Republic of the Philippines

Court of Appeals
Manila

PRIME POWER MANPOWER

SERVICES as represented by
BERNARDINO CARAMBA
Petitioner,

-versus- CA-G.R. SP No. 154439

THE FIFTH DIVISION OF

THE NATIONAL LABOR
RELATIONS COMMISSION
Public Respondent,

RUEL P. MAURICIO, ET AL.,

Private Respondent.
x---------------------------------------------x

APPLICATION FOR A TEMPORARY RESTRAINING ORDER

and/or ISSSUANCE OF A WRIT OF PRELIMINARY
INJUNCTION

Comes now Petitioner, through the undersigned counsel,

most respectfully avers that:

1. On February 05, 2018, herein Petitioner filed with

this Honorable Court a Petition for Certiorari seeking the nullity
of the Decision1 of the Honorable Fifth Division of the National
Labor Relations Commission dated November 29 2017. A Copy
of the Petition for Certiorari filed before this Honorable Court is
hereto attached as Annex “A” sans annexes.

2. On February 9, 2018, petitioner received the Notice

of the Entry of Judgment issued by the Honorable Fifth
Division of the National Labor Relations Commission for its
Decision2 in the case of Ruel P. Mauricio et. al vs Prime
Power Power Manpower Servces , NLRC LAC No. 05-
001571-17, NLRC NCR Case No. 10-12186-16, 10-12846-16
dated February 2, 2018. The above-mentioned Decision is
precisely the subject matter of the instant Petition for Certiorari
and its enforcement is now the subject of the instant
Application for a TRO and/or the Issuance of a Writ of

1 Attached as Annex “A” in the Petition.

2 Ibid.
Preliminary Injunction. A copy of the Entry of Judgment is
hereto attached as Annex “B”.

3. On February 9, 2018, Petitioner filed before the

National Labor Relations Commission, National Capital Region
Arbitration Branch a Motion for the Issuance of Writ of
Execution of Judgment relative to the above-mentioned case. A
copy of the Motion for the Issuance of Writ of Execution of
Judgment filed by herein private respondents is hereto
attached as ANNEX “C”.

4. Also on February 9, 2018 the Honorable Labor

Arbiter Vivian H. Magsino Gonzalez issued a Notice of Pre-
Execution conference for the above-mentioned Decision
directing the parties to appear on February 28, 2018. A copy of
the Notice of Pre-Execution Conference is hereto attached as
ANNEX “D”.

5. Petitioner now comes before this Honorable Court,

most fervently praying that a Temporary Restraining Order
and/or Writ of Preliminary Injunction be issued to restrain
public respondents or any of its officers from further
proceeding with the execution proceedings in the above-
mentioned case and to direct the public respondents to
maintain the status quo so as not to render moot the Decision
of the Honorable Court, in case the instant Petition for
Certiorari should be granted.

THE PARTIES

6. Petitioner PRIME POWER MANPOWER SERVICES

(PMS for brevity) is a sole-proprietorship, engaged in legitimate
job contracting and registered under the Department of Labor.
A copy of the Certificate of Registration of Prime Power
Manpower Services is as Annex “C” in the Petition. It is
represented by its President, Bernardino V. Caramba. PMS
may be served with the orders, resolutions and other processes
of this Honorable Court at Primepower Bldg., Kalayaan Avenue,
Barangay Pinagkaisahan, Makati City, Metro Manila, 1213.

7. Public respondent FIFTH DIVISION OF THE

NATIONAL LABOR RELATIONS COMMISSION (NLRC) may be
served with processes and orders of the Honorable Court at
PPSTA Building, 245 Banawe St, Quezon City, 1114 Metro
Manila.

8. Private Respondents RUEL P. MAURICIO,

WILBERT G. BUMANGHAT, MACARIO T. TELPO, ADOLFO L.
SIABAL, REGILITO L. GATCHALIAN, ELEUTERIO A.
SABELO, ISRAELIANO A. ROQUE, BENIGNO L. PARALLAG
IN, GUALBERTO T. CAYUBIT, ARIEL S. HUFANCIA, RAYJER
K. CANON, LOREN V. RALLOS, EDUARDO C. BOCALA,
ROMEL A. CALLOS, TOMAS C. TANEO, EDUARDO FABIANI,
DONALD TAGANIA, AND HEGINIO S. DIZON, of legal ages,
and for purposes of this Petition have common address at
Block 46, Lot 22, Las Palmas Subdivision, Sta. Maria Bulacan.
They may be served with notices,orders, decisions, resolutions
and other processes of this Honorable Court through their
counsel at Villa and Associates Law Office, Suite B, 2nd Floor,
Overland Park Bldg. No. 245 Banawe St. Corner Quezon
Avenue, Quezon City.

BRIEF STATEMENT OF FACTS

9. This case stemmed from a complaint for

regularization and monetary claims for wage differentials,
underpayment of labor standard benefits and moral and
exemplary damages filed by the herein Private Respondents
before the NLRC National Capital Region Arbitration Branch
against herein Petitioner.

10. In the Position Paper3 and Reply4 however, the

Private Respondents belatedly alleged illegal dismissal and
entitlement to separation pay which is entirely different with
their cause of action in their complaint which is a prayer for
regularization and monetary claims for wage differentials,
underpayment of labor standard benefits and moral and
exemplary damages .

11. On June 06 2016, herein Petitioner filed its Position

Paper5 alleging that herein Private respondents are contractual
employees hired by Petitioner PMS on various dates for a
period of five (5) months, and assigned and posted as driver/
mechanic at ABS-CBN Corporation.

12. Herein private respondents all worked at ABS-CBN

as driver/mechanics from the date of their hiring until January
15, 2016 when ABS-CBN ended its contract with herein
Petitioner. As a reason for the end of contract, Petitioner was
compelled to pull-out its employees from ABS-CBN. PMS
employees (herein private respondents) through a memo6 dated

3 Attached as Annex “D” in the Petition

4 Attached as Annex “E”in the Petition
5 Attached as Annex “F”in the Petition
6 Attached as Annex “E” Petitioner’s Position Paper dated June 06, 2016
January 11 2016 were advised to report to PMS Headquarters
for reassignment or for resignation clearance if ever they want
to be absorbed by the new manpower agency contracted by
ABS-CBN.

13. Herein private respondents, Mauricio, Callos, Telpo,

Cayubit and Taneo resigned from PMS. A copy of their
resignation forms are attached respectively as Annexes “G”,
“H”, “J”, “K”, “L” in the Position Paper of herein Petitioner dated
June 06, 2016.

14. Also, in the Position Paper, herein Petitioner argued

that the Private Respondents were merely pulled out or recalled
from their posting at ABS-CBN for reassignment with a new
client as PMS and ABS-CBN already terminated their service
contract. There was no illegal dismissal to speak of and
corollary no separation pay should be awarded to the herein
private respondents.

15. On June 16, 2016, herein Petitioner filed its Reply7

reiterating that the private respondent’s claim for illegal
dismissal with claim for backwages and separation pay is
bereft or devoid of any legal basis

16. Thus, in a Decision8 dated June 20, 2016, Labor

Arbiter Julio Gayaman dismissed the complaint for utter lack
of substantiation. The Decision reads:

“Verily, the evidence on record could not

be interpreted in any other way, and no other
findings could be drawn from the evidence on
record, except to the conclusion that
complainants totally failed to substantiate their
claims in their respective complaint.”

17. Herein private respondents appealed the Decision9

of Labor Arbiter Julio Gayaman dated June 20, 2016. In a
Decision promulgated September 07, 2016, the Honorable First
Division affirmed the Decision of the Labor Arbiter Julio
Gayaman ruling that herein private respondents failed to
discuss sufficiently in detail their cause of action relative to
their claims.

7 Attached as Annex “G” in the Petition

8 Attached as Annex “H” in the Petition
9 Attached as Annex “I” in the Petition
 18. The Decision dated September 07, 2016 became
final and executory as per the Entry of Judgment10 issued by
the Honorable 1st Division of the NLRC.

19. Despite the case being dismissed Private

Respondents again filed before the NLRC NCR Regional
Arbitration Branch a complaint for Illegal Dismissal with Prayer
for Regularization and various money claims. A copy of the
Position Paper of the private respondents sans Annexes is
attached as Annex “K” in the Petition.

20. In its Position Paper11 dated 18 November 2016,

herein petitioner argued that the present complaint is barred
by res judicata and should not be allowed to be litigated anew
having been finally adjudged in a court with jurisdiction. The
Position paper likewise discussed again in detail the fact that
there was no illegal dismissal to speak of since herein private
respondents were merely pulled out from ABS-CBN due to the
expiration of the service contract between ABS-CBN and PMS.
Again, the memo12 dated January 11, 2016 was presented to
prove the claim that herein private respondents were requested
to report to PMS Main office for reassignment, and that some of
the herein private respondents executed resignation clearance
forms for them to be assigned to the new manpower agency
contracted by ABS-CBN.

21. In the Decision13 March 15, 2017, the complaint

was dismissed by the Honorable Labor Arbiter Vivivan
Magsino Gonzales due to res judicata and forum shopping.

22. On 10 April 2017, herein private respondents filed

before the Honorable NLRC a notice of appeal and
memorandum of appeal14 on the Decision dated March 15,
2017. A Reply Memorandum15 was filed by the herein
Petitioners on April 21, 2017 arguing that res judicata is
present as the issue of the alleged illegal dismissal was fully
considered and acted upon by the Honorable Labor Arbiter
Julio Gayaman hence, the present action for illegal dismissal is
already barred by res judicata.

10 Attached as Annex “J” in the Petition

11 Attached as Annex “L” in the Petition
12 Supra note 6
13 Attached as Annex “M” in the Petition
14 Attached as Annex “N” in the Petition
15 Attached as Annex “O” in the Petition
 23. On 15 June 2017, the Honorable NLRC Fifth
Division granted the appeal16 of the herein private respondents
and remanded the case to the Labor Arbiter for resolution.

24. On 8 September 2017, a Decision17 was

promulgated by Labor Arbiter Magsino Gonzales declaring
complainants to have been constructively dismissed and
ordering herein petitioner to pay P 1,365,962 as separation
pay without backwages.

25. It should be noted that no backwages was awarded

Honorable Labor Arbiter Vivian H. Magsino Gonzalez to the
herein private respondents. The Decision was not appealed
by the herein private respondents while herein Petitioners
filed its Memorandum of Appeal18 arguing that the Honorable
Labor Arbiter Magsino Gonzales acted grave abuse of discretion
in declaring that herein private respondents were
constructively dismissed and alleged gross error in awarding
separation pay.

26. On November 29, 2017, a Decision19 was

promulgated by the Honorable NLRC Fifth Division dismissing
the appeal by the Petitioners and affirmed the Decision of the
Honorable Labor Arbiter Magsino-Gonzales but added with
modification full backwages which was not raised on appeal to
the NLRC by the herein Petitioners nor was prayed for by the
Private Respondents as no Reply Memorandum was filed by
them.

27. Resultantly, since Private Respondents did not

appeal from the foregoing findings of the Labor Arbiter, they
should be deemed to have accepted those factual findings. If
they had truly felt aggrieved, Private Respondents themselves
should have questioned the Labor Arbiter’s findings with the
NLRC. In this case, there was no appeal as to the findings of
the Labor Arbiter. Corollary, it is with all due respect that
the Honorable Fifth Division awarded full backwages
without jurisdiction since it was not interposed on appeal.

28. Thus, on 05 February 2018, herein Petitioner filed

before this Honorable Court a Petition for Certiorari
questioning the authority of the Honorable Fifth Division of the
NLRC to award full backwages which is not a subject of the

16 Decision of the Honorable Fifth Division NLRC dated 15 June 2017, a Certified True Copy is
attached as Annex “P” in the Petition
17 Supra note 1
18 Attached as Annex “Q” in the Petition
19 Supra Note 1
appeal by the herein Petitioners before the Honorable NLRC
Fifth Division nor was questioned by the Private Respondents
as they did not appeal the Decision of the Honorable Labor
Arbiter Gonzales.

29. Petitioner now comes before the Honorable Court,

most respectfully praying that a Temporary Restraining Order
and/or a Writ of Preliminary Injunction be issued, pending the
Resolution of the Honorable Court in the instant Petition for
Certiorari. Moreover, allowing the herein Public Respondents to
continue with the execution proceedings would cause grave
and irreparable injury to the herein Petitioner considering that
the amount involved is so substantial and it will be well-neigh
impossible to recover these substantial amounts in case the
Petition for Certiorari be granted.

ON THE APPLICATION FOR A TEMPORARY

RESTRAINING ORDER AND/OR WRIT OF
PRELIMINARY INJUNCTION

30. Petitioner now most humbly request, by way of this

application, for the issuance of a Temporary Restraining Order
and/or the issuance of a Writ of Preliminary Injunction to
restrain public respondents, and any of its officers, from
implementing and enforcing the Decision20 of the public
respondent NLRC awarding full back wages in addition to the
separation pay awarded by the Honorable Labor Arbiter
Magsino-Gonzales.

Allegations in Support of the

Application for a Temporary
Restraining Order and/or a
Writ of Preliminary
Injunction

31. Rule 58, Section 3 of the Rules of Court provide that

a preliminary injunction may be granted when it is established:

(b) That the commission, continuance

or non-performance of the act or
acts complained of during the
litigation would probably work
injustice to the applicant;

32. It is most respectfully manifested to the Honorable

Court that the subject of the instant petition for certiorari is

20 ibid
the authority of the Honorable Fifth Division of the NLRC to
award full backwages for the reason that same is not in issue
and not interposed on appeal by the herein Petitioners nor
prayed for by the Private Respondents as they opted not to
appeal the Decision of the Honorable Labor Arbiter Magsino-
Gaonzales which only awarded separation pay. Thus, allowing
the Decision of the Honorable Fifth Division of the NLRC to be
subjected to execution proceedings would work injustice to
herein Petitioner because it is precisely the validity of the
Decision which is now in question before this Honorable Court.

33. To reiterate, it is most respectfully argued that the

Decision of the Honorable Fifth Division of the NLRC is a
patent nullity as it has no authority to award full backwages
since the same was not interposed on appeal nor prayed for by
the Private Respondents as they themselves precisely did not
file an appeal.

34. Also, despite overwhelming evidence submitted by

the herein Petitioners belying the claim of illegal dismissal,
and notwithstanding jurisprudence declaring that bare
allegations are not sufficient basis for a claim and that it must
be supported by substantial evidence at the very least, the
public respondent NLRC still ruled in favor of private
respondents disregarding the established rules of evidence.

35. It may also not be amiss to state that a Decision

issued by the Honorable First Division of the NLRC dated
September 07, 2016 dismissed the claim for illegal dismissal by
herein private respondents as they were not able to
substantiate their claims relative to their complaint. The Entry
of Judgment of the Decision of the First Division of the
Honorable NLRC was attached as Annex “J” in the Petition.

36. Since a motion for the issuance of a writ of

execution has been filed by private respondents, it can now be
raised that to allow public respondent’s Decision to be enforced
against petitioners would result in grave and irreparable injury
to them, especially considering that the total amount awarded
is so substantial and would be financially injurious to
petitioner. Further, the award granted in favor of private
respondents is without factual and legal basis.

37. There is also an immediate and urgent need to issue

a Temporary Restraining Order and/or Writ of Preliminary
injunction against public respondents to prevent them from
further conducting proceedings a quo so as not to render moot
the resolutions of the issues in the instant Petition for
Certiorari. Assuming that petitioners are ordered to pay the
private respondents, it would be well very impossible for
petitioners to recover that amount from private respondents
should this Honorable Court reverse it.

38. Petitioners are able and willing to post a bond in an

amount determined by this Honorable Court, conditioned
upon payment of all damages that private respondents may
suffer should petitioners be eventually adjudged not entitled to
the injunction sought in the first place.

39. Under Rule VII, Section 14 of the 2011 NLRC Rules

of Procedure, “except as provided in Section 9 of Rule X, the
decisions, resolutions or orders of the Commission shall
become final and executory after ten (10) calendar days from
receipt thereof by the counsel or authorized representative or
the parties if not assisted by counsel or representative.”

40. However, in Sara Lee Philippines, Inc. vs.

Macatlang et al.21 the Court affirmed its previous ruling in
Go v. Abrogar22 wherein the Court held that the principle of
judicial courtesy applies "if there is a strong probability that the
issues before the higher court would be rendered moot and
moribund as a result of the continuation of the proceedings in
the lower court."

41. Thus, pending the resolution of the instant Petition,

the enforcement of the award by the public respondents
should be restrained by the Honorable Court.

PRAYER

WHEREFORE, premises considered, it is most

respectfully prayed that this Honorable Court to GRANT
Petitioners' Application, and issue a temporary restraining
order/preliminary injunction, on such terms as it may deem
just, to restrain the public respondents, and their officers,
agents or other persons acting under their authority or
supervision from further conducting execution proceedings to
enforce the judgment award.

Other reliefs just and equitable under the premises are

likewise prayed for.

Respectfully submitted.

21 G.R. No. 180147, January 14, 2015

22 A.M. No. RTJ-03-1759. February 27, 2003
 Quezon City for Manila. Febraury February 19, 2018

THE LAW FIRM OF FERRER

Suite 315 PASDA Mansion
77 Panay Ave. cor. Timog Ave., Q.C.
Telephone/Fax: (02) 372-3131 to 32
eMail: thelawfirmofferrer@yahoo.com
By:

JOEL B. FERRER
Roll No. 37540
IBP Lifetime No. 07889/01-07-2009
PTR No. 5521939/01-04-18/Quezon City
MCLE Compliance No. V-0021691/
Issued on 05-25-2016/Pasig City

ROTCIV R. CUMIGAD
Roll no. 68067
IBP O.R. No. 004916/05-16-17/Cagayan Chapter
PTR No. 5642366/01-11-2018/Quezon City
MCLE Compliance Number Pending (Admitted ’17)

EXPLANATION

Due to the distance between the office of the undersigned

counsel and the private respondent’s counsel and the dearth
of messenger, personal service of this Application For A
Temporary Restraining Order And/Or Writ Of Preliminary
Injunction is impracticable, hence, service is hereby made
through registered mail.

ROTCIV R. CUMIGAD
Copies furnished:

The Honorable Fifth Division

National Labor Relations Commission
Public Respondent
PPSTA Building, 245 Banawe St,
Quezon City, 1114 Metro Manila.

RUEL P. MAURICIO, ET AL.,

Private Respondents
Block 46, Lot 22, Las Palmas Subdivision,
Sta. Maria Bulacan

VILLA AND ASSOCIATES

Counsel for Private Respondents
Suite B, 2nd Floor, Overland Park
Bldg. No. 245 Banawe St. Corner
Quezon Avenue, Quezon City
 VERIFICATION

I, ROTCIV R. CUMIGAD, Filipino, of legal age, single,

with office address at 315 PASDA Mansions, 77 Panay Avenue
cor. Timog Avenue, Quezon City, after having been sworn to in
accordance with law hereby deposes and states that:

1. I am the counsel of the Petitioner in the instant case;

2. I have caused the preparation and filing of the

foregoing APPLICATION FOR A TEMPORARY
RESTRAINING ORDER and/or ISSSUANCE OF A
WRIT OF PRELIMINARY INJUNCTION;

3. I have read and understood the foregoing pleading

and affirm that the contents thereof are true and
correct on the basis of authentic records at hand;

IN WITNESS WHEREOF, I have hereunto affixed my signature

this __________day of __________________ 2018 at Quezon City.

ROTCIV R. CUMIGAD
Affiant

SUBSCRIBED AND SWORN to before me this _________

day of 2018 affiant being personally known to me and who
likewise presented his ________________________.

Doc. No. __________;

Page No. __________; NOTARY PUBLIC
Book No. _________;
Series of 2018.
Republic of the Philippines )
Quezon City ) SS.
x-------------------------x

AFFIDAVIT OF SERVICE

I, JOHN DALE SACAY, with office address at Suite 315 PASDA Mansion, 77
Panay Ave. cor. Timog Ave., Quezon City, under oath, depose and state that:

1. On 20 February 2018, I filed copies of the APPLICATION FOR A TEMPORARY

RESTRAINING ORDER and/or ISSSUANCE OF A WRIT OF PRELIMINARY
INJUNCTION in the case entitled “PRIME POWER MANPOWER SERVICES as
represented by BERNARDINO CARAMBA vs. THE FIFTH DIVISION OF THE
NATIONAL LABOR RELATIONS COMMISSION and RUEL P. MAURICIO, ET AL.,
CA-G.R. SP No. 154439” pursuant to Sections 3, 4, 5 and 10, Rule 13 of the
Rules of Court as follows:

Personal Service:

The Honorable Court of Appeals

Manila

By Registered Mail:

The Honorable Fifth Division

National Labor Relations Commission
Public Respondent
PPSTA Building, 245 Banawe St,
Quezon City, 1114 Metro Manila.

RUEL P. MAURICIO, ET AL.,

Private Respondents
Block 46, Lot 22, Las Palmas Subdivision,
Sta. Maria Bulacan

VILLA AND ASSOCIATES

Counsel for Private Respondents
Suite B, 2nd Floor, Overland Park
Bldg. No. 245 Banawe St. Corner
Quezon Avenue, Quezon City

by depositing a copies of the same in sealed envelopes at the Bermejo

Law Office Postal Station, Quezon City on February 20, 2018 as
evidenced by their respective Registry Receipts attached to the
Honorable Court of Appeals’ copy, with instructions to the postmaster
to return the mail to the sender after ten (10) days if undelivered.

SIGNED: in Quezon City; on 19 February 2018.

JOHN DALE SACAY

Affiant
 SUBSCRIBED AND SWORN to before me, affiant exhibiting to me his TIN No.
293-232-357.

SIGNED AND SEALED: in Quezon City; on ____________________.

Doc. No. ______;

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