 1998]. These were inadequately shown in the present case.Further, public respondent NLRC relied on the supposed claim of private respondent that he was paid US$100,000.00 as initial peyment of his “severance pay” and is, thus, entitled to the remaining balance in the amount of US$205,392.00. The lone proof of said liability as unduly appreciated by public respondent NLRC is a copy of a Release Waiver and Quitclaim [“Quitclaim”] submitted by private respondentas Annex “S” of his Rejoinder. To straighten matters and for easy reference, the Company te- attachesin this Motion for Reconsideration the Quitclaim submitted by private respondent as Annex “V”. Notable is the fact that the Quitclaim was unsiged and unnotarized. There was no proof at all that the parties bound themselves to the terms and conditions of the Quitclaim as the same was unsigned. Not_even_private_respondent_signed_ the supposed Qui . Moreover, there was no signature from any Company representative in said Quitclaim to prove that the Company paid private respondent the amount of US$100,000.00 and that it also bound itself to pay private respondentan amount of US$205,392.00. Not only was the Quitclaim unsigned, it was also unnotarized. The indubitable conclusion is that said Quitclaim is only a scrap of paper and should not have been given the least bit of credence by public respondent NLRC. Thus, it is highly irregular that the NLRC decided to uphold said Quitclaim when private respondent did not even sign the Quitclaim; nor was there any Company representative who acknowledged the Quitclaim to be an act and document duly accomplished for and on behalf of the Company. Neither was the Quitclaim subscribed and sworn to before a notary pubdlic.Notably, in Litonjua v. Litonjua [|G.R. Nos. 166299-300, 13 December 2005], the Supreme Court declared as void and without any effect an unsigned document. Likewise, inPrincess Joy General Placement and General Services, Inc. v. Binalla [G.R. No. 197005, 4 June 2014], the Supreme Court declared that an unsigned and unauthenticated document has no probative value.Based on the foregoing rulings, the Quitclaim submitted by private respondent must be strucked down and disregarded as a credible and worthy evidence. Again, it was unsigned even by the party-in-interest, herein private respondent. Thus, there is no proof at all that private respondentagreed to be a part of the retrenchment program,that he, in actuality took part in said retrenchment program and was partially paid with his separation pay. Despite this, public respondent NLRC conveniently counters that “(t)here is no question that the quitclaim was not signed by the parties, including complainant, because the negotiation regarding the payment of complainant’s separation pay did not prosper and eventually led to this litigation” [Questioned Resolution at 2 to 3]. Even public respondent NLRC admits and is aware that there is no Quitclaim signed by the parties so as to show that the Company hasan obligation to pay any separation pay to private respondent. In other words, there is no documen: or contract which prove that the Company bound itself to pay private respondent with any separation pay or money. Therefore, based on the facts of the case and the law relevant to the matter, there exists no obligation on the part of the Company to pay private respondent with any separation pay as he voluntarily resigned from employment, iMoreover, public respondent NLRC even lent credence to the electronic mail [“e-mail”] dated 10 December 2015 submitted by private respondent to the effect that a certain Anthony Albert Buyawe [“Buyawe”], allegedly an officer of the Company sent said e-mail and Quitclaim to private respondent. The foregoing e-mail was not even proved to be a genuine document from the Company and does not even prove that private respondent was separated from the service due to retrenchment. At best the e-mail merely proves that while private respondent may have been offered a separation package should he opt to avail of the retrenchment program of the Company, he, in fact, chose not to join the retrenchment program. Instead, he refused the separation package and stayed with the Company. Such refusal necessarily resulted to him not anymore be covered by the retrenchment program and, consequently, not being entitled anymore to the separation package. Indeed, there was no acknowledgement on the part of the Company that it retrenched private respondent from employment. As in fact, private respondent continued to act as its President even after the Company offered to private respondent an opportunity to take part in the Company’s retrenchment program. Likewise, public respondent NLRC appears to have departed from the rule that retrenchment must be compliant with the requisites in order for the same to be regarded as a valid program. ‘Thus, in Pepsi-Cola Products Phils, Inc. v. Molon [G.R. No, 175002, 18 February 2013], the elements of retrenchment were discussed in this wise: (The employer must prove the requirements for a valid retrenchment by clear and convincing evidence. . . These requirements are: (1) That retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real, or if only expected, are reasonably imminent as __perceived objectively and in good faith by the employer; (2) That the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (3) That the employer pays the retrenched employees separation pay equivalent to one (1) month pay or at least one-half (4) month 12pay for every year of service, whichever is higher; (4) That the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees’ right to security of tenure; and (5) That the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status, efficiency, seniority, physical fitness, age, and financial hardship for certain workers. Public respondent NLRC simply and conveniently assumed that a retrenchment program involving private respondent took place without any reference whether the elements of a retrenchment program as specified above are present in this case. If at all, there is no burden cn the part of the Company to even prove that each and every element enumerated above was met insofar as the case of private respondent is concerned because there was no such retrenchment program that took place involving private respondent, Clearly, in ruling that private respondent is entitled to severance pay, public respondent NLRC was only able to identify two (2) of the elements above, that is pertaining to the submission of an Establishment Employment Report and paying the affected employee his/herseparation pay. In other words, public respondent NLRC conveniently ruled that a retrenchment program was implemented when it even failed to discuss that the requirements of retrenchment in Pepsi-Cola are present in this case. The sweeping generalization and hasty conclusion of public respondent NLRC is unbelievable at most. I. In declaring that __ private respondent was simply rehired after he was retrenched from employment without Public respondent NLRC also ruled that:The fact that complainant was re-hired after a few days from his retrenchment does not render his claim, unmeritorious. The rehiring of ret-enched employees does happen because employers are free to hire any employable individual as a matter of their freedom to run their business [Questioned Decision at 10}. Public respcndent NLRC simply concluded that private respondent was, therefore, a re-hired employee for her was retrenched from employment and was still rehired by the Company. Again, this is serious error. Private respondent continued to discharge the duties and responsibilities of a President. There was no severance, in whatsoever form, of private respondent’s relationship with the Company except when he resigned from employment. It is rather unfortunate that while the elements of retrenchment were unavailing in this case, for the reason that there was no such retrenchment insofar as private respondent is concerned, public respondent NLRC further found that private respondent was rehired by the Company. To be clear, no such rehiring took place. In fact, private respondent failed to prove and present evidence that he wes rehired. There can be no such evidence for the reason that no rehiring ever took place. Again, it is essential to reiterate that private respondent continued to discharge the duties and responsibilities of a President until his voluntary resignation from employment. Even public respondent NLRC failed to specify its basis, if any, to support its finding that a severance of relationship and a rehiring took place. Said failure to cite any basis for this flawed conclusion is an obvious case of grave abuse of discretion. As held in Lim v, Equitable PCI Bank [G.R. No. 183918, 15 January 2014], “(a)llegations. . . must be proved by clear, positive, and convincing evidence by the party alleging it. It should not be presumed but must be established”. Likewise, insofar as decisions of courts are concerned, it is required that: A decision that does not conform to the form and substance required by the Constitution and the law is void and deemed legally inexistent. To be valid, decisions should comply with the form, the procedure 14and the substantive requirements laid out in the Constitution, the Rules of Court and relevant circulars/orders of the Supreme Court. . . The decision shall be in writing, personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based. . [Velarde v. Social Justice Society, G.R. No. 159357, 28 Apri! 2004]. Likewise, “(a) decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is especially prejudicial to the losing party. . .” [San Jose v. NERC, G.R. No. 121227, 17 August 1998]. In this case, there is ample and more than sufficient reason to reconsider the Questioned Decision as there is no basis in fact or by law to support the conclusions of public respondent NLRC that private respondent was subjected to a retrenchment programa and was re-hired by the Company. Said conclusions were not even supported by evidence on record and remain mere opinions which have no probative value. ‘Thus, it is rather unfair and at the height of injustice to direct the Company to pay private respondent with his severance pay despite the fact that no retrenchment program involving private respondentever took place and considering further that private respondent resigned from his position at the Company. IV. Without prejudice to the foregoing arguments and discussion, it is evident that private respondent is not entitled to any severance or separation pay considering that it is clear from the evidence on record that the severance of his employment was due to his voluntary resignat In the Questioned Decision and Resolution, public respondent NLRC failed to address the indubitable fact that private respondent tendered his resignation through a resignation letter dated 12 October 2015. His resignation letter, in pertinent part, states:Thereby tender my resignation from my current post as President of CIRTEK Advanced Technologies and Solutions, Inc. effective November 15, 2015. With much thought and other consultation with my family, I have come to this decision due to health and personal reasons [Annex “C”] (Emphasis supplied). For clarity, private respondent was not separated from employment due to retrenchment, In fact he resigned and as a consequence, he is not entitled to any retirement pay. Thus: Resignation — the formal pronouncement or relinquishment of a position or office — is (a) volun:ary act... where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, ané he has then no other choice but to disassociate himself (from the Company) {Mendoza v. HMS Credit Corp., G.R. No. 187232, 17 April 2013]. Moreover, Resignation is (a) voluntary act. . . a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to dissociate oneself (from the Company). It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. . . [BMG Records (Phils.), Inc. v. Aparecio, G.R. No. 153290, 5 September 2007). “(One) who voluntarily resigns is not entitled to separation pay” [“CIC Trading, Inc. v. NLRC, G.R. No. 115884, 20 July 1995] (Emphasis supplied). Said rule was also reiterated in Hanford Philippines, Inc. v. Joseph [G.R. No. 158251, 31 March 2005]. Thus:It is well to note that there is no provision in the Labor Code which grants separation pay to (one) who voluntarily resign(s). Under the Code, separation pay may be awarded only in cases when the termination of employment is due to: (a) installation of labor saving devices, (b) redundancy, (c) retrenchment, (d) closing or cessation of business operations, (e) disease of an employee and his continued employment is prejudicial to himself or his co-employees, or (f) when an employce is illegally dismissed but reinstatement is no longer feasible. In Hinatuan Mining Corporation and/or the Manager versus National Labor Relations and Margo Batister,we held that. . . (one) who voluntarily resigns is not entitled to separation pay. [Emphasis supplied]. It was also held in Bilbao v. Saudi Arabian Airlines [G.R. No. 183915, 14 December 2011] that due to private respondent's voluntary resignation, he is actually not entitled to any separation pay benefits. The foregoing was also the rule in Alfaro v. Court of Appeals [G.R. No. 140812, 28 August 2001] that “separation pay need not be paid to (one) who voluntarily resigns”[Emphasis supplied]. Public respondent NLRC failed to address the resignation of private respondent, which fact private respondent did not even contest. Verily, said resignation has effects, that is the severance of private respondent's relationship with the Company. Further, the law and jurisprudence on the matter do not even direct the payment of separation pay to an employee who resigned from employment. In consideration of the foregoing, the Labor Arbiter properly ruled and appreciated that: We find for the respondents. First, is the alleged retrenchment. While it may be true that complainant’s name was among those listed in the “Establishment Termination Report”, he was not issued an individual notice of retrenchment which is the operative act of dismissal. The reason he wanted to continue his employment as President of the respondent company. We give more credence to this assertion of the 7respondent since this conforms to logic and common human experience. If it was true that he was indeed included in the retrenchment, then there would be no reason for him not to receive the notice of retrenchment which he alleged, “at the time, complainant did not “eel the need to acknowledge receipt of the termination letter.” (underscoring ours) There is no point in not acknowledging the termination notice, unless he intended to continue working for the respondent, as the latter maintained, Be that as it may, the fact that complainant continued to render service to respondent after the effectivity of retrenchment, on December 28, 2014 without the benefit of re-engagement appointment, as complainant claims, clearly shows that he was never among the retrenched employees of respondent. He never lost his employment in December 28, 2014 and therefore, was never re-engaged in January 2,2015. This being the case, there was no reason to pay him separation pay since he was not retrenched. Tt goes against logic to think that one has been retrenched and at the same time, continues to serve the employer. His contention that he received One Huncred Thousand US Dollar as partial payment of his separa‘ion pay also goes diametrically opposed to reason. If he has been retrenched and paid separation pay there is no more reason to continue working. Besides and more importantly, complainant utterly failed to explain how payment of such amount was made to him and by whom. Simply stated, he does not prove how he received the alleged partial payment. The same is true with respect to the exchange cf e- mails between complainant and Newman. (Annex O, P, and Q, supra). These exchange of e-mails do not show complainants entitlement to separation pay. Neither do these e-emails prove his averment that his severance pay had been remitted by Remec to respondent Cirtek. On the other hand, complainant’s resignation, all the more did not help his claim for separation pay. An employee who voluntarily resigns is not entitled to separation pay unless otherwise stipulated in an employment contract or collective bargaining agreement, or sanctioned by established employer practice or policy. The Labor Code is devoid of any provision which grants separation pay to employees who voluntarily resign Neither was there anything in the record which shows 18that, in the instant case, there is a collective bargaining agreement or any other agreement or established company policy concerning the payment of separation pay to employees who resign. (CIC Trading, Inc.v. NLRC, et al., G. R. No, 115884 July 20, 1995) ‘What is also confusing is complainant’s demand in his resignation letter. He was not after any separation package pursuant to his alleged retrenchment, but was after what he calls “retirement pay”, thus: “October 12, 2015 Mr. Jerry Liu Chairman of the Board Cirtek Electronics International Corp. Laguna, Philippines NOTICE OF RESIGNATION Dear Sir Jerry: Thereby tender my resignation from my current post as President of Cirtek Advanced Technologies and Solutions, Inc. effective November 15, 2015. With much thought, and after consultation with my family, | have come to this decision due to health and personal reasons, In this regard(,) I would like to bring to your attention the balance of my retirement pay which was due (to) me when Moseley completed the acquisition of Remec Broadband Wireless LLC in May 2015 in the amount of $205,292.00. Because of my resignation(,) 1 would like to request to get paid immediately. I would be happy to meet with you at your convenience to discuss the transition of my duties to my successor. I thank you for your full understanding and kind consideration. Very respectfully yours, (signed) Domingo B. Bonifacio Ce: 19[Labor Arbiter’s Decision at 10 to 14]. notice of the fact that the foregoing Decision of the Labor Arbiter is more consistent with the law and jurisprudence on the matter over the baseless and convenient reasoning of public respondent NLRC. Honorable Court must review the basis and grounds relied upon by public respondent NLRC in declaring that despite private respondent's voluntary Mr. Alvin Guzon Mr. Tony Buyawe Ms. MiletCruzada If he is asking for the balance of his retirement pay, the logical inference is, he has been retired from the service. However, he did not explain whom among his several employees caused his retirement and when. This is important because this would certainly establish who should pay. Complainant, also, docs not dispute the Retirement Plan Rules and Regulations on Severance Benefit of Remec, respondent company’s previous corporate incamation, which states that only “a)member whe in involuntarily separated by the Company with at least eight(8) but less than ten (10) years of Credited Service due to a retrenchment program or redundancy or for causes not due to his own fault for every ycar of Credited Service on a percentage of his normal retirement benefit for ten (10) years of Credited Service . . “ Since complainant was not involuntarily separated, but voluntarily resigned, it would appear that the said retirement plan likewise cannot apply to him. An even assuming that complainant intendeé to retire, which given his age at 62, he may already avail of, he should have applied for it with respondent and not tender his resignation. Thus, complainant’s claim for separation pay, interests and attorney's fees must, perforce, fail. WHEREFORE, judgment is hereby rendered DISMISSING the complainant for lack of merit. SO ORDERED resignation from employment, he is still entitled to separation pay. 20 This Honorable Court can take Therefore, thisALLEGATIONS IN SUPPORT OF THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER/WRIT OF PRELIMINARY INJUNCTION The Company respectfully repleads the foregoing submissions by reference and further states that: In issuing the Questioned Decision and Resolution, public respondent NLRC clearly acted with undue haste and grave abuse of discretion amounting to lack of jurisdiction that render the same patently null and void. A void judgment is not entitled to the respect accorded to a valid judgment, but may’ be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it [Republic v. Court of Appeals, G.R. No. 127969, 25 June 1999]. “No legal rights can emanate from a resolution that is null and void” [Fortich v. Corona, G.R. No. 131457, 19 August 1999]. The Company is entitled to the reliefs prayed for, and the whole or part of which consists in restraining further proceedings that private respondent and public respondent NLRC and their representatives/agents will pursue to implement the Questioned Decision and Resolution. Unless this Honorable Court gives due course to this Petition and immediately issues a temporary restraining order and/or writ of preliminary injunction, the Company will suffer grave and irreparable damage and prejudice in that it will be constrained to bear the effects of a manifestly void order and proceedings. Indeed, if the patently void judgment is executed and, on appeal, the same is reversed, damage may arise which cannot be fully compensated notwithstanding remedies for restitution [See Maceda, Jr. v. Development Bank of the Philippines, G.R. No. 135128, 26 August 1999]. ‘The Questioned Decision and Resolution are patently void for having been issued with grave abuse of discretion and/or in excess of jurisdiction, at the very least. The power of this Honorable Court to review the same is imperative The Company is ready and willing to post the necessary bond in a reasonable amount as may be determined by this Honorable Court. 21PRAYER WHEREFORE, it is respectfully prayed that: 1. that a Temporary Restraining Order and/or Writ of Preliminary Injunction be immediately issued by this Honorable Court enjoining the National Labor Relations Commission and/or its agents or officers from further conducting proceedings; and a the 30 June 2017 Decision and the 31 August 2017 Resolution of the National Labor Relations Commission be reversed and set aside and a new one rendered affirming the 16 March 2017 Labor Arbiter’s Decision in this case. Other reliefs, just and equitable are likewise prayed for. Pasig City for City of Manila, 2 October 2017. LAGUESMA MAGSALIN CONSULTA & GASTARDO Counsel for Petitioner Unit 705 Prestige Tower, F. Ortigas, Jr. Road OrtigasCenter, Pasig City By: CARLOS LUIS L. FERNANDEZ, PTR No. 2362240; 01-07-17; Pasig City TBP No. 1057620; 01-05-17; Quezon City Roll No. 45321 MCLE Compliance No. V-0020565 20 April 2016 QU CHERRYLYN C. NAVARRA PTR No. 2362245; 01-07-17; Pasig City IBP No. 1057624; 01-05-17; Makati Roll No. 62588 MCLE Compliance No. V-0020688 20 April 2016 22Copy furnished: DOMINGO BONIFACIO Private Respondent 108 PILI Drive, Ayala Alabang Village Muntinlupa City GERARDO ERESE, ESQ. Counsel for Private Respondent 23" Floor, Corporate Center 139 Valero Street, Salcedo Village, Makati City NATIONAL LABOR RELATIONS COMMISSION Public Respondent PPSTA Building, Banawe Street Quezon City JUSTIFICATION Petitioner respectfully complies with Section 11, Rule 13 of the Rules of Court and manifests that copies of this Petition for Certiorari were served by registered mail for reasons of economy and the distance involved. DADA AANA CHERRYLYN C. NAVARRA. 23SECRETARY’S CERTIFICATE 1, Michael Stephen T. Liu , Filipino, of legal age and with officeaddress at 116 East Main Avenue, Phase V, Sez Laguna 166 East Main Avenue, Phase V, SEZ Laguna Technopark, Bifian, Laguna, depose and state: 1. Lam the duly elected Corporate Secretary of CIRTEK ADVANCED ‘TECHNOLOGIES SOLUTIONS INC.. [the “Company”, a corporation organized and existing under the laws of the Republic of the Philippines. 2. Ata special meeting of the Board of Directors held on September 25, 2017 , during which a quorum was present, the following resolutions were unanimously adopted and approved: “RESOLVED, that the Corporation _ authorize TO_ SUA TD » to represent it in this Petition for Certiorari to contest the 30 June 2017 Decision and the 31 August 2017 Resolution of the National Labor Relations Commission in. “Domingo Bonifacio v. Cirtek ATS, et al.” [NLRC RAB Case No. IV-04-000603-16-L/ NLRC LAC No. 06-002103-17Jor in other Petitions, Appeals before the Court of Appealsor Supreme Court and to execute and sign all documents necessary for this purpose including the Verification and Certification of Non-Forum. Shopping.” IN WITNESS WHEREOF, I have hereunto set my hand and signed thiQT 02 2017 day of 2017 PASIGCIZ¥ [AEL STEPHEN LIU Corporate Secretary SUBSCRIBED AND SWORN to before me this day ACT 02 2017 2017 at ives Cert, affiant exhibiting to me hisher cee eT identification with number _ 8 40U4,i¢ issued on at _— valid until 2 Se?» gold CHERRYLYN c. NAVARRA posse, ‘a catratie) Doc. No. _ 284 | ponies Page No. _2 Book No. __ 53 ELE Conplance no, 0020608 Series of 2017. 706 Prosige Tower f Sons ic Rood ier Be Fone esr Seo un eemaltinegaw@yanoecom phVERIFICATION AND CERTIFICATIO! 1, ROBERTO JUANCHITO DISPO .Filipine, of legal age and with office address atl 16 East Main Avenue, Phase V, SEZ Laguna Technopark, Bifian, Laguna, depose and state: 1. I am the Chief Executive Officer of CIRTEK ADVANCED TECHNOLOGIES SOLUTIONS, INC. [the “Company”], petitionerin the above- captioned case. 2. 1am authorized to represent the Company in this ease. A copy of the Secretary’s Certificate to this effect is attached, 3. L hereby certify that the Company has not commenced any other actions or proceedings involving the same or similar issues before the Supreme Court, this Honorable Court, or any other tribunal or agency, and that to the best of my knowledge no such action or proceedings is pending before the Supreme Court, this Honorable Court, or any other tribunal or agency. 4, Should I leam that any other similar action has been filed or is pending, I undertake to promptly inform this Honoratle Courtof that fact within five (5) days from notice. ROBERTO JUANCHITO DISPO. Chief Executive Officer SUBSCRIBED AND SWORN TO before me nig CT 02 ag? of 2017 at P&SEO CS aefiant exhibiting to me his/her 46 _. as identification with number __33-S5u7y-2-6 _ valid until Doc. No. Bo CRERRVLYN ©. NAVARRA Page No. : Book No. oe Series of 2017. Emaitinegtaw@yahoo.com.phREPUBLIC OF THE PHILIPPINES ) VASES CITY 88. FFIDAVIT OF SERVICE 1, JUAN L. CHAVEZ, Special Messenger of LAGUESMA MAGSALIN CONSULTA & GASTARDO Law Offices, with office address at 705 Prestige Tower, Emerald Avenue, Ortigas Center, Pasig City, after being duly swom, depose and say that: I served a copy of the Petition in the case entitled “Cirtek Advanced Technologies and Solutions, Inc. vs. Domingo B. Bonifacio and National Labor Relations Commission”, docketed as CA-GR. SP No. by Registered Mail to: 1, DOMINGO BONIFACIO Private Respondent 108 Pili Drive, Ayala Alabang Village Muntinlupa City 2. GERARD ERESE, ESQ. ‘Counsel for Private Respondent 23" Floor, Corporate Center 139 Valero Street, Salcedo Village Makati City 3. NATIONAL LABOR RELATIONS COMMISSION Public Respondent PPSTA Building, Banawe Street Quezon City on 4" day of October 2017 at Qa is Post Office, as evidenced by Registry Receipt No. ACE GW HX GO e6y and YAR 40 Ce with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. JUAN if CHAVEZ Gr fant SUBSCRIBED AND SWORN to before me this 4" day of October’ 2017 affiant exhibiting to me his Social Security System Identification No. 03-4042758-9. Doo. No. _ 44h. + Page No. #5 Book No.__J- Series of 2017. uence #5007068,ok REPUBLIC OF THE PHILIPPINES COURT OF APPEALS eae MANILA Sixth Division CIRTEK ADVANCED TECHNOLOGIES AND SOLUTIONS, INC,, Petitioner, -versus- CA G.R. SP No. 152839 DOMINGO B. BONIFACIO AND THE NATIONAL LABOR RELATIONS COMMISSION, Respondents. x EXTREMELY URGENT MOTION TO RESOLVE PETITION, WITH REITERATIVE PRAYER TO ISSUE TEMPORARY RESTRAINING ORDER Petitioner CIRTEK ADVANCED TECHNOLOGIES AND SOLUTIONS, INC. [the “Company”], by counsel, respectfully states: 1. On 4 October 2017, the Company filed the Petition for Certiorari before this Honorable Court to contest the 30 June 2017 Decision [“Questioned Decision”] and the 31 August 2017 Resoluticn [“Questioned Resolution”} of public respondent National Labor Relations Commission [“NLRC”] in “Domingo B. Bonifacio y. Cirtek Advanced Technologies Solutions, Inc. amd Jerry Liu” (From NLRC NCR Case No. 4-00603-16-L/ NERC LAC No. 06-002103-17]. In said Petition, the Company was able to discuss and prove that public respondent NLRC clearly acted without or in excess of its jurisdiction and/or with grave abuse of discresion, Thus, the grounds relied upon by the Company in said Petition were as follows: GROUNDS, PUBLIC RESPONDENT NLRC COMMITTZD SERIOUS ERROR AND GRAVE ABUSE OF DISCRETION AS FOLLOWS: ALS MAGESALIN CONSULTA, & GASTARDO LAW OFFICES »qT IN GRANTING PRIVATE RESPONDENT'S APPEAL AND IN RULING THAT HE WAS. RETRENCHED — FROM — EMPLOYMENT. NOTWITHSTANDING THE CLEAR ABSENCE OF THE ELEMENTS OF RETRENCHMENT ae IN RELYING ON PRIVATE RESPONDENT'S UNFOUNDED CONCLUSION THAT HE WAS PAID A PORTION OF HIS SEVERANCE PAY AS A RETRENCHED EMPLOYEE AND IS. THEREFORE, ENTITLED TO THE REMAINING BALANCE i IN DECLARING THAT PRIVATE RESPONDENT WAS SIMPLY REHIRED AFTER HE WAS RETRENCHED FROM EMPLOYMENT WITHOUT ANY FACTUAL AND BASIS Iv WITHOUT PREJUDICE TO THE FOREGOING ARGUMENTS AND DISCUSSION, IT IS EVIDENT THAT PRIVATE RESPONDENT IS. NOT ENTITLED TO ANY SEVERANCE OR SEPARATION PAY CONSIDERING THAT IT 1S CLEAR FROM THE EVIDENCE ON RECORD THAT THE SEVERANCE OF HIS. EMPLOYMENT WAS DUE TO HIS VOLUNTARY RESIGNATION 2. Based on the foregoing, public respondent NLRC committed serious errors in reversing and setting aside the Decision of the Labor Arbiter by granting private respondent his claim for Separation/severance pay since private respondent was not retrenched from employment as shown by the clear absence of the elements of retrenchment in this case. Further, the Company reiterated in said Petition that private respondent is not entitled to any severance or separation pay considering that he veluntary resigned from employment. Hence, the Company respectfillly pleads this Honorable Court to correct said errors and arrest the ill effects of the grave abuse of discretion and improper appreciation of facts and the law committed by the NLRC.Moreover, in issuing the Questioned Decision and Resolution, public respondent NLRC clearly acted with undue haste and grave abuse of discretion amounting to lack of jurisdiction that render the same patently null and void. Thus: A void judgment is not entitled to the respect accorded to a valid judgment, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it [Republic v. Court of Appeals, G.R. No. 127969, 25 June 1999] 3, “No legal rights can emanate from a resolution that is null and void” [Fortich v, Corona, G.R. No. 131457, 19 August 1999]. The Company is entitled to the reliefs prayed for, and the whole or part of which consists in restraining further proceedings that private respondent and public respondent NLRC and their representatives/agents will pursue to implement the Questioned Decision and Resolution. ca Notably and unless this Honorable Court resolves the Petition within the soonest possible time, gives due course to the Petition and immediately issues a Temporary Restraining Order [“TRO”] and/or writ of preliminary injunction, the Company will suffer grave and irreparable damage and prejudice in that it will be constrained to bear the effects of a manifestly void order and proceedings. Indeed, if the patently void judgment is executed and, on appeal, the same is reversed, damage may arise which cannot be fully compensated notwithstanding remecies for restitution [See Maceda, Jr. v. Development Bank of the Philippines, G.R. No. 135128, 26 August 1999]. 5. Moreover, the urgency of immediate action from this Honorable is evident due to the fact that on 16 November 2017, the Company received a copy of private respondent’s Motion for Execution to which it filed an Opposition on 28 November 2017. Surprisingly, without awaiting for the case to be scheduled for a pre-execution conference, the private respondent again filed an Urgent Second Motion for Issuance of Writ of Execution that the Company received on 7 December 2017. The Company is, therefore, concerned that private respondent's acts of filing several Motions for Execution without awaiting that the case be set for a pre- execution conference is an attempt to railroad the execution of the judgment in his favor notwithstanding the evident errors committed by public respondent NLRC. Accordingly, in the interest of Justice, the Company is constrained to humbly and respectfully request that this Honorable Court act with urgent dispatch in resolving the Company’s application for TRO and/or in resolving the main case at the soonest possible time. 36. The Questioned Decision and Resolution are patently void for having been issued with grave abuse of discretion and/or in excess of jurisdiction, at the very least. The power of this Honorable Court to review the same is imperative. 7. The Company is ready and willing to post the necessary bond in a reasonable amount as may be determined by this Honorable Court PRAYER WHEREFORE, it is respectfully prayed that: 1. the Petition for Certiorari be resolved within the soonest possible time; 2. that a Temporary Restraining Order and/or Writ of Preliminary Injunction be immediately issued by this Honorable Court enjoining the National Labor Relations Commission and/or its agents or officers from further conducting proceedings; and ce the 30 June 2017 Decision and the 31 August 2017 Resolution of the National Labor Relations Commission be reversed and set aside and a new one rendered affirming the 16 March 2017 Labor Arbiter’s Decision in this case. Other reliefs, just and equitable are likewise prayed for, Pasig City for City of Manila, 8 December 2017 LAGUESMA MAGSALIN CONSULTA & GASTARDO Counsel for Petitioner Unit 705 Prestige Tower, F. Ortigas, Ir. Road OrtigasCenter, Pasig City By: CARLOS LUIS L. FERNANDEZ PTR No. 2362240; 01-07-17; Pasig City IBP No. 1057620; 01-05-17; Quezon City Roll No, 45321 MCLE Compliance No. V-0020565 20 April 2016CHERRYLYN C. NAVARRA PTR No. 2362245; 01-07-17; Pasig City IBP No. 1057624; 01-05-17; Makati Roll No. 62588 MCLE Compliance No. V-0020688 20 April 2016 Copy furnished: GERARDO ERESE, ESO. Counsel for Private Respondent 23" Floor, Corporate Center 139 Valero Street, Salcedo Village, Makati City NATIONAL LABOR RELATIONS COMMISSION Public Respondent PPSTA Building, Baniawe Street Quezon City JUSTIFICATION Petitioner respectfully complies with Section 11, Rule 13 of the Rules of Court and manifests that copies of this Extremely Urgent Motion to Resolve Petition with Reiterative Prayer to Issue Temporary Restraining Order were served by registered mail for reasons of economy and the distance involved. CHERRYLYN C. NAVARRAREPUBLIC OF THE PHILIPPINES ) PASIG CITY )SS. AFFIDAVIT OF SERVICE I, JUAN L. CHAVEZ, Messenger of LAGUESMA MAGSALIN CONSULTA, & GASTARDO LAW OFFICES, with office address at Unit 705 Prestige Tower, Emerald Avenue, Ortigas Center, Pasig City, after being duly sworn, depose and say that: | served copies of the Extremely Urgent Motion to Resolve Petition with Reiterate Prayer to Issue Temporary Restraining Order in the case entitled “CIRTEK ADVANCED TECHNOLOGIES AND SOLUTIONS, INC. vs. DOMINGO BONIFACIO AND THE NATIONAL LABOR RELATIONS COMMISSION”, docketed as CA G.R. SP NO. 152839 by Registered Mail to: 1, GERARDO ERESE, ESQ. Counsel for Private Respondent 23°° Floor, Corporate Center 139 Valero St,, Salcedo Village Makati City 2, NATIONAL LABOR RELATIONS COMMISSION Public Respondent PPSTA Building Banawe St., Quezon City on 8" day of December 2017 at the Ortigas Post Office, as evidenced by Registry Receipt Nos. V9G Py ine IF tye 5 and ih iatutions fo The posimasir to Fetaca the mail to the sender after ten (10) days if undelivered. JUAX L. CHA’ Affiant SUBSCRIBED AND SWORN to before me this 8" Gay of December 2017, affiant exhibiting to me his Social Security System Identi‘ication No, 03-4042758-9. Doc. No. _ 53 ; Page No. _10l¢ + Book No__I_ 3 Series of 2017, {a se, Road ai ci Sapte cemalkimégiaweyonoo.com phfoal {Viewer REPUBLIC OF THE PHILIPPINES COURT OF APPEALS 2018 JAN 25 PHU O07 MANILA LAGUESMA MAGSALN Sixth Division & GASTARDO- Law OF ae CIRTEK ‘ADVANCED ANNEX - 3. TECHNOLOGIES AND SOLUTIONS, INC, Petitioner, -versus- CA G.R. SP No. 152839 DOMINGO B. BONIFACIO AND THE NATIONAL LABOR RELATIONS. COMMISSION, Respondents. REITERATIVE URGENT MOTION TO RESOLVE PETITION WITH PRAYER TO ISSUE TEMPORARY RESTRAINING ORDER Petitioner. CIRTEK ADVANCED TECHNOLOGIES AND SOLUTIONS, INC. [the “Company”}, by counsel, respectfully requests leave of court and begs the kind indulgence cf this Honorable Court, as it reiterates its Urgent Motion, and in-support thereof, states: 1, On 4 October 2017, the Company filed the Petition for Certiorari before this Honorable Court to contest the 30 June 2017 Decision [*Questioned Decision”] and the 31 August 2917 Resolution [“Questioned Resolution”] of public respondent National Labor Relations Commission C'NLRC"] in “Domingo B. Bonifacio v. Cirtek Advanced Technologies Solutions, Inc. amd Jerry Liu” [From NLRC NCR Case No. 4-00603-16-L/ NLRC LAC No. 06-002103-17]. In said Petition, the Company was able to discuss and prove that public respondent NLRC clearly acted without or in excess of its jurisdiction and/or with grave abuse of discretion. ‘Thus, the grounds relied upon by the Company in said Petition were as follows:ae GROUNDS, PUBLIC RESPONDENT NLRC COMMITTED SERIOUS ERROR AND GRAVE ABUSE OF DISCRETION AS FOLLOWS: 1 IN GRANTING PRIVATE RESPONDENT'S APPEAL AND IN RULING THAT HE WAS RETRENCHED FROM. EMPLOYMENT NOTWITHSTANDING THE CLEAR ABSENCE OF THE ELEMENTS OF RETRENCHMENT ie IN RELYING ON PRIVATE RESPONDENT'S UNFOUNDED CONCLUSION THAT HE WAS PAID A PORTION OF HIS SEVERANCE PAY AS A RETRENCHED EMPLOYEE AND Is, THEREFORE, ENTITLED TO THE REMAINING BALANCE, Th IN DECLARING THAT PRIVATE RESPONDENT WAS SIMPLY REHIRED RHE WAS RETRENCHED FROM EMPLOYMENT WITHOUT ANY FACTUAL AND BASIS IV WITHOUT PREJUDICE TO THE FOREGOING ARGUMENTS AND DISCUSSION, IT IS EVIDENT THAT PRIVATE RESPONDENT IS NOT ENTITLED TO ANY SEVERANCE OR SEPARATION PAY CONSIDERING THAT IT IS CLEAR FROM THE EVIDENCE ON RECORD THAT THE SEVERANCE OF HIS EMPLOYMENT WAS DUE TO HIS VOLUNTARY RESIGNATION Based on the foregoing, public respondent NLRC committed serious errors in reversing and setting aside the Decision of the Labor Arbiter and granting private respondent his claim for separation/severance pay since private respondent was not retrenched from employment as shown by the clear absence of the elements of retrenchment in this case. Further, the Company reiterated in said Petition that private respondent is not entitled to any severance or separation pay considering that he voluntary resigned from employment. Hence, the Company respectfully pleads this Honorable 2Court to correct said errors and arrest the ill effects of the grave abuse of discretion and improper appreciation of facts and the law committed by the NLRC. 3. Moreover, in issuing the Questioned Decision and Resolution, Public respondent NLRC clearly acted with undue haste and grave abuse of discretion amounting to lack of jurisdiction that render the same patently null and void. Thus: A void judgment is not entitled to the respect accorded to a valid judgment, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it [Republic v. Court of Appeals, G.R. No. 127969, 25 June 1999], 3. “No legal rights can emanate from a resolution that is null and void” [Fortich v. Corona, G.R. No. 131457, 19 August 1999]. The Company is entitled to the reliefs prayed for, and the whole or part of which consists in restraining further proceedings that private respondent and public tespondent NLRC and their representatives/agents will pursue to implement the Questioned Decision and Resolution 4, Notably, unless this Honorable Court resolves the Petition within the soonest possible time, gives due course to the Petition and immediately issues a Temporary Restraining Order [“TRO”] and/or writ of preliminary injunction, the Company will suffer grave and irreparable damage and prejudice in that it will be constrained to bear the effects of a manifestly void order and proceedings. Indeed, if the patently void Judgment is executed and, on appeal, the same is reversed, damage may arise which cannot be fully compensated notwithstanding remedies for restitution [See Maceda, Jr. v. Development Bank of the Philippines, G.R. No. 135128, 26 August 1999] 5. On 8 December 2017, the Company filed an Ex:remely Urgent Motion to Resolve Petition with Reiterative Prayer to Issue Temporary Restraining Order where in view of the urgency of immediate action from this Honorable is evident due to the fact that on 16 Novernber 2017, the Company received a copy of private respondent’s Motion for Execution to which it filed an Opposition on 28 November 2017, copies of the Motion for Execution and the Company’s Opposition are attached as Annexes “1” and “2, respectively. Surprisingly, without awaiting for the case to be Scheduled for a pre-execution conference, the private respondent again filed an Urgent Second Motion for Issuance of Writ of Execution that the 3Company received on 7 December 2017, a copy of which is attached as Annex “3”. The Company is, therefore, concerned that private respondent's acts of filing several Motions for Execution without awaiting that the case be set for a pre-execution conference is an attempt to railroad the execution of the judgment in his favor notwithstanding the evident errors committed by public respondent NLRC. 6, On 18 January 2018, a pre-execution conference was conducted before the Office of Labor Arbuter Generoso V. Santos. During the pre- execution conference of the case, the Company through the undersigned counsel manifested the need to consult the Company first due to the pendency of this Petition for Certiorari and check whether or not there is a Possibility of settlement. However, private respondent, without any justified reason, rejected outright any resetting of the conference on a later date and moved that all pending incidents be submitted for resolution. Clearly, he is trying to railroad the execution of the judgment award and thereby render the proceedings in the instant Petition moot and academic. A copy of the Minutes of the 18 January 2018 pre-execution conference is attached as Annex “4”, 7. Indeed, it would be difficult, if not impossible to recover any amount that may be released to private respondent should execution proceedings ensue despite the glaring errors committed by public respondent NLRC in rendering its Decision and Resolution. In consideration of the foregoing, it would be unfair and unjust at this point to execute the judgment award as it would be difficult, if not impos: le, for the Company to recover from private respondent in the event that this Honorable Court reverses and sets aside the Decision and Resolution of public respondent NLRC. It must be stressed that the subject of the execution is the monetary award in favor of private respondent representing the unexpired portion of her contract in the amount of US$ 205,292.00. Thus, it would necessarily cause irreparable damage to the Company should the judgment award be not recovered from private respondent in the event that this’ Honorable Court reverses and sets aside the Decision and Resolution of public respondent NLRC. 8. Accordingly, in the interest of justice, the Company is constrained to humbly and respectfully reiterate its request that this Honorable Court act with urgent dispatch in resolving the Company's application for TRO and/or in resolving the main case at the soonest possible time. 9. The Decision and Resolution of public respondent NLRC are patently void for having been issued with grave abuse of discretion and/or in excess of jurisdiction, at the very least. The power of this Honorable Court to review the same is imperative.10. ‘The Company is ready and willing to post the necessary bond in a reasonable amount as may be determined by this Honorabie Court. PRAYER WHEREFORE, it is respectfully prayed that: 1, the Petition for Certiorari be resolved within the soonest possible times 2. that a Temporary Restraining Order and/or Writ of Preliminary Injunction be immediately issued by this Honorable Court enjoining the National Labor Relations Commission and/or its agents cr officers from further conducting proceedings; and 3. the 30 June 2017 Decision and the 31 August 2017 Resolution of the National Labor Relations Commission be reversed and set aside and a new one rendered affirming the 16 March 2017 Labor Arbiter’s Decision in this case. Other reliefs, just and equitable are likewise prayed for. Pasig City for City of Manila, 25 January 2018. LAGUESMA MAGSALIN CONSULTA & GASTARDO Counsel for Petitioner Unit 705 Prestige Tower, F. Ortigas, Jr Road OrtigasCenter, Pasig City By: CARLOS LUIS. \/FERNANDEZ, PTR No. 3897093; 01-09-18; Pasig City IBP No. 024389; 01-08-18; Quezon City Roll No. 45321 MCLE Compliance No. V-0020565 20 April 2016PTR No. 3723693; 01-06-18; Pasig City IBP No. 024392; 01-08-18; Makati Roll No, 62588 MCLE Compliance No. V-0020688 20 April 2016 Copy furnished: GERARDO ERESE, ESQ. Counsel for Private Respondent Unit 708, 7" Floor, The Infinity Bonifacio Global City, Taguig NATIONAL LABOR RELATIONS COMMISSION Public Respondent PPSTA Building, Banawe Street Quezon City JUSTIFICATION Petitioner respectfully complies with Section 11, Rule 13 of the Rules of Court and manifests that copies of this Reiterative Urgent Motion to Resolve Petition with Reiterative Prayer to Issue Temporary Restraining Order were served by registered mail for reasons of economy and the distance involved. CHERRYLYN C. NAVARRAREPUBLIC OF THE PHILIPPINES ) PASIG CITY )SS. AFFIDAVIT OF SERVICE 1, ABRAHAM D.V. IGLESIAS, ‘Special Messenger of LAGUESMA MAGSA\ LIN CONSULTA & GASTARDO Law Offices, with office address at 705 Prestige Tower, Emerald Avenue, Ortigas Center, Pasig City, after being duly sworn, depose and say that: served copies of the Reiterative Urgent Motion to Resolve Petition with Reiterative Prayer to Issue Temporary Restraining Order in the ease entitled “Cirtek Advanced Technologies and Solutions, Inc., vs, Domingo B. Bonifacio and the National Labor Relaticns Commission,” docketed as CA-G.R, SP No. 152839 by Registered Mail to: 1. GERARDO ERESE, ESQ. Counsel for Private Respondent Unit 708 7" Floor, The Infinity Bonifacio Global City, Taguig 2. NATIONAL LABOR RELATIONS COMMISSION Public Respondent PPSTA Building Banawe Street Quezon City on. 25" day of January 2018 at Ortigas Pos! Office, as evidenced by Registry Receipt No. I BSB SOP FIO NH EN, svilisei Nani tome posinee return the mail to the sender after ten (10) days if undelivered, SUBSCRIBED AND SWORN to before me this 25" day of Januery 2018 affiant exhibiting to me his SSS No. 33-1435148-4, Page No.7: ‘Notary Baoan Pacig Oy Book No. 4p oe a TORT Series of 2018 1 age fe Orgs ent Ro. 6872989 ot 98 ail: negtnwyaoo.com ih7 VAS HARIO LAW UNKICES, ” ANNEX -_ LACESMANSEA CURA duns Republic of the Philippines Department of Labor and Employm AF ran Q NATIONAL LABOR RELATIONS C COMM NOV 1.6 2017 Regional Atbitration Branch No. IV 2nd Floor Hectan Commercial Cent Reve 2 vu National Highway comer Chipeco Avehpy: Q1K __Time: Halang, Calamba City, Laguna EXECUTIVE LABOR ARBITER GENEROSO V. SANTOS DOMINGO B. BONIFACIO, Complainant, versus, (NLRC LAC 06-002103-17) RAB CASE NO. RAB IV-04- 000603-16-L. CIRTEK ADVANCED ‘TECHNOLOGIES AND SOLUTIONS, INC.,/ JERRY LIU, Respondents MOTION FOR ISSUANCE OF A WRIT OF EXECUTION Complainant, DOMINGO B. BONIFACIO. (hereinafter referred to as “Complainant”), by counsel, unto this Honorable Office, most respectfully states ae On Match 16, 2017, this Honorable Office rendered a Decision, the dispositive portion of which reads: “WHEREFORE, judgment is hereby rendered DISMISS"NG the complaint for lack of merit. SO ORDE ED.” 2. Upon receipt of a copy of the Deaision on May 10, 2017, Complainant timely Gled his Memorandum of Partial Appeal dated May 19, 2017 to the Honorable National Labor Relations Commission (the “Commission”. 3. On June 30 2017, the Thitd Division of the Honorable Commission promulgated a Desisin granting Complainants Partial Appeal, the dispositive portion of which reads:(WHEREFORE, premises considered, this Instant Appeal is GRANTED. The Decision dated 16 March 2017 is hereby REVERSED AND SET ASIDE. Respondens-Appelice CIRTEK ADVANCED TECHNOLOGIES | AND SOLUTIONS, INC, is hereby otdered to pay Complainant Appellant the amount of US$ 205,292.00 or its equivalent in Philippine currency based on the prevailing rate of exchange as balance for his unpaid separation pay as well as ten percent (10%) of the award as attorney's fees. SO ORDERED.” 4. An original copy of the Decision dated June 30, 2017 is attached hereto as Annex A. “a Respondent Cirtek Advanced ‘Technologies and Solutions, Inc. filed @ Motion for Reconsideration which was denied by the Honorable Commission in its Resolution promulgated on August 31, 2017. 6. An original copy of the Resolution dated August 31, 2017 is attached hereto as Annex B. 7. Subsequently, on October 19, 2017, the Honorable Commission's ‘Thied Division issued an Entry of Judgment cestifying the promulgation and finality of the Honorable Commission’s Resolution dated August 31, 2017. Tt reads: “This is to certify you(aic) that on August 31, 2017 a Decision/ Resolution was promulgated in the above-entitled case, the dispositive portion of which reads as follows: ‘WHEREFORE, premises considered, this instaat Motion for Reconsideration is DENIED for lack of metit SO ORDERED. And that the same has pursuant to the Rules of the Commission, become final and executory on September 24, 2017 and is hereby recorded in the Book of Entry of Judgments.” 8 With said Entry of Judgment, the favorable award to the Complainant became final and executory. 9. A certified true copy of the Entry of Judgment is attached hereto as Annex C.10. Rule XI of the 2011 Revised NLRC Rules of Procedure (“NLRC Rules”) provides that a writ of execution may be issued motu proprio ot on motion, upon a decision or order that has become final and executory, and said motion may be filed before the Honorable Lebor Arbiter upon submission of certified true copies of the decisions or final order/s sought to be enforced including notice of decision or order and the entry of judgment: “RULE XI ‘ECUTION PROCEEDINGS SECTION 1. EXECUTION UPON FINALITY OF DECISION OR ORDER. - a) A wsit of execution may be issued motu proprio ot on motion, upon a decision or order that has become final and executory. b) If an appeal has been duly pesfected and finally resolved by the Commission, a motion for execution may be filed before the Labor Arbiter, when the latter has possession of the case records or upon submission of certified true copies of the decisions or final ordet/s sought to be enforced including notice of decision or otder and the entry of jndgment, copy furnished the adverse party. xxx’ 11. Moreover, under Section 4 of the same ules, the perfection of an appeal to the court shall not operate to stay an execution of the Honorable Commission’s Resolution, unless a restraining order is issued: TION 4. EFFECT OF PETITION FOR CERTIORARI ON EXECUTION. — A petition for cestiorari with the Court of Appeals or the Supreme Court shall not stay the execution of the assailed decision unless a restraining order is issued by said courts,” 12. ‘Thus, pursuant to Section 1, Rule XT of the NLRC Rules, and in the absence of any restraining order issued by a competent court to the contrary, Complainant respectfully moves that a writ of execution be issued implementing the Resolrtion of the Honorable Commission, it having, become final and executory on September 24, 2017. 13. In addition, Complainant respectfully moves for the setting of a Pre-execution Conference, if still necessary, in order to thresh out matters relevant to execution, including the final computation of the monetary award in the amount of US$ 205,292.00 or its equivalent in Philippine currency based on the prevailing rate of exchange as well as ten percent (10%) of the award as attorney’s fees.14, For reference of this Honorable Office, according to the Banko Sentral ng Pilipinas (“BSP”), the Daily Peso per U.S. Dollar rate as of October 24, 2017 is PHP 51.507. Thetefore, as of October 24, 2017, the award to which Complainant is entitled to amounts to PHP 11,631,372.5, broken down a follows: Monetary Award based on PHP 10,573,975 Commission’s Decision and Resolution (at prevailing rate) _ 10% Attorney's Fees PHP 1,057,397.5 FLOTAL PHP 11,631,372.5 15. A copy of the BSP Daily Peso per U.S. Dollar for October 2016 to October 2017 is attached hetero as Annex D. PRAYER WHEREFORE, Complainant respectfully prays unto this Honorable Office to: 1. ISSUE a Writ of Execution against herein Respondents to satisfy the monetary award in favor of the Complainant in the amount of US$ 205,292.00 or its equivalent in Philippine cutrency based on the prevailing rate of exchange as well as ten percent (10%) of the award as attomey’s fees; 2. If still necessary, SEV the Pre-execution Conference pursuant to the 2011 Rules of Procedure. Other just and equitable reliefs are likewise prayed for. Makati City for Calamba City, October 24, 2017. ATTY. GERARDO ERESE Counsel for Complainant 23" Floor, Corporate Center 139 Valero St,, Salcedo Village, Makati City 1227 ‘Tel. No. +63917 811 7497 Email: gferese@gmail.com PTR No. 6930111; 1/13/17; Makati City TBP No. 1063851; 1/13/17, Manila IV Roll No. 39214 Sompliance No. V-0013700; 13 January 2016REQUEST/NOTICE ‘The Honorable Labor Arbiter NLRC Calamba City Laguesma Magsalin Consulta & Gastatdo Counsel for Respondents Unit 705 Prestige Tower F, Ortigas Jr, Road Ortigas Center, 1605 Pasig City Cirtek Advanced Technologies and Solutions, Ine./ Jerry Liu Respondents 116 East Main Avenue Phase V Sez Laguna Technopark Bifian, 4206 Laguna Greetings: Please submit the foregoing motion for the consideration and approval of this Honorable Office immediately upon receipt hereof, Notice is likewise given to the adverse patty of this motion, 7? ATTY. ‘DO F. ERESE Copy furnished: Laguesma Magsalin Consulta & Gastardo Counsel for Respondents Unit 705 Prestige Tower F. Ortigas Je. Road Ortigas Center, 1605 Pasig City Cirtek Advanced Technologies and Solutions, Inc./ Jerry Liu Respondents 116 East Main Avenue Phase V Sez Laguna Technopark Bifian, 4206 LagunaEXPLANATION ‘This Motion was served on the other pastics via registered mail due to time, distance and manpower constraints, which made personal setvice not practicable. ATTY. GERAI F. ERESEANNEX “ ” se Repub the Phiipines —Drtment of Labor ard Employ NATIONAL LADOR RELATICNS COMMISSION ‘Quezon city “THIRO Division Dominco BonrEACIO NLRC LAC 06-002103-27 RABCASE NO RAB V-04-000603-16-L Complainants), ~ versus ~ CIRTEK ATS/ ADVANCE TECHNOLOGIES AND SOLUTE ING, ET.AL, Respontientis). x errr oMIGo uoNTFACIO. ccuerex ars onptonant QWANCE TECHNOLOGIES AND SOLUTIONS, wc, 108 it Orve Sewev ty ‘yaa atsbeg Wiage SWTHONY aLneR BuYAWE 10 taming Cty exponents HS East Min ve, Prose Sez Lage Teennopor, ATTY. GERARDO ERESE LAGUESHA MAGSALIN CONSULTA & GASTARDO Coen for Comptia ‘counsel fer Respondents 251 Foe, Corporate Center Unt 70s Presta tow, 10> valor Sve, Saco Mage, Prova asc, at ty (raga Geter, Pais Cy Gentlemen: ‘You are hereby notified by these presents that on June 30, 2017 afa) DECISION ‘was issued In the above-entitled case, copy is hereto attached and the original of wien ie on es Quezon City, Philippines, June 30, 2017 For the Heplty Executive Clerk: ATTY, JOSEPHLANTHONY F. TOLENTIN Unbor argitration AssociateRepublic of the Philippines ye Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION Quezon City THIRD DIVISION DOMINGO B. BONIFACIO, Complainant-Appellant, NLRC LAC No. 06-002103-17 NLRC Case No. RAB-IV-04-00603-16L sversus- Lopez, Pres. Comm., Espiritu, Jr.,Comm.; and Villanueva, Comm. CIRTEK ADVANCED TECHNOLOGIES SOLUTIONS, INC.,/JERRY LIU Responcents-Appellees, / x Promulgated: “UN 3 0 2 DECISIO \ Villanueva, C, C., Comm. This is a Partial Appeal filed by Complainant-Appellant (complainant”) seeking the reversal of the Decision’ dated 16 March 2017 of Labor Arbiter Generoso V, Santos in NLRC Case No. RAB-IV-04-00603- 161, a case for non-payment of separation pay, attorney's fees and expenses of litigation. The dispositive portion of the Deci reads as follows: “WHEREFORE, judgment is hereby rendered DISMISSING the complaint for lack of merit. SO ORDERED.” Rollo pp. 280-293, \o DECISION A NLRC LAC No. 06-002103-17 : NLRC Case No, RAB-IV-04-00603-16L Page 2 of 13 x x ANTECEDENT FACTS : Complainant-Appellant’s Version In complainant's Position Paper? he alleged that he was employed as President of Pacific Microwave Corporation since 1995. In 2001, the company was renamed as Remec Manufacturing Philippines, Inc., (*PMC-RMPI”) due toa shift in the ownership of its stockholdings, In 2005, a business unit of the company was sold to Technology Philippines, Inc, (“IPI”). TPPs Chief Executive Officer, Dave Newman, offered complainant an employment opportunity as President of TPI which he accepted. Thus, for another eight years, complainant servéd as President of the company which was later renamed as Remec Broadband Wireless, Inc., (*RBW1”). In 2014, the company Cirtek Electronics International Corporation acquired RBW1. Thus, the company was renamed to its present name, Cirtek Advanced Technologies Solution, Inc, herein respondent company. On 27 November 2014, respondent company filed a Notice of ‘Termination due to Retrenchments before the DOLE Region IV-A Office. ‘The Notice stated that the company will be retrenching 272 employees, including complainant, effective 28 December 2014. Accordingly, respondent Cirtek asked complainant to receive a Notice of Termination dated 28 November 2014 stating that he would be retrenched due to financial losses being suffered by the company and that he is entitled'to receive a separation package consisting of one month pay for every year of service. At the time, complainant did not feel the need to acknowledge receipt of the letter and in turn was not given a copy thereof. However, he wes able to secure fom another similarly situated employee copy of a termination letter 21d. at pp. s9-3 91. a pp. 156-68. ‘i 7DECISION NLRC LAC No. 06-002103-17 NLRC Case No. RAB-IV-04-00603-161. Page 3 of13, and complainant was able to confirm that the contents thereof were identical to the letter which would have been given to him.+ At the time of his termination, he was receiving a monthly salary of 'US$16,068 and had been in service with the company for more than 19 years. Thus, his separation pay amounted to US$305, 292.00. However, complainant's separation from the company was short-lived. On 2 January 20:5, the respondent company re-engaged him as its President, retaining his salary and the terms of his previous employment. While performing, his functions as President, complainant reminded the respondent company to release the separation pay that was meant for his retrenchment. On July 2015 or seven months after his retrenchment, the respondent company was only able to pay US$100,000 of his separation pay and promised to pay the remaining balance on a later date, However, the respondent company reneged on its promise and instead asked him to sign a quitclaim document. Complainant polite'y refused and stated that he would rather wait for the full payment of his separation pay before he would sign the quitclaim, Due to the continued delay of the full payment of his separation pay, complainant decided to investigate and discovered that for the year ended 31 August 2015, the respondent company actually garnered an income of US$1, 842, 015.00, an amount more than enough to answer for the remainder of his separation pay. Dismayed by his discovery, complainant tendered his resignation effective 15 November 2015.5 In his resignation letter, complainant reiterated his demand for the full payment of his separation pay. 414. atp. 169,DECISION NLRC LAC No. 06-002103-17 NLRC Case No. RAB-IV-04-00603-16L. Page 4 of 13 x Thereafter, complainant sought the assistance of Dave Newman, the former CEO of RWBI. Dave Newman forwarded to him an email he sent to the respondent company in 3 June 2015 wherein he asked the respondent company to confirm whether appropriate payments have been made to complainant “per the RBW monies provided at Close." Dave Newman explained that the “RBW monies provided at Close” refer to the US$300, 775.00 that Remec Inc., wired to the respondent company on 11 May 2015 in order to fully cover complainant's severance package.? ‘Thus, complainant and his counsel sent a demand letter to the respondent company for payment of the remaining balance of his separation pay in the amount of US$205, 292.008 Respondents failed to heed the demand forcing complainant to file the instant complaint, Complainant argued that he is entitled to payment of separation pay by virtue of his retrenchment which happened upon the sale of the company to Cirtek Blectronics International Corporation, Based on the termination letter, Cirtek offered a severance package of one month pay for every year of service. Having been partially paid with US$100,000.00, he is still entitled to the remaining balance of US$205, 292.00. Compiainant likewise argued that he is entitled to payment of moral and exemplary damages as well as attorney's fees when respondents acted in bad faith and with malice by misrepresenting that the respondent company had insufficient funds to pay his separation pay. 8d. atp. 185, dat p18 Fd. at pp. 81d. at p19.DECISION NLRC LAC No. 06-002103-17 NLRC Case No. RAB-IV-04-00603-161. Page 5 of 13 ps Respondents-Appellees’ Version In respondents’ Position Paper with Motion to Dismiss,? they admitted that complainant was appointed as President of RBWI on 27 August 2005. RBWI has a policy on payment of Severance Benefit based on its Retirement Plan wherein payment shall be due only to members who were “involuntarily separated from the company with at least 8 but less than 10 years of Credited Service due to a retrenchment program or redundancy or for causes not due to his own fault for every year of Credited Service or a percentage of his normal retirement benefit for 10 years of Credited Service...” For the past years, RBWI incurred substantial financial losses. Thus in 2013 and 2014, RWBI decided to implement retrenchment programs, As Preparations for the retrenchment was beitg done, Cirtek Electronies International Corporation bought a majority of the shares of stock of RWBI. ‘Thus, RWBI was renamed to its current name, Cirtek Advanced ‘Technologies and Solutions, Ine., the respondent company. However, complainant remained as respondent company’s President and as one of its corporate officers. During the implementation of the retrenchment program, the respondent company inquired upon complainant if he would be keen on leaving the company in exchange for a separation package. Complainant however refused and insisted on continuing as the company's President. Thus, the respondent company allowed complainant to retain his position, It was only in 1 October 20:5 when complainant left the company by submitting a resignation letter.2° Despite his voluntary resignation and despite his status as a corporate officer of the respondent company, complainant still filed the instant 231d, st pp. 42-64. "Id.avp. 64 ¢DECISION NLRC LAC No. 06-002103-17 NLRC Case No. RAB-IV-04-00603-16L Page 6 of 13 x complaint for payment of separation pay, attorney's fees and interest on his expenses for litigation, Respondents argued that the instant complaint is an intra-corporate Controversy to which the Labor Arbiter has no jurisdiction. Nonetheless, they also averred that complainant is not entitled to separation pay because his separation from the company was due to a voluntary resignation, In respondents’ Reply,# they insisted that complainant was not part of the retrenchment program affecting the employees of the company. ‘They averred that complainant refused to be retrenched and he was allowed to retain his position as the company’s President until the date of his voluntary resignation in 2015, In respondents’ Rejoinder, they also argued that complainant cannot claim damages since he failed to include it as a cause of action in his complaint. The Labor Arbiter’s Ruling On 316 March 2017, the Labor Arbiter issued a Decision dismissing the complaint for lack of merit. The Labor Arbiter resolved the issues as follows: a) the Labor Arbiter has jurisdiction over the complaint. The cause of action raised by complainant does not involve an intra-corporate controversy but only an employment matter wherein he is secking payment of his separation pay; b) Nevertheless, complainant's claim for payment of separation is without merit. He never lost his employment as a result of being retrenched.DECISION: NLRCLAC No. 06-002103-17 NLRC Case No. RAB-IV-04-0060: Page 7 of 13 -16L. In fact, he never received a notice of termination. In his resignation letter, what he asked for was his retirement pay, not for his separation pay. He was also not able to show how he received the payment of U8$100,000 and what it was meant for. Neither was he able to prove through Dave Newman's emails that he was entitled to separation pay. Complainant-Appellant’s Appeal On 19 May 2017, complainant filed the instant Memorandum of Partial Appeal raising the following issues: 1 “Whether or not Appellant is entitled the balance of his separation pay;" andl 2. “Whether or not Appellant is entitled to damages and attorney's fees” Cotplainant argued that he was served a Notice of ‘Termination by the respondent company but he simply did not acknowledge receipt of the same, In any case, he contended that the absence of the Notice of Termination does not invalidate his claim because he was still included in the List of Permanently Terminated Workers due to Closure/Retrenchment that was submitted to the Department of Labor and Employment. Compleinant alleged that his retrenchment took effect on 28 December 2014 while his rehiting happened on 2 January 2015. This shows that he had indeed been terminated and there was break in his service, albeit for a short time only, Complainant further reiterated his claim and entitlement to damages and attorney's fees due the malicious manner by which respondents delayed the payment of his separation pay.DECISION NLRC LAC No. 06-002103-17 NLRC Case No. RAB-IV-04-00603-16L, Page 8 of 13, Respondents-Appellees’ Opposition On 20 June 2017, respondents fled their Opposition to the Appeal aguing that the Labor Arbiter correctly ruled that complainant is not entitled to any separation pay on account of his voluntary resignation; that his claims for attorney’s fees and interest on his supposed litigation expenses are baseless and unfounded; and that he is barred from claiming damages because these were not included as causes of action in his complaint. ISSUES: Given the foregoing, this Commission will resolve on whethe: complainant is entitled to payment of separa-ion pay, moral and exemplary damages and attorney's fees. Our Ruling: ‘Complainant’s appeal has merit. After a judicious review of the case records, We found sufficient reason to reverse and set aside the Labor Arbiter's decision. ‘The Labor Arbiter concluded that complainant was not retrenched because he continued to serve as President of the respondent company until the date of his resignation in November 2015 ard due to his failure to show his notice of termination, ‘The records of the case however showed that complainant was indeed retrenched by the respondent company. Primarily, the List of Permanently Terminated Workers Due to Closure/Retrenchment'? which was submitted by the respondent company to the DOLE Regional Office as its Establishment ‘Termination Report includes complainant's name and personal details in the Rollo, pp. 158-168.DECISION NIRCLAC No. 06-002103-17 NLRC Case No. RAB-IV-04-00609-261 Page 9 of 13 32% item of the list. This report was signed by the respondent company’s Director of Finance and was duly received by the DOLE Regional Office, Clearly, there was an intent by the respondent company to terminate complainant as part of its retrenchment program. Thus, the absence of a Notice of ‘Termination acknowledged by complainant does not militate against his claim as this is neither the sole nor controlling factor in proving that retrenchment indeed took place. To Our mind, the Termination Report already constitutes an official acknowledgment by the company that complainant is among the list of employees that will be terminated from service. In addition, there is compelling evidence in the records that complainant's retrenchment was effected, although only for a fow days, contrary to the Labor Arbiter’s findings that it did not happen. Complainant submitted an email from the respondent company, through Anthony Albert Buyawe, wherein the latter requested complainant to sign an attached Release Waiver and Quitclaim, “subject to the full and complete payment of [your] severance pay.”4 A perusal of the quitclaim document leaves no doabt that the “severance pay” refers to the separation pay that is due to complainant by virtue of his termination following the retrenchment program, this: “L acknowledge having reccived from Cirtek Advanced Technology Solutions, Ine. (“CATS” formerly REMEC Broadband Wireless International, Inc.), the amount of UNITED STATES DOLLAR: THREE HUNDRED FIVE THOUSAND TWO HUNDRED NINETY-TWO (USD305, 292.00, “Severance Pay”), as full and complete satisfaction of any and all amounts due me as an employee of CATS. 1 acknowledge that CATS has. fully compensated me for all my efforts and services rendered until the effective date of separation and 1 have no legal basis whatsoever to make any further demand from CATS for any compensation or benefit in whatever name in form. Mid.atp. 24aDECISION NLRC LAC No. 06-o02103-17 NLRC Case No. RAB-IV-04-00603-16L. Page 10 of 13 J acknowledge receiving from CATS the amount of United States Dollar: One Hundred Thousand Dollars (USD100,000.00) pad on May 19, 2015." (tales supplied) Clearly, the amount of US$305, 392.00 which the respondent com ny intends to pay to complainant refers to his separation pay at the rate of his monthly salary of US$16, 068 multiplied by the 19 years of service he rendered to the company. It is also clear that as early as May 2015, the respondent company has already advanced the amount of US$100,000.00 to complainant, leaving him entitled to the remaining balance. The evidence is contrary to the Labor Arbiter’s finding that Complainant failed to show how or for what purpose he received the amount of US$100,000.00. It was clearly the first tranche of Payment of his separation pay. The evidence likewise shows that the company acknowledged that it terminated complainant’s service during the retrenchment and that it owed him the remaining balance from the total amount of US$305, 392.00. The fact that complainant was re-hired after a few days from his retrenchment does not render his claim unmeritorious. The rehiring of retrenched employees does happen because employers are free to hire any employable individual as a matter of their freedom to run their business. In the case of Beralde et. al., vs, Lapanday Agricultural and Development Corporation, * the Court acknowledged that retrenched employees could indeed be rehired, to wit In the same manner, when Lapanday continued its business operation and eventually hired some of its retrenched employees and new employees, it was merely exercising its right to continue its business. The fact that Lapanday chose to continue its business does not automatically make the retrenchment illegal. In Beralde, the Supreme Court held that the rehiring of retrenched employees does not render the previous retrenchusent as illegal. In the present ‘Hd. atp-245, GR. No, 205685-86, Juno 2a, 2035DECISION NLRC LAC No. 06-002103-17 NLRC Case No. RAB-IV-04-00603-16L. Page 110f13 case, We are of the opinion that the rehiring of a retrenched employee such as complainant, did not render his retrenchment ineffective. It already took effect and entitled the retrenched employee to payment of separation pay. ‘That complainant was later re-engaged to perform his previous position does not diminish his claim to the separation pay as the re-engagement already refers to a new employment relationship that was separate from the previous employment, Thus, complainant is entitled to the balance of the severance package that was guaranteed to him by the respondent company or equivalent to the amount of US$ 205, 292.00. On the other hand, We cannot grant complainant's prayer for payment of moral and exemplary damages as these were not among the causes of actions listed in his complaint dated 11 April 2016.7 Section 12-C of Rule V of the NLRC Rules of Procedure prohibits the inchision of claims in the Position Paper if these claims were not stated in the complaint or amended complaint, thus: “(© The position papors of the parties shall cover only those claims and causes of action stated in the complaint or amended complaint, accompanied by all supporting documents, including the affidavits of witnesses, which shall take the place of their direct testimony, excluding those that may have been amicably settled.” Complainant asserts that he may include the claim for damages in his position paper as held by the Supreme Court in the case of Tegimenta Chemical Phils, vs Buensalida.® However, a review of the case shows that it was promulgated at a time and in view of the old provision of the NLRC Rules of Procedure as amended in 2002 when causes of action may be asserted not only in the complaint but also in Position Papers, thus: * Rollo, ps "G.R No. 176466, June17, 2008. “NLRC LAC No. 06-002103-17 NLRC Case No. RAB-IV-04-00603-16L, Page 12 of 13, a “Section 3, Rule V of the New Rulles of Procedure of she NLRC, as amended by NLRC Resolution No. 01-02 (Series of 2002), provides: SECTION 4, SUBMISSION or POSITION PAPERS/MEMORANDA. Without prejudice to the provisions of the last paragraph, Section 2 of this Rule, the Labor Arbiter shall cirect both parties to submit simultaneously their position papers with supporting documents and affidavits within an inextendible period of ter: (10} days from notice of termination of the mandatory conference. ‘These verified position papers to be submitted shall caver only those claims and causes of action raised in the complaint excluding those that may have been amicably settled, and shall be accompanied by all supporting documents including the affidavits of their respective witnesses which shall take the piace of the latters direct testimony. ‘The parties shall thereafter not be allowed to allege facts, or present evidence to prove facts, not referred to andany cause or causes of action not included in. the complaint or position papers, affidavits and other documents.” ‘The eurrent provision in the 2011 NLRC Rules of Procedure as cited earlier already removed any mention of the Position Paper and only indicated the complaint and the amended complaint as the proper documents where causes of action may be raised, However, We find that the grant of attorney's fees equivalent to 10% of the total award is reasonable considering that complainant was forced to litigate in order to enforce his claim due to the position taken by respondents. ‘The liability for the awards granted herein shall be borne solely by the respondent company Cirtek Advanced Technologies and Solutions Inc., for failure of complainant to show bad faith or any fault on the part of the individual respondent Jerry Liu. WHEREFORE, premises considered, this instant Appeal is GRANTED, The Decision dated 16 March 2017 is hereby REVERSED AND SET ASIDE. Respondent-Appellee CIRTEK ADVANCED TECHNOLOGIES AND SOLUTIONS, INC,, is hereby ordered to pay Complainant-Appeliant the amount of US$ 205, 292.00 or its equivalent in Philippine currency based onDECISION NLRC LAC No, 06-002103-17 NERC Case No. RAB-IV-04-00603-16L, Page 1g of 13 x the prevailing rate of exchange as balance for his unpaid separation pay as well as ten percent (10%) of the award as attorney's fees. SO ORDERED. Quezon City, Philippines. CECILIO ALEJANDRO C. VILLANUEVA, ! Commissioner WE CONDUR: LO C. ESPIRITU, JR. Commissioner ALEX Zz Presiding (#ltnibsioner CERTIFICATION Pursuant to Article 213 of the Labor Code, as amended by R.A. 6715, it is hereby certified that the conclusions in the above DECISION were reached n consultation before the case was assigned to the writer of tf} opinion of the Commission, ALEX Presiding isfioner cevfactnDepartment of Labor and Emplayraent merece | ANNEX « » NATIONAL LABOR RELATIONS COMMISSION... ‘Quezon Cty ‘THIRD DIVIstON Domo BONTFACIO NURCLIC —_06-002103-47 RAB CASE NO RABTV-04-000603-16-4 Complainants), CIRTEK ATS/ ADVANCE TECHNOLOGIES AND SOLUTE ING, EF. AL. Respondent(s). NOTICE OF RESOLUTION oMtnco Bowtracto. ccrnrex ars Conpiinane OWANCE TEOMMOLOGIES AND SOLUTIONS, INC, {ea a ore Sey Ui ‘yaa abn Vitae ‘nvTeon aLseRr BUYAWE 1780 surmt Cy Rospoons| M6 Casta Ave, Phase, Sez Laguna Tecnnopok, ATTY, GERARDO ERESE LAGUESMA MAGSALIN CONSULTA & GASTARDO. Couns fe Cemanant att Rese ip vaers Sua, Sedo lage, Peorase asd. Notat Oy ‘ragas Center, Pai Cy Gentlemen: You are herety notified by these presents that on August 31, 2017 a(n) RESOLUTION was issued in the above-entitled case, copy is Nereto attached and the origital of which fs on file. Quezon City, Philippines, August 31, 2017Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION: Quezon City THIRD DIVISION DOMINGO B. BONIFACIO, Complainant-Appellant, NLRC LAC No. 06-002103-17 NLRC Case No. RAB-IV-04-00603-161, -versus- Lopez, Pres. Comm., Espiritu, Jr.,Comm.; and ‘Villanueva, Comm. CIRTEK ADVANCED TECHNOLOGIES SOLUTIONS, INC.,/JERRY LIU Respondents-Appellees, x x Promulgated: ANG 3 | 20ff RESOLUTION Villanueva, C. C., Comm. This resolves the Motion for Reconsideration filed by Respondent- Appellee Cirtek Advanced Technologies Solutions, Inic,, from Our Dezision promulgated on 30 June 2017. Respondents argued that this Commission erred in its finding that complainant was indeed retrenched ftom service and that he had been paid a portion of his severance pay as a consequence. They alleged that complainant's inclusion in the list of retrenched employees sent to DOLIL was a mere clerical error and that the respondent company had no intention of terminating his employment. They likewise assailed the Release Waiver and Quitelaim document which was relied upen by this Commission in its findings since the same was neither signed nor duly notarized to have any binding legal effect,. | ANNEX C my Republic ofltie Philippines. Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION Quezon City THIRD DIVISION DOMINGO B. BONIFACIO, LAC-06-002103-17 Compiainant(s), RAB-IV-04-90603-16-L sversus- CIRTEK ADVANCED TECHNOLOGIES AND SOLUTIONS, INC., JERRY LIU, Respondent(s). ENTRY OF JUDGMENT This is to certify you that on _Auqust 31, 2017 a Decision/Resolution was promulgated in the above-entitled case, the disposilive portion of which reads as follows: “WHEREFORE, premises considered, this instant Motion for Reconsideration is DENIED for lack of merit. SO ORDERED.” And that the same has pursuant to the Rules of the Commission, become final and executory on September 24, 2017 and is hereby recorded in the Book of Entries of Judgments. S07 9 ONE oe Quezon Gity, Philipines ‘FF at Ny) VAN CHRISTIAN O. LEYNES Acting Deputy Executive Clerk Domingo Bonifacio Jerry Liu / Anthony Albert Buyawe Complainant Cirtek ATS (Advance Technologies and 108 Pili Drive Solutions, Inc. ). Ayala Alabang Village 116 East Main Avenue 1780 Muntinlupa City Phase V. Sez Laguna Technopark Bifian, 4026 Laguna Atty. Gerardo Erese Laguesma Magsalin Consulta & Gastardo Counsel For Complainant Counsel For Respondents 23" Floor, Corporate Center Unit 705 Prestige Tower 139 Valero Street, Salcedo Village F. Ortigas Jr. Road 1227 Makati City Ortigas Center, 1605 Pasig CityEee er aoneonoe ge : ' : t nt mo | ANNEX o ” Dato_Oct16_Nov-16 _Dec-16_Jant7_Febst? _Mart7_Aget? _May.t7 _Juns47__ Jul? Auge? 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BONIFACIO, eee Complainant, = ANNEX - et ~ versus - NERC NCR Case No. 4-00603-16-L Executive Labor Arbiter ‘Generoso V. Santos mn fo 244 ene oss CIRTEK —_ATS/_— (ADVANCED suum TECHNOLOGIES & SOLUTIONS, Post REGIST * Leteracage cha RoR INC.) AND JERRY LIU, a oe Nag { Posted on__! PASS METI tami Respondents. Proserve this receipt fr oigyg\ee7q Fpse of hc anaX i PostmasteriTeller OPPOSITION (LO THE MOTION FOR ISSUANCE OF A WRIT OF EXECUTION), Respondents CIRTEK ADVANCED TECHNOLOGIES AND SOLUTIONS, INC. [the “Company”] and JERRY LIU, by counsel, respectfully submit this Opposition to complainant Domingo B. Bonifacio’s Motion for Issuance of a Writ of Execution based on the following ground: GROUND THE ISSUANCE OF A WRIT OF EXECUTION IN CONNECTION WITH THE 30 JUNE 2017 DECISION AND 31 AUGUST 2017 RESOLUTION OF THE NATIONAL LABOR RELATIONS COMMISSION WHICH REVERSED AND SET ASIDE THE 16 MARCH 2017 DECISION OF THIS HONORABLE OFFICE IS PREMATURE AND INJUDICIOUS CONSIDERING THAT SAID DECISION AND RESOLUTION HAVE NOT YET ATTAINED FINALITY IN VIEW OF THE COMPANY’S PENDING AND UNRESOLVED PETITION FOR CERTIORARI FILED WITH THE COURTOF APPEALS QUESTIONING THE DECISION AND RESOLUTION OF THE NLRC DISCUSSION Complainant claims that this Honorable Office must issue a Writ of Execution directing the Company to pay his separation or severance Pay considering that under Rule X1 of the Rules of Procedure of the National Labor Relations Commission [‘NLRC”], this Honorable Office must issue said writ should a decision or order becomes final and executory [See Motion at 3]. While it is true that the Decision and Resolution of the NLRC reversed and set aside the Decision of this Honorable Office, it cannot be gainsaid that said Decision and Resolution are unalterable and final considering that the Company on 4 October 2017, timely filed a Petition for Certiorari to contest the Decision and Resolution of the NLRC. On 4 October 2017, the Company filed a Petition for Certiorari with the Court of Appeals praying for the review and annulment of the 30 June 2017 Decision and 31 August 2017 Resolution of the NLRC in NLRC RAB Case No. IV-04-00063-16-L! NLRC LAC No. 06-002103- U7 entitled Domingo B. Bonifacio v. Cirtek Advanced Technologies and Solutions, Ine. and Jerry Liu” based on the following grounds: PUBLIC RESPONDENT NLRC COMMITTED SERIOUS ERROR AND GRAVE ABUSE OF DISCRETION AS FOLLOWS: 1 IN GRANTING PRIVATE RESPONDENTS. APPEAL AND IN RULING THAT HE WAS RETRENCHED FROM EMPLOYMENT NOTWITHSTANDING THE CLEAR ABSENCE, OF THE ELEMENTS OF RETRENCHMENT an IN RELYING ON PRIVATE RESPONDENT'S, UNFOUNDED CONCLUSION THAT HE WAS PAID A PORTION OF HIS SEVERANCE PAY AS A RETRENCHED EMPLOYEE AND IS, THEREFORE, ENTITLED TO THE REMAINING BALANCETr IN DECLARING THAT PRIVATE RESPONDENT WAS SIMPLY —REHIRED AFTER HE WAS RETRENCHED FROM EMPLOYMENT WITHOUT ANY FACTUAL AND BASIS Iv WITHOUT PREJUDICE TO THE FOREGOING ARGUMENTS AND DISCUSSION, IT IS EVIDENT THAT PRIVATE RESPONDENT IS NOT ENTITLED TO ANY SEVERANCE OR SEPARATION PAY CONSIDERING THAT IT 1S CLEAR FROM THE EVIDENCE ON RECORD THAT THE SEVERANCE OF HIS EMPLOYMENT WAS DUE TO HIS VOLUNTARY RESIGNATION Based on the foregoing, the NLRC committed serious errors in svcrsing and setting aside the Decision of this Honorable Office by granting complainant his claim for separation/severance pay since absence of the elements of retrenchment in this case. Further, the Company reiterated in said Petition that complainant is not entitled to any severance or separation pay considering that he voluntary resigned from discretion and improper appreciation of facts and the law committed by the NLRC, Further, it is respectfully submitted that even though no Temporary Restraining Order [“TRO”] or preliminary injunction has yet been issued by the Court of Appeals, this Honorable Office should not proceed with the execution proceed ings of this case while the Court of Appeals has not Yet resolved the case with finality, The execution of the judgment award, at this Point, would not only undermine the hierarchy of courts, disregard the respect and due deference that should be accorded to the Cout of Appeals, but would also render moot and academic any favorable action of the Court of Appeals especially after the Company had pointed out the errors Fevetse tos ignore the power of the Court of Appeals to possibly wvcnse the Decisions and Resolution of the labor tribunals. The Justification of the Company is amply supported by jurisprudence.In Eternal Gardens Memorial Park Corp. v. Court of Appeals IG.R. No. L-50054 August 17, 1988], it was ruled that: Although this Court did not isswe any restraining inst the Intermediate Appellate Court to prevent 8 any action with regard to its resolutions respectively granting respondents’ motion to expunge from the records the petitioner’s motion to dismiss and denying the latter’s motion to reconsider such order, upon learning of the petition, the appellate court should have refrained from ruling thereon because its jurisdiction was necessarily limited upon the filing of a petition for certiorari with this Court questioning the propriety of the issuance of the above-mentioned resolutions. Due respect for the Supreme Court and practical and ethical considerations should have Prompted the appellate court to wait for the final determination of the petition before taking cognizance of the case and trying to render moot exactly what was before this court [Emphasis supplied}, The rule on judicial courtesy should, thus, prompt this Honorable Office to allow the Court of Appeals to evaluate the issues raised in the Petition, the very subjects of which are the Decisions and Resolutions of this Honorable Office and the NLRC. In the event that the Petition is granted and the Decision and Resolution of the NLRC are annulled, the Writ of Execution would become moot and academic. All these should have been considered as sufficient justification for this Honorable Office to observe judicial Courtesy and refrain from proceeding with the execution proceedings of this case. There is, therefore, a necessity to defer and suspend the execution proceedings Notably, being an attached Company of the DOLE, this Honorable Office should also take judicial notice that even the DOLE Secretary is of the view that a pending Petition for Certiorari with the Court of Appeals must take precedence over the NLRC Rules. In OS-A-9-5-10 (NCR-OD. M-0911-006) entitled “In Re: Petition for Certification Election among the faternal Job Market Workpoo/ABS-CBN IM Workers Union of 438: CBN Broadeasting Corp.”, the DOLE Secretary effectively ruled that even NLRC Decisions that had already attained finality cannot be accorded respect if there is a pending Petition with the Court of Appeals questioning such Decisions. According to the DOLE Secretary, the camehad not yet attained statutory finality considering that private respondents therein have pending Petitions for Certiorari with the Court of Appeals. Thus, in a Resolution dated 26 October 2010, the DOLE Secretary opined that Let it be stressed that the authority of the Labor Aubiters or the NLRC to pass upon the existence of employer-employee relationship as provided under Article 217 of the Labor Code, as amended, is well settled. However, the same has to be reconciled with the Principles of res judicata. Under the NLRC Ru‘es, the Payonan and Jalog Cases are considered final and executory, but the same is without prejudice to the finality contemplated under the principles of res judicata which requires a finality where the cases have reached their end. Considering that if the Court of Appeals grants the petition and nullifies the decision of the NERC on the ground of grave abuse of discretion amounting to excess or lack of jurisdiction, the decision of the NLRC is, in contemplation of law, null and void ab initio; hence, the de: final and executory [Emphasis supplied]. ‘The rulings on the principles of judicial courtesy and tae hierarchy of courts is well supported by recent jurisprudence. It i Significant to note that in Saudi Arabian Airlines y. Rebesencio [G.R. No. 194321, 1 December 2010], the Supreme Court gave due regard to the observance of the principle of judicial courtesy despite the absence cf a TRO and/or writ of preliminary injunction: Before this Court is a Petition for Certiorari with Urgent Application for the Issuance of a Temporary Restraining Order (TRO) andor Writ of Preliminary Injunction, assailing the Resolution issued by the Coutt of Appeals (CA) dated September 9, 2010, which cenied petitioners’ similar motion for the issuance of a TRO or an Injunctive Writ on the ground that the case, Particularly docketed as CA-G.R. SP No. 113006, was already deemed submitted for decision, and that the issues relative to the said motion would be resolved together with the main petition We dismiss the Petition for lack of grave abuse of discretion on the part of the CA since there is a marked absence of any urgent necessity for the issuance of aTRO and/or writ of preliminary injunction, Suffice it to state that no -writ of execution has yet been issued by the Labor Arbiter (LA) in this case. Respondents have only filed a motion for the issuance thereof. The LA has not ruled on the motion. Just as there exists the possibility that the LA shall grant respondents? motion, there also exists the possibility that the LA shall deny the same. Evidently, petitioners” application for a TRO and/or writ of preliminary injunction is, as of vet, based on purely speculative grounds and already that the LA would grant respondents’ motion and writ of execution. OF the same nature as an injunction, a TRO is not designed to Protect contingent or future rights; the possibility of irreparable damage without proof of actual existing right is not a ground for the issuance thereof. Nevertheless, it behooves the LA to accord the CA a measure of judicial respect and courtesy inasmuch as the main case involving the parties herein has already been submitted for decision before the CA, WHEREFORE, the instant Petition is DISMISSED, and the Court of Appeals is hereby DIRECTED to resolve the ease, partic as CA-G.R. SP No. 113006, with dispatch. The Labor Arbiter is ADVISED to observe judicial courtesy and await the Court of Appeals Decision [Emphasis supplied) Further, Delima v. Gois (GR. No. 178352, 17 June 2008], is instructive on this point. The Resolution of the NLRC dismissing therein respondent's appeal was entered in the Book of Entries of Judgment on 29 September 2006 after it allegedly became final and executory on 12 September 2006. Parenthetically, the NLRC issued the ResolutionRuling that the NLRC erred in declaring its 31 May 2006 Resolution final and executory, the Supreme Court explained in Delima that: A decision issued by a court is final and executory when such decision disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing else to be done but to enforce by execution what has been determined by the court, such as when after the lapse of the reglementary period to appeal, no appeal has been perfected. In the instant case, it is undisputed that when the entry of judgment was issued by the NLRC on September 12, 2006 and entered in the Book of Entries of Judgment on September 29, 2006, the reglementary period to file a petition for certiorari has not yet lapsed. In fact, when the petition for certiorari was filed on October 13, 2006, the same was still within the reglementary period. It bears stressing that a petition for certiorari under Rule 65 must be filed “not later than 60 days from notice of the judgment, order or resolution” sought to be annulled, The period or manner of “appeal” from the NLRC to the Court of Appeals is governed by Rule 65 pursuant to the ruling of this Court in the case of St. Martin Funeral Home v, National Labor Relations Commission, Section 4 of Rule 65, as amended, states that the “petition may be filed not later than sixty (60) days from notice of the judgment, or resolution sought to be assailed.” Corollarily, Section 4, Rule UI of the New Rules of Procedure of the NLRC expressly mandates that “(Aor the purpose(s) of computing the period of appeal, the same shall be counted from receipt of such decisions, awards or orders by the counsel of record.” Although this rule explicitly contemplates an appeal before the Labor Arbiter and the NLRC, we do not see any cogent reason why the same rule should not apply to petitions for certiorari filed with the Court of Appeals from decisions of the NLRC. Based on the foregoing, this Honorable Office should not proceed with the execution proceedings of the case considering that the award comained in the Decision and Resolution of the NLRC is the very subject of the Company's Petition for Certiorari which has not yet been resolved by the Court of Appeals. It is, therefore, respectfully requested thatexecution proceedings be suspended in deference of the principles of judicial courtesy and hierarchy of courts, PRAYER WHEREFORE, it is respectfully prayed that that complainant's Motion for the Issuance of a Writ of Execution be denied for utter lack of merit. Other reliefs, just and equitable are likewise prayed for Pasig City for Calamba City, 25 November 2017. LAGUESMA MAGSALIN CONSULTA & GASTARDO Counsel for Respondents Unit 705 Prestige Tower, F. Ortigas, Jr. Road Ontigas Center, Pasig City By: CARLOS LUIS L. FERNANDEZ PTR No. 2362240; 01-07-17; Pasig City IBP No. 1057620; 01-05-17; Quezon City Roll No. 45321 MCLE Compliance No. V-0020565 20 April 2016 CRA ANN AAA, IERRYLYN C. NAVARRA PTR No. 2362245; 01-07-17; Pasig City IBP No. 1057624; 01-05-17; Makati Roll No. 62588 MCLE Compliance No. V-0020688 20 April 2016 Copy furnished: OMG >, naw ]iq GERARDO ERESE, ESQ. Counsel for Complainant 23" Floor, Corporate Center 139 Valero Street, Salcedo Village, Makati City PMO 9Yq 6S 4 66C| \AGUESMA MAGSALIN CON & GASTARDO-LAW OFFICES. "3" : . “EW OFFICES 'NEX -_ . ERS neo D ee i ri Republic of the Philippines if bo rail Walt Department of Labor and Employment J 6 temo: 10 NATIONAL LABOR RELATIONS COM! a Regional Arbitration Branch No. IV 2nd Floor Hectan Commercial Center, National Highway corner Chipeco Avenue Halang, Calamba City, Laguna EXECUTIVE LABOR ARBITER GENEROSO V. SANTOS DOMINGO B. BONIFACIO, Complainant, oversus- (NERC LAC 06-002103-17) RAB CASE NO. RAB IV-04- 000603-16-1. CIRTEK ADVANCED ‘TECHNOLOGIES AND SOLUTIONS, INC.,, / JERRY LIU, Respondents, x URGENT SECOND MOTION FOR ISSUANCE OF A WRIT OF EXECUTION Complainant, DOMINGO B. BONIFACIO (here:nafter referted tc “Comphainant’), by counsel, unto this Honorable Office, most respectfully states: 1. On October 14, 2017, Complainant filed h:s Motion for Issuance of a Writ of Exention before this Honorable Office stating taat the Resolvtion dated August 31, 2017 of the National Labor Relations Commission (the “Commission”) in the captioned case became final and executor. 2. _ In order to show that the case is now final and executory, the Complainant attached the Honorable Commission’s Decision dated June 30, 2017," Resolution dated August 31, 20172 and the Entry of Judgment it issued on October 19, 2017,° which states: 2 Se Annex A 0 the Motion for Iasinnce of Writ of Excention fled lst October é, 2017 5 Ser Amex B of tne Motion for Tesuance of Wat of Excention * Ser Annex C ofthe Motion fos Tasuance of Wat of Execution,“This is -o certify you (vc) that on August 31, 2017 a Decision/ Resolution was promulgated in the above-cntitied case, the dispositive portion of which reads as follows: ‘WHEREFORE, premises considered, this instant Motion for Reconsideration is DENEED for lack of merit SO ORDERED. And that the same has pursuant to the Rules of the Commission, become final and executory on September 24, 2017 and is heteby recorded in the Book of Entry of Judgments.” (Emphasis supplied) 3. With said Entry of Judgment, the favorable award to the Complainant became final and executoty. 4. Ruie XI of the 2011 Revised NERC Rules of Procedure (“NLRC Rules”) provides that a weit of execution may be issued mote proprio ot on rotion, upon a decision or order that has become final and executory, and saic motion may be filed before the Honorable Labor Arbiter upon submission of certified true copies of the decisions or final oeder/s sought to be enforced including notice of decision or order and the entry of judgment: “RULE XI EXECUTION PROCEEDINGS TION 1. EXECUTION UPON FINALITY OF -ISION OR ORDER. - a) A writ of execation may be issued sou proprio ot on motion, upon a decision oz order that has become final and executory. ') Tan appeal has been duly perfected and finally resolved by the Commission, a motion for execution may be filed before the Labor Arbiter, when the latter has possession of the case records or upon submission of certified true copies of the decisions or final order/s sought to be enforced including notice of decision or order and the entry of judgment, copy furnished the adverse patty. xxx” (Emphasis supplied) wing submitted the necessary documents, the Complainant is execution of the Honorable Commission's Resolution, 6. Mexcover, under Section 4 of the same tales, the filing of a Petition for Cestiorari with the Court of Appeals shall nor operate to si ay anution of the Honot table Commission’s Resoluti order is issued: a restraining “SECTION 4. EFFECT OF PETITION FOR CERTIORARI ON EXECUTION. — A petition for certiorari with the Court of Appeals or the Supreme Court shall not stay the execution of the assailed decision unless a restraining, order is issued by said courts.” 7. Since thete is a0 restraining order issued by the Court of Appeals, there is therefore no reason to delay the execution of the Honorable Commission’s Resolution, 8. Section 7, Rule 65 of the Rules of Court likewise provides that absent a temporary restraining order, the principal case s failure to do so may be a ground for an administrative charge for the public tespondent. all proceed and “The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order ot a preliminary injunction, or upon its expiration, Failure of the public respondent to proceed with the_principal case may be a ground for an administrative charge.” (Emphasis suppled) ‘The principal case is now back with the Office of the Labor Arbiter since the Resolution of the Honorable Commission is now final and executory and nothing is Icft but to execute it. The Supteme Court provides in the case of Vicente Flarentino us. Mariano Rivera, et. al! that: “It bears stressing that a decision that has acquired Enality, as in this case, becomes immutable and unalterable, A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusiors of fact or law. In short, once a judgment becomes final and executory, it can no longer be disturbed no matter how erronzous it may be and nothing further can be done therewith except to execute it.”’ (Emphasis supplied) 10. It is emphasized that the issuance of a Writ of Execution for a final and executory judgment is a ministerial duty of the public o-ficer requived by law to perform such task. The prevailing patty is entitled as a matter of tight to a writ of execation as explained by the Supreme Coutt in Nerissa Buenvigje, et.al ns. CAS “ GR.No. 167968, Jana 5 Thi. © GR. No, 147806, November 12, 2002 2, 2000.“Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of tight, and the issuance of a writ of execution becomes a ministerial duty of the court. A decision that has attained finality becomes the Jaw of the case regardless of any claim that it is erroneous, ‘The writ of execution must therefore conform to the juclgment to be executed and adhere strictly to the very essential particulars.” (Emphasis supplied) U1. While the Respondent may have filed a Petition for Certiorari before the Court of Appeals, no restraining order was issued which would the effect of staying an execution. Thus, the execution must be allowed consistent with Ocampo ». RPN-9/Radio Philippines Network, Inc.8 which instructs: “As basic as the principle of finality of judgments is the rule that filing a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure ‘shall not interrupt the course of the Principal case unless a temporary restraining ordér or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case, Unlike an appeal, a pending petition for certiorari shall_not stay the judgment or ordet that it____assails. ‘The 2005 Rules of Procedure of the ‘National Labor Relations Commission, which were in effect when the material incidents of this case occurred, explicitly and specifically makes this principle applicable to decisions of labor arbiters and_of the National Labor Relations Commission. Rule XI, Section 10 of the 2005 Rules of Procedure of the National Labor Relations Commission states: TION 10. Effect of Petition for Certionari on ution. — A petition for certiorari with the Court of Appeals or the Supreme Court shall not stay the execution of the assailed decision unless a restraining order is issued by said courts. xxx Accordingly, where no restraining order or writ of preliminary injunction is issued, the assailed decision lapses into finality. Thereafter, execution may ensue.” (Himphas underscoring supplied and 12. Clearly, this Honoxable Office must abide by the NLRC Ru! Perform its ministerial duty, and order the execution of the Honorable 7 Ibid. ° GR. No. 192947, December 09, 2015. > DehFommission’s Reoldion which is now entered in the Book of Entry of Judgments. Anything less amounts to gross injustice and sheet abdication of responsibility. 15. In addition, Complainant respectfully moves for the setting of a Pre-execution Conference, if still necessary, in order to thresh out matters relevant to execution, including the final computation of the monetary awatd in the ¢ award as attorney’s fees. amount of US$ 205,292.00 or its equivalent in Phil lippine currency based on the prevailing rate of exchange as well as ten percent (10%) of 14, For reference of this Honorable Office, according to the Banko Sentral ng Pilipinas (“BSP”), the Daily Peso per US. Dollar rate as of December 1, 2017 is PHP 50.346000, Thetefore, as of December 1, 2017, the award to which Complainant is entitled to amounts to PHP 11,369,194.1, broken down as follows: Commission’s Decision and Resolution (at prevailing rate) _| 10% Attorney’s Fees Monetary Award basedon ‘| PHP 10,335,631 | PHP 1,0335,563.1 LTOTAL [PHP 11,369,194.1 15. A copy of the BSP Daily Peso per U.S. Dollar is attached hetero as Annex A. PRAYER WHEREFOR . Complainant respectfully prays unto this Honorable Office to: 1, ISSUE a Writ of Exeontion against herein Respondents to satisfy the monetary award in favor of the Complainant in the amount of 3 205,292.00 or its equivalent in Philippine currency based on the Prevailing rate of exchange as well as ten percent (10%) of the award as atlomey’s fees, which is contained as a final and execatory judgment in the NLRC Book of Entry of Judgments as of September 14, 2017; 2. If still ncesvary, SET the Pre-execution Conference pussuant to the 2011 Revised NLRC Rules of Procedure. Other just and equitable reliefs are likewise prayed for Makati City fo Calamba City, December 1, 2017Lf ATTY. GERARDO F. ERESE Connsel for Complainant 23" Floor, Corporate Center 139 Valero St,, Salcedo Village, Makati Cry 1227 Tel. No. +63917 811 7497 Email: pferese@em efec PTR No. 6930111; 1/13/17; Makati City TBP No. 1063851; 1/13/17, Manila IV Roll No, 39214 ! Compliance No. V-0013700; 13 January 2016 REQUEST/NOTICE ‘The Honorable Labor Arbiter NLRC Calamba City Laguesma Magsalin Consulta & Gastardo Counsel for Respondents Unit 705 Prestige Tower F, Ortigas Jr. Road Ontigas Center, 1605 Pa ig City Cirtek Advanced Technologies and Solutions, Inc./ Jerry Liu Respondents 116 Bast Main Avenue Phase V Sez, Laguna Technopark Bifian, 4206 Laguna Greetings Please submit the foregoing motion for the consideration and approval of this Honorable Office immediately upon receipt hereof Notice is likewise given to the adverse party of this motion. ATTY. ay F. ERESECopy furnished: Laguesma Magsalin Consulta & Gastardo Counsel for Respondents Unit 765 Prestige Tower F, Ortigas Jr. Road Ontigas Center, 1605 Pasig City Cittek Advanced Technologies and Solutions, Inc./ Jerry Liu Respondents 116 East Main Avenue Phase V Sez Laguna Technopack Bifian, 4206 Laguna XPLi TION, ‘This Motion was served on the other parties via tegistered mail due to time, distance and manpower constraints, which made personal setvice not practicable ATTY. 7 ERESEenrow nentep-gouphslatsteslddslexchratentm ANNES “_é 2 mente eae Das tow Nov 17 ‘COUNTRY, unr symsot_—curo US DOLLAR put peso | CONVER TILE CURRENCIES WITH BANGKO SENTRAL: 1 une stares DOLLAR sp oswoose ——_,c00000 10:30 | 2 anpaN ven wy eocraes ———o.cnens7 o4a7400 8 UNITED KINeDOR PouNo car sean ate09 8 108100 4 HoNcKONG: DOLLAR HK 10764 ztoat saascoo 5 SNMTZERLAND Franc cH asset 016777 s1.:90700 © caNaDa DouaR cad ossiass arate 0.030900 7 SINGAPORE ouar ScD osz001 a 74ts20 srnorsoo 8 AUSTRALIA SOLAR Au asset? 0 75¢a00 8031700 2 BaKRAN ona" BHO 2aarore tia 130472900, 1 savoiaRasin AL SAR azzem09 280880 19.428900 12 RUNE oowaR, BND 062058073880 37199700 43 INbONES uPA OR 0.060062 .goan7a 0.003700 4 THawaN aT Ta owsr7——omera 1541200 15 UNITED ARAB EMIRATES Dini ED a2 o2raa7 121767800 13 crn, ‘Yuan cy osari09 81300 717800 1 KOREA wor ew 0000773 a.pao900 046300 19 EUROPEAN MONETARY UNION EURO EUR 1000009180400 sosreoa OTHERS (Nor CONVERTIBLE WiTH 8SP) 18 ARGENTINA Peso ARS owesse ——_aos7e08 2a10100 20 BRAZIL REAL BRL azenres ——aceaa9 16:990200 21 ENERARK kroner DKK take E8828 051700 22 NOIR RUPEE INR .otseze——.sso8 1.700800 23 ALAYSA rrr MYR 0208517 zateas s2317000 2% Mexico NEWPESO WA oar asses 2702100 25 NEWZEALAND, DOLLAR wo asta? 83500 4.41500 2 NORWAY kwoner NOK ——o.rorot a saga ‘5.089800 2 pkistaN RUPEE PRR 0073. coa606 arasoo 28 SOUTH AFRICA RAND ZAR goats garzor9 670800 29 SWEDEN krone SEK atan369 eto e80 s.orasoo x syn ound sve ao0iss antag oszeo0 31 TAMAN NTOOUAR = TWD gatas a6 1.877300 82 VENEZUELA BOUVAR™* eB aoana1s——ton259 5.47200 ‘Source: REUTERS'N.¥. FOREX CLOSING PRICES 30 Nov 2047 * Wet average ete pursuant to Cua Ltr dele 90 dy #062 "Aslan Tne Ciosing Role aa ot 1720/2077 “THB Onshore pee SP Buying Rate (17) Pop BSP Seng Rate (77) Php 18S Rofcence Rate Pre 0S Ciosng Rao ™ Pp hitpatowmsp.gow phvstatistcstedsfenchrate him “ ectveot Jan 2008 Venezuohts cil oxchange ale was chan * Vous bars e Watvain 9 quote n Reuter’ Soon 9.000000 Gold Buying 51500000 sor Guying 0270000 29.Now.17 100 102.15 betta per dala om 2180 per dla s.2744oo000 ‘6.400000 asomiagnoar ety suite. basi to, nana" t capindent ys ey APPEAR ACE pace perks, “Foe ite Coniplainnatts) Deane Pes os EPP For the Respondents):REPUBLIC OF THE PHILIPPINES§ Hig 6 py COURT OF APPEALS MANILA Séxth Division LAGUESMA MAGSALIN CONSULTA Sixth Division & GASTARDO LAW OFFICES « CIRTEK ADVANCED TECHNOLOGIES AND SOLUTIONS, ANNEX ~_ Petitioner, ~versus- CA G.R. SP No. 152839 DOMINGO B. BONIFACIO AND THE NATIONAL LABOR RELATIONS COMMISSION, Respondents. x MANIFESTATI WITH MOTION Petitioner, CIRTEK ADVANCED TECHNOLOGIES AND SOLUTIONS, INC. [the “Company”], by counsel, respectfully states: 1. Further to our Manifestation with Motion dated 5 March 2018 the Company is attaching herewith as Annex “1”, a copy of the Writ of Execution issued by the Office of the Labor Arbiter directing the satisfaction of the judgment award in this case in ‘the amount of US$ 205,292.00, attorney's fees in the amount of US$ 20,529.20 and directing the payment of execution and deposit fees in the amounts of P104, 198 92 and P52,369.46, respectively. In consideration of the foregoing, the Company respectfiully requests for leave of court and begs the kind indulgence of this Honorable Court as it reiterates its Urgent Motion to resolve Petition for Certiorari with Prayer to issue Temporary Restraining Order [*TRO”] on account of the imminent execution of the assailed Decision and Resolution of public respondent, National Labor Relations Commission [“NLRC”] despite the indubitable and obvious fact that private respondent is not entitled to the subject judgment award corresponding to his separation pay considering that he voluntarily and willingly resigned from the Company. 2. It must be recalled that on 4 October 2017, the Company filed the Petition for Certiorari before this Honorable Court to contest the 30 June 2017 Decision [“Questioned Decision”] and the 31 August 2017 Resolution {*Questioned Resolution”) of public respondent NLRC in “Domingo B.Bonifacio v. Cirtek Advanced Technologies Solutions, Inc. amd Jerry Liu” [From NLRC NCR Case No. 4-00603-16-L/ NLRC LAC No. 06-002103- 17], In said Petition, the Company was able to discuss ané prove that public, respondent NLRC clearly acted without or in excess of its :urisdiction and/or with grave abuse of discretion, 3. In issuing the Questioned Decision and Resolution, public, respondent NLRC clearly acted with undue haste and grave abuge* of discretion amounting to lack of jurisdiction that render the same patently null and void. Thus: A void judgment is not entitled to the respect accorded to a valid judgment, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it {Republic v. Court of Appeals, G.R. No. 127969, 25 June 1399]. 3. Petitioner has pointed out that unless this Hororable Court resolves the Petition within the soonest possible time, gives due course to the Petition and immediately issues a TRO and/or writ of preliminary injunction, the Company will suffer grave and irreparable damage and prejudice in that it will be constrained to bear the effects of a manifestly void order and proceedings. Indeed, if the patently void judgment is executed and, on appeal, the same is reversed, damage may arise which cannot be fully compensated notwithstanding remedies for restitution [See Maceda, It. v. Development Bank of the Philippines, G.R. No. 135128, 26 August 1999] 4. On 8 December 2017, the Company filed an Extremely Urgent Motion to Resolve Petition with Reiterative Prayer to Issue TRO where in view of the urgency of immediate action from this Honorable is evident due to the fact that on 16 November 2017, the Company received a copy of private respondent’s Motion for Execution to which it filed an Opposition on 28 November 2017. Surprisingly, without awaiting for the case to be scheduled for a pre-execution conference, the private respondent again filed an Urgent Second Motion for Issuance of Writ of Execusion that the Company received on 7 December 2017. The Company is, therefore, concerned that private respondent’s acts of filing several Motions for Execution without awaiting that the case be set for a pre-execution conference is an attempt to railroad the execution of the judgment in his favor notwithstanding the evident errors committed by public respondent NLRC.On 18 January 2018, a pre-execution conference was conducted before the Office of Labor Arbuter Generoso V. Santos. Daring the pre- execution conference of the case, the Company through the undersigned counsel manifested the need to consult the Company fitst due to the pendency of this Petition for Certiorari and check whethe: or not there is a possibility of settlement. However, private respondent, without any justified veason, rejected outright any resetting of the conference 01 a later date and moved that all pending incidents be submitted for resolution. Clearly, he is trying to railroad the execution of the judgment award and thereby render the proceedings in the instant Petition moot and academic. 6. On 25 January 2018, the Company filed a Reiterative Urgent Motion to Resolve Petition with Prayer to issue Temporary Restraining Order where the Company reiterated that it would be difficult, if not impossible to recover any amount that may be released to private respondent should execution proceedings ensue despite the glaring errors committed by public respondent NLRC in rendering its Decision and Resolution. Thus, it would be unfair and unjust at this point to execute the judgment award as it would be difficult, if not impossible, for the Company to recover from private respondent in the event that this Honorable Court reverses and sets aside the Decision and Resolution of public respondent NLRC. It must be stressed that the subject of the execution is the monetary award in favor of private respondent in the amount of US$205,292.00 corresponding to his separation pay. Thus, it would necessarily cause irreparable damage to the Company should the judgment award 3e not recovered from private respondent in the event that this Honorable Court reverses and sets aside the Decision and Resolution of public respondent NLRC. 7. — Accordingly, in the interes: of justice, the Company is constrained to humbly and respectfully reiterate its request that this Honorable Court act with urgent dispatch in resolving the Company's application for TRO and/or in resolving the main case at the soonest possible time. The fact that the Writ of Execution has already been served means that the enforcement of the Questioned Decision and Resclution is clearly imminent such that it is, thus, incumbent upon this Honorable Court to resolve the Petition and issue a TRO enjoining the NLRC and/or its agents or officers from further conducting proceedings. 8. The Company is ready and willing to post the necessary bond in a reasonable amount as may be determined by this Honorable Court.PRAYER WHEREFORE, it is respectfully prayed that: 1. the Petition for Certiorari be resolved within the soonest possible time; 2. that a Temporary Restraining Order and/or Writ 0° Preliminary Injunction be immediately issued by this Honorable Court enjoining the National Labor Relations Commission and/or its agents or officers from further conducting proceedings; and 3. the 30 June 2017 Decision and the 31 August 2017 Resolution of the National Labor Relations Commission be reversed and set aside anda hew one rendered affirming the 16 March 2017 Labor Arbiter’s Decision in this case, Other reliefs, just and equitable are likewise prayed for, Pasig City for City of Manila, 6 March 2018 LAGUESMA MAGSALIN CONSULTA & GASTARDO Counsel for Petitioner Unit 705 Prestige Tower, F. Ortigas, Jr, Road OrtigasCenter, Pasig City By: CARLOS LUIS L. FERNANDEZ, PTR No. 3897093; 01-09-18; Pasig City IBP No, 024389; 01-08-18; Quezon City Roll No. 45321 MCLE Compliance No. V-0020565 20 April 2016 CHERRYLYN C. NAVARRA PTR No. 3723693; 01-06-18; Pasig City IBP No. 024392; 01-08-18; Makati Roll No. 62588 MCLE Compliance No. V-0020688 20 April 2016Copy furnished: GERARDO ERESE, ESQ. Counsel for Private Respondent Unit 708, 7" Floor, The Infinity Bonifacio Globai City, Taguig NATIONAL LABOR RELATIONS COMMISSION Public Respondent PPSTA Building, Banawe Street Quezon City JUSTIFICATION Petitioner respectfully complies with Section 11, Rule 13 of the Rules of Court and manifests that copies of this Manifestation wth Motion were served by registered mail for reasons of economy and the distance involved. CHERRYLYN C. NAVARRA.+ > REPUBLIC OF THE PHILIPPINES ) (ae PASIG CITY JSS. 1, ABRAHAM D.V. IGLESIAS, Special Messenger of LAGUESMA MAG CONSULTA & GASTARDO Law Offices, with office address at 705 Prestige Tower, Ii Avenue, Ortigas Center, Pasig City, after being duly sworn, depose and say that: I served copies of the Manifestation with Motion in the case entitled “Cirtck Advanced ‘Technologies and Solutions, Inc., vs. Domingo B. Bonifacio and the National Labor Relations Commission,” docketed as CA-G.R, SP No. 152839 by Registered Mail to: 1. GERARDO ERESE, £SQ. Counsel for Private Respondent | Unit 708 7" Floor, The Infinity Bonifacio Global City, Taguig 2. NATIONAL LABOR RELATIONS COMMISSION Public Respondent PPSTA Building Banawe Street Quezon City poked AER Gg Beg ese Ronsto th pastas return the mail to the sender after ten (10) days if undéfivered, SUBSCRIBED AND SWORN to before me this 6" day of March 2018 affiant ext to me his SSS No. 33-1435148-4. biting Doc. No. _ 26 ; CHERRYUYN C, NAVARRA. Eee Nowy Public for Pasig C: Page No. 3 Appoint. WR e2OES 2018) Book No. i: 13" Degrade DIE Series of 201% PTRNG. SSPE on 8 Be BBP Ne, C2LAGUESMA MAG , SGASTARDO Law opric ANNEX I Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION REGIONAL ARBITRATION BRANCH NO, IV 2e4 Mr. Hectan Commercial G6n; National y cor. ChipecofA Halang, Calamba City, Lag DOMINGO BONIFACIO, Complainant, versus CIRTEK ATS /(ADVANCED TECHNOLOGIES & SOLUTIONS INC.}, AND JERRY LIG, Respondents. OX WRIT OF EXECUTION TO: THE SHERIFF NLRC RAB IV Calamba City, Laguna GREETINGS: WHEREAS, on March 16, 2017, judgment was rendered in the above-entitied portion ceads: case the decr “WHEREFORE, judgment is hereby rendered DISMISSING the complaint for lack of merit SO ORDERED.” WHEREAS, an appeal was interposed by complainant and on June 30, 2017 the Honorable Third Division ofthe NERC rendered a Decision which re as follows: “WHEREFORE, premises considered, this instant Appeal is GRANTED. The Decision dated 16 March 2017 is hereby REVERSED AND SET ASIDE. Respondent-Appellee CIRTEK ADVANCED TECHNOLOGIES ND SOLUTIONS, INC., is hereby ordered to pay Complainant-appellant the amount of US$205,292.00 or its equivalent in Pbilippine currency hased on the prevailing rate of exchange as balance Jor his u separation pay as well as ten percent (10%) of the award as attorney’s fees. vlWrit of Fxceution Ww 80 ORDERED” WHEREAS, respondents’ filed a motion for reconsideration and on August a1 the Honorable Commission rendered its 204 resolution which resds as follows: ‘WHEREFORE, premises considered, Reconsideration is DENIED for lack of merit. bis insiant Motion SO ORDERED.” WHEREAS, on October 19, 2 ‘solution final and exe 17, an Bntry of Judgment was issued deriarin, the ‘atary on September 24, 2017, WHEREAS, a motion ha of Execution is been filed by the compininant, for te i nee of a Writ WHEREAS, there is now a need to a Writ of Execution to saiisf complainant's monetary award. NOW THEREFORE, you are commanded t proceed, to the premises of the fespondents, Cittek ATS (Advance Technologies & Solution, ine.) locate SEZ Laguna Technopark, Binan, Lagana or wherever Philippines and collect the suss of Two US dotlars (U. Prevailing rate of at Phase ¥ it may be found an the Hundred Five Thousand Tso Hundred Ninety $205,252.00) or its equivaient in Philippine currency based on tir xchange representing balance for his separation pay and ‘Twents ¢ Hundred Twenty Nine US Dollars and Twenty Cents (U8$20,529.20} ar its equivalent in Philippine currency ns attorney's fees and endorse the same i 1 Cashier of this Arbitration Branch for appiojniate disposition. Shoutd you jail to coltect the said amount ia cast, you tay satisty the the movahie/immovable properties of the respondents not exempt Com exe me tone nition. You are also to collect vour execution fees amounting te 104,198.02 and 952,369.96 as deposit tee. ubmit your report every month and retien this writwithin & years from issustiee Calamba City, Laguna, February 7, 2018, Arbiter emt