RECEIVING

COPY
(FILED WITH CD AND VERIFIED
Republic of the Philippines
SUPREME COURT
City of Manila

________ DIVISION

JAIME S. DAITO, DOING BUSINESS

UNDER THE NAME AND STYLE, JEREMIE
CONSTRUCTION DESIGN AND
CONSULTANCY,
Petitioner,

G.R. No. ____________________

- VERSUS - (CA-G.R. No. SP. No. 154465)

DOMINGA LATURNAS FOR AND

ON BEHALF OF HER HUSBAND
UPRESINO W. LATURNAS (DECEASED),
Respondent.
x-------------------------------------------------------------x

PETITION FOR REVIEW

ON CERTIORARI

Petitioner, to this Honorable Supreme Court, most respectfully

states:

I.
NATURE OF THE PETITION

This is a Petition for Review on Certiorari under Rule 45 of the

Revised Rules of Court seeking to reverse and set aside the following
Decision and Resolution of the Court of Appeals in CA-G.R. No. SP.
No. 154465 entitled Jaime S. Daito, doing business under the name
and style Jeremie Construction Design and Consultancy vs. National
Labor Relations Commission (Second Division), and Dominga
Laturnas for and on behalf of her husband, Upresino W. Laturnas
(Deceased):

a] Decision promulgated on 21 May 2019 which denied

Petitioner Jaime S. Daito’s Petition for Certiorari (certified copy
of the assailed Decision attached hereto as Annex “A”);1and

1
Annexes, pp. 1-8
1|Page PETITION FOR REVIEW
 b] Resolution promulgated on 04 February 2020 which denied
Petitioner Jaime S. Daito’s Motion for Reconsideration of the
Decision promulgated on 21 May 2019 by the court a quo
(certified copy of the assailed Resolution attached hereto as
Annex “B”).2

II.
THE PARTIES
Petitioner Jaime S. Daito (hereafter referred to as “Petitioner
Daito") is the sole proprietor of Jeremie Construction Design &
Consultancy. Petitioner Daito is married, of legal age, Filipino citizen,
and residing at No. 0240-106 Brgy. Sta. Rosa 1 3019 Marilao,
Bulacan, where he may be served with notices and processes of this
Honorable Court.

Respondent Dominga Laturnas (hereafter referred to as

“Respondent Laturnas”) is of legal age, Filipino citizen, widow of
Upresino W. Laturnas (hereafter referred to “Deceased Upresino”)
and residing at No. 26 Villa Lourdes Loma de Gato, 3019 Marilao,
Bulacan where she may be served with notices and processes of this
Honorable Court.

III.
MATERIAL DATES

On 18 February 2020, Petitioner Daito received a copy of the

Court of Appeals’ Resolution dated 04 February 2020 denying his
Motion for Reconsideration of the Court of Appeals’ Decision of 21
May 2019 in the case entitled Jaime S. Daito, doing business under
the name and style Jeremie Construction Design and Consultancy
vs. National Labor Relations Commission (Second Division), and
Dominga Laturnas for and on behalf of her husband, Upresino W.
Laturnas (Deceased) docketed as CA-G.R. No. SP. No. 154465.

As provided for under Section 2, Rule 45 of the Revised Rules

of Court, Petitioner Daito has fifteen (15 days) or until 04 March 2020
within which to file this Petition for Review on Certiorari.

Thus, this Petition for Review is filed within the allowed period
of time.

IV.
2
Annexes, pp. 9-10
2|Page PETITION FOR REVIEW
 STATEMENT OF MATERIAL
FACTS and PROCEEDINGS

1] On 5 August 2016, Respondent Laturnas for and on behalf

of her husband, Deceased Upresino filed with the Regional
Arbitration Branch of the National Labor Relations Commission
(NLRC) in Pampanga a complaint against Petitioner Daito and
Jeremie Construction Design and Consultancy for money claims
(specifically wage differentials, 13th month pay, and service incentive
leave pay) alleging that Deceased Upresino was employed by
Jeremie Construction Design and Consultancy as a regular
employee with the position of mason continuously during period
covering year 2009 until Upresino's untimely demise on 22 June
2016 (Respondent Laturnas’ Position Paper and Reply to Petitioner
Daito’s Position Paper attached hereto as Annexes “C”3 and “D,”4
respectively).

2] In her Position Paper, Respondent Laturnas alleged the

following:

2.1] Page no. 2 of Position Paper

STATEMENT OF FACTS

Upresino was first employed with Jeremie as a mason

last 2009.

5
His salary history was as follows:

PERIOD DAILY WAGE RATE

2009 - 2010 Php250.00
2011 - 2016 Php300.00

2.2] Page no. 3 of the Position Paper

To be allowed entry to any Jeremie’s project, its workers

6
were issued tshirts.

PERIOD SHIRT COLOR

2011 - 2012 Yellow
2013 Violet
2014-2016 Green

3
Annexes, pp.11-26
4
Annexes, pp.27-28
5
Annexes, p. 12
6
Annexes, p. 13
3|Page PETITION FOR REVIEW
 2.3] Page no. 6 of the Position Paper

Deceased Upresino had been working as a mason for

Jeremie since 2009.

Upresino’s work as a mason was necessary and

desirable in Jeremie’s business given that it is into the
construction business.

Therefore, he was a regular employee enjoying security

7
of tenure.

3] Proceeding from the foregoing allegations, Respondent

Laturnas verified the truthfulness thereof affirming that the afore-
stated allegations are supported by authentic records as shown in her
Position Paper. To quote:

VERIFICATION and
CERTIFICATION AGAINST FORUM SHOPPING
xxxx

3. That I have read and understood the allegations therein,

and the same are true and correct of my knowledge and
based on authentic records. (underscoring and
8
increased font size supplied)

4] Notwithstanding the afore-quoted portion of Respondent

Laturnas’ Verification, NONE of the pleadings she filed with the
Regional Arbitration Branch is supported by any single piece of
document that could substantiate her allegations, affirmed under
oath, that Deceased Upresino:

4.1] was continuously employed for seven (7) years as a

mason by Petitioner Daito/Jeremie Construction Design
and Consultancy despite the jurisprudentially
acknowledged off-and-on nature of work in the
construction industry; and

4.2] was already employed by Petitioner Daito/Jeremie

Construction Design and Consultancy on a continuous
basis beginning the year 2009 or even before Ronaldo
Fuentes (job contractor of Petitioner Daito) hired his
services as a mason on or at about April 2015.

7
Annexes p. 16
8
Annexes p. 20
4|Page PETITION FOR REVIEW
 5] Both in Petitioner Daito’s Position Paper (Annex “ E”)9 and
Reply (Annex “F”)10 to Respondent Laturna’s Position Paper,
Petitioner Daito asserted that there never existed an employer-
employee relationship between him and Deceased Upresino, given
the following reasons:

5.1] That Petitioner Daito is the Property Manager of

Beverly Homes Subdivision and from time to time Beverly
Homes is awarding/contracting out to him some
construction works through the latter’s company - Jeremie
Construction Design and Consultancy;

5.2] That Jeremie Construction Design and Consultancy is

engaged in the preparation of construction design and
consultancy job pertaining to construction-related works
and construction project management; and

5.3] That Petitioner Daito does not employ any worker in

undertaking its business economic activities mentioned in
sub-paragraph 5.2 above. Instead, it contracted
subcontractors (with their own hired workforce) under the
pakyaw system.

6] In his Rejoinder (Annex “G”),11 Petitioner Daito asserted that

the sub-contractor who hired the services of Deceased Upresino was
Ronaldo Fuentes.

7] The pertinent portion of Ronaldo Fuentes’ un-refuted

Sinumpaang Salaysay12 (Annex “A” of Petitioner Daito’s Rejoinder),
which substantially established the fact of Deceased Upresino’s
period of limited employment from April 2015 up to June 6, 2016
only, contrary to Respondent Laturnas’ bare and self-serving
allegation of seven (7) years continued employment in Jeremie
Construction Design and Consultancy, reads as follows:

“3. Na noong Abril 2015, nakakuha ako ng trabaho sa

Jeremie Construction Design and Consultancy na gumawa ng
isang (1) bahay na muna sa Beverly Homes na nasa Loma De
Gato, Marilao, Bulacan.”

xxxx

9
Annexes, pp. 29-33
10
Annexes, pp. 34-39
11
Annexes, pp. 40-46
12
Annexes pp. 47-48
5|Page PETITION FOR REVIEW
 “5. Na isa sa aking mga trabahador sa aking nakuhang
kontrata sa paggagawa sa Beverly Homes ay si Upresino W.
Laturnas, na kilala ko na binata na umuuwi sa Loma De Gato,
Marilao, Bulacan.”

xxxx

“8. Na matapos na magsimula na magtrabaho sa akin si

Upresino W. Laturnas noong humigit kumulang Abril 2015
hindi nagtagal siya ay naaksidente noong ika-6 ng Hunyo
2016.”

RULING RENDERED BY
THE LABOR ARBITRATION
BRANCH REGION III

8] On 12 May 2017, Hon. Labor Arbiter Roderick Q. Almeyda

(hereafter referred to as “Labor Arbiter Almeyda”) promulgated a
Decision the dispositive portion of which reads as follows:

“WHEREFORE, judgment is hereby rendered ordering Jeremie

Construction (Jeremie Construction Design and Consultancy) and its
owner Jaime S. Daito to pay complainant Dominga Laturnas in behalf
of her deceased spouse Upresino Laturnas the following:

1. Wage Differentials Php41,147.60

2. 13th Month Pay Php26,828.96
3. Service Incentive Leave Pay Php5,245.00
4. 10% Attorney’s Fees Php7,322.15

TOTAL - Php80,543.71

The rest of the money claims, including moral and exemplary

damages, are denied for lack of merit.

The attached computation sheet of the complainant’s

judgment awards shall form an integral part of this Decision.

SO ORDERED.

City of San Fernando, Pampanga, May 12, 2017.”

Copy of aforesaid Decision promulgated on 12 May 2017 is

attached hereto as Annex “H.”13

9] It should be noted that Labor Arbiter Almeyda based the

above computation of monetary award from period covering 06 June
2013 up to 06 June 2016, which he termed as the “unprescribed

13
Annexes, pp. 49-59
6|Page PETITION FOR REVIEW
period of entitlement.”14 Notwithstanding, that the only evidence
extant in the record of this case is that Deceased Upresino was hired
by Ronaldo Fuentes (Petitioner Daito’s sub-contractor) on April 2015
as discussed in paragraph no. 7 above.

RULING RENDERED BY
THE NLRC

10] On 11 August 2017, Petitioner Daito perfected an appeal

with the NLRC. The following Assignments of Error were raised:

10.1] Serious error in finding that there existed employer-

employee relationship despite absence of even a scant
evidence proffered by Respondent Laturnas;

10.2] Serious error in finding that complainant-appellee

dominga is entitled to wage differentials, 13th month pay,
service incentive leave, and attorney’s fees; and

10.3] Serious error in finding that Respondent Laturnas is

the lawfully wedded spouse of Deceased Upresino.

Copy of Petitioner Daito’s Memorandum of Appeal is attached

hereto as Annex “I.”15

11] Thereupon, Respondent Laturnas filed with the NLRC her

Answer to Petitioner Daito’s Memorandum of Appeal. Copy of
Respondent Laturnas’ Answer is attached hereto as Annex “J.”16

12] On 29 September 2017, the NLRC promulgated its first

assailed Resolution (Annex “K”)17 the dispositive portion of which
reads as follows:

“WHEREFORE, the appeal is DISMISSED. The Labor

Arbiter is AFFIRMED.

SO ORDERED.

Quezon City, Philippines.”

14
Annexes, p. 56
15
Annexes, pp. 60-82
16
Annexes, pp. 83-91
17
Annexes, pp.92-101
7|Page PETITION FOR REVIEW
 13] By way of summary, the NLRC, without ever dwelling on
the questioned period of employment of Deceased Upresino, held as
follows:
13.1] Respondent Laturnas indicated in her position paper
that Deceased Upresino was employed by Petitioner Daito
since 2009. He worked as a construction worker, a job
usually necessary and desirable in the business of
Petitioner Daito. Thus, he had already attained regular
status. He is a regular employee of Petitioner Daito; 18

13.2] Petitioner Daito failed to present convincing evidence

that Ronaldo Fuentes is a legitimate job contractor. As
such, Ronaldo Fuentes is a mere agent of Petitioner Daito.
Deceased Upresino’s real employer is Petitioner Daito; 19

13.3] In consequence of the legal relationship between

Petitioner Daito and Ronaldo Fuentes discussed above,
the real employer of Deceased Upresino is Petitioner Daito,
although it was Ronaldo Fuentes who hired him on April
2015;20 and

13.4] Respondent Laturnas is entitled to the monetary

award as computed by Labor Arbiter Almeyda, given the
fact that she is legally married to Deceased Upresino as
evidenced by a Certificate of Marriage issued by the Office
of the Civil Registrar General extant in the record of this
case.21

14] On 6 November 2017, Petitioner Daito moved for

reconsideration of the 29 September 2017 NLRC Resolution
whereby paragraph no. 24 of his Motion for Reconsideration (copy
attached hereto as Annex “L.”)22 states as follows:

“24] Assuming, but not admitting, that Respondents-

Appellants Jeremie and Daito is subsidiarily liable, the amount of
monetary liability should have been confined solely for the period
of time Deceased Upresino was employed by Mr. Ronaldo
Fuentes from April 2015 up to June 6, 2016. Elsewise stated,
the computation of monetary award granted to Complainant-
Appellee Dominga, with all due respect, should be
changed/revised, as follows:

18
Annexes, p.96
19
Annexes p.100
20
Ibid
21
Annexes p. 97
22
Annexes, pp. 102-110
8|Page PETITION FOR REVIEW
 From: period covering June 6, 2013 – June 6, 2016

To : period covering April 1, 2015 – June 6, 2016”

Where 01 April 2015 was the date Deceased Upresino was
hired by Ronaldo Fuentes (sub-contractor of Petitioner Daito) and 06
June 2016 was the date Deceased Upresino figured in an accident.

15] In a Resolution promulgated on 29 November 2017

(Annex “M”),23 the NLRC denied Petitioner Daito’s Motion for
Reconsideration finding no cogent reason to depart from its earlier
findings.

RULING RENDERED BY
THE COURT OF APPEALS

16] Unperturbed, Petitioner Daito filed a Petition for Certiorari 24

before the Court of Appeals where he raised the following issues:

16.1] Whether or not the NLRC seriously erred and

committed grave abuse of discretion amounting to lack or
in excess of jurisdiction when it ruled that deceased
Upresino was employed by Petitioner Daito/Jeremie
Construction Design & Consultancy as regular employee
with the position of mason continuously during period
covering year 2009 until Upresino’s untimely demised on
22 June 2016.25

16.2] Whether or not the NLRC seriously erred and

committed grave abuse of discretion amounting to lack or
in excess of jurisdiction when it ruled that Dominga
Laturnas, widow of Deceased Upresino W. Laturnas, is
entitled to her monetary claims covering the
“unprescribed period of entitlement” from June 6, 2013 up
to June 6, 2016.26

17] In a Resolution dated 21 May 2019, the Court of Appeals

held that the NLRC did not commit grave abuse of discretion. The
CA further held that:

“By the same token, the computations, as well as the propriety of

the awards to Upresino are conclusive and unquestionably factual
issues that were adequately discussed and ruled upon by the NLRC.

23
Annexes, pp. 111-113
24
Annexes, pp. 114-140
25
Annexes, p. 118
26
Annexes, p.119
9|Page PETITION FOR REVIEW
 Judicial review of labor cases does not go beyond the evaluation of the
sufficiency of the evidence upon which its labor officials’ findings rest.
As such, the findings of facts and conclusion of the NLRC are generally
accorded not only great weight and respect but even clothed with
finality and deemed binding on this Court as long as they are
supported by substantial evidence.’27

18] Petitioner Daito filed a Motion for Reconsideration 28 of the

21 May 2019 Resolution of the Court of Appeals mentioned in the
preceding paragraph, which was subsequently denied in a Resolution
promulgated on 20 February 2020. At this point, paragraph no. 14 of
Petitioner Daito’s Motion for Reconsideration is worth re-stating
below:

“14] As measured by the foregoing legal and jurisprudential

yardsticks, it was an error, with all due respect, for the Public
Respondent to have resolved that:

14.1] Deceased Upresino was employed by any of

Petitioner Jaime S. Daito’s sub-contractors before April
2015;

14.2] Deceased Upresino continuously work as a mason,

who was directly employed by Mr. Ronaldo Fuentes, from
April 2015 up to June 6, 2016; and

14.3] the monetary award granted to Private Respondent

Dominga was computed based on an employment period
29
covering June 6, 2013 up to June 6, 2016.”

19] At this point, Petitioner Daito pleads to this Honorable

Court to rectify the above rulings of the Court of Appeals for not only
do they contravene the law and prevailing jurisprudence. The above-
mentioned rulings of the Court of Appeals are also irrational and
unjust because material facts or circumstances have been
overlooked or misinterpreted by the Court of Appeals.

V.
REASON FOR ALLOWING THE PETITION

ALTHOUGH THE QUESTION OF WHETHER OR NOT DECEASED

UPRESINO WAS EMPLOYED BY PETITIONER DAITO/JEREMIE

27
Annex A, CA Decision, pages 7 - 8
28
Annexes, pp. 181-194
29
Annexes, pp. 189
10 | P a g e PETITION FOR REVIEW
 CONSTRUCTION DESIGN & CONSULTANCY AS REGULAR
EMPLOYEE WITH THE POSITION OF MASON CONTINUOUSLY
DURING PERIOD COVERING YEAR 2009 UNTIL 06 JUNE 2016 30
IS FACTUAL IN NATURE AND AS A GENERAL RULE IS BEYOND
THE SCOPE OF RULE 45 PETITION, THE MISAPPREHENSION OF
FACTS BY THE COURT A QUO AND THE UTTER DISREGARD OF
THE EVDENCE ON RECORD, BEHOOVES THIS HONORABLE
COURT TO REVIEW THE RECORDS AND THE ARGUMENTS OF
THE PARTIES TO RESOLVE THIS FACTUAL ISSUE AND RENDER
SUBSTANTIAL JUSTICE CONSISTENT WITH THE LAW AND
PREVAILING JURISPRUDENCE.

20] Admittedly, jurisprudence has established that this

Honorable Court is not a trier of facts, and only errors of law are
generally reviewed in petitions for review on certiorari as provided for
under Section 1, Rule 45 of the Rules of Court. Jurisprudence,
though, carved out exceptions to this rule.

21] Medina v. Mayor Asistio, Jr. (G.R. No. 75450, 8 November

1990) enumerated the circumstances when this Honorable Court
may look into the records of the case and re-examine the questioned
findings of the Court of Appeals. These exceptions are as follows:

xxxx

“(4) When the judgment is based on a misapprehension of facts

(Cruz v. Sosing, L-4875, Nov. 27, 1953);

xxxx

(10) The finding of fact of the Court of Appeals is premised on

the supposed absence of evidence and is contradicted by the
evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).”

22] Miniano v. Meralco (G.R. No. 205035, 16 November 2016)

further held that these exceptions similarly apply in petitions for
review filed before this Honorable Court involving civil, labor, tax, or
criminal cases.

23] Applying the foregoing jurisprudential principles and given

that the factual findings of the labor arbitration branch, NLRC, and
the Court of Appeals that Deceased Uprisino continuously worked as
a mason of Petitioner Daito/Jeremie Construction Design and
Consultancy on a continued basis beginning the year 2009 until the
day he figured in an accident on 06 June 2016, is not supported by
30
Date Deceased Upresino figured in an accident
11 | P a g e PETITION FOR REVIEW
the evidence on record and that material facts or circumstances have
been overlooked or misinterpreted by the Court of Appeals, this case
falls within the ambit of two of the recognized exceptions mentioned
in paragraph no. 21.

VI.
STATEMENT OF ISSUE

THE COURT OF APPEALS ERRED WHEN IT UPHELD THE

FINDING OF THE NLRC THAT THE COMPUTATION OF
MONETARY AWARD DUE TO PRIVATE RESPONDENT
LATURNAS COVERS THE UNPRESCRIBED PERIOD OF
ENTITLEMENT BEGINNING JUNE 6, 2013 UP TO JUNE 6, 2016.
IT IS NOT SUPPORTED EVEN BY AN IOTA OF EVIDENCE ON
RECORD.

VII.
ARGUMENTS/DISCUSSIONS

[VII.A] THERE IS NOT AN IOTA OF EVIDENCE ON RECORD

THAT DECEASED UPRESINO WAS EMPLOYED BY PETITIONER
DAITO PRIOR TO APRIL 2015 - THE DATE HE WAS HIRED BY
RONALDO FUENTES – PETITIONER DAITO’S SUBCONTRACTOR.

24] Section 1, Rule 128 of the Rules of Court defines evidence

as “the means, sanctioned by these rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact.”

25] Upon the other hand, Section 5, Rule 133 of the Rules of
Court states that “in cases filed before administrative or quasi-judicial
bodies, a fact may be deemed established if it is supported by
substantial evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion.”

26] It is noteworthy that Section 1, Rule 131 of the Rules of

Court clearly provides that Respondent Laturnas has the burden of
proving, through substantial evidence, that Deceased Upresino had
been employed by any of Respondents-Appellants Jeremie and
Daito's sub-contractors prior to April 2015 and that Deceased
Upresino continuously work as a mason of one of Respondents-
Appellants’ sub-contractors from April 2015 up to June 6, 2016.

12 | P a g e PETITION FOR REVIEW

 27] As the Supreme Court held in Rufina Patis Factory v.
Alusitain (G.R. No. 146202, 14 July 2004), quote:

“It is a basic rule in evidence, however, that the burden of

proof is on the part of the party who makes the allegations – ei
incumbit probatio, qui dicit, non qui negat. If he claims a right
granted by law, he must prove his claim by competent evidence,
relying on the strength of his own evidence and not upon the
weakness of that of his opponent.”

28] In the instant case, there is no shred of evidence

substantial enough to support Respondent Laturnas’ allegation that
Deceased Upresino continuously worked as a regular employee
(mason) of Petitioner Daito from the year 2009 up to 06 June 2016.
All that Respondent Laturnas advanced are bare and self-serving
allegations in her position paper pertinent portions of which are as
follows:

28.1] Page no. 2 of Position Paper

STATEMENT OF FACTS

Upresino was first employed with Jeremie as a

mason last 2009.

His salary history was as follows:

PERIOD DAILY WAGE RATE

2009 - 2010 Php250.00
2011 - 2016 Php300.00

28.2] Page no. 3 of Position Paper

To be allowed entry to any Jeremie’s

project, its workers were issued tshirts.

PERIOD SHIRT COLOR

2011 - 2012 Yellow
2013 Violet
2014-2016 Green

28.3] Page no. 6 of Position Paper

Deceased Upresino had been working as a

mason for Jeremie since 2009

Upresino’s work as a mason was necessary and

desirable in Jeremie’s business given that it is
into the construction business.

13 | P a g e PETITION FOR REVIEW

 Therefore, he was a regular employee enjoying
security of tenure.

29] In connection with the foregoing allegations of Respondent

Laturnas in her position paper unsupported by proof though, she
swore to the truth thereof, as follows:

VERIFICATION and
CERTIFICATION AGAINST FORUM SHOPPING

xxxx

3. That I have read and understood the

allegations therein and the same are true and
correct of my knowledge and based on
authentic records. (underscoring supplied
for emphasis)

xxxx

30] From the above Verification and Certification Against

Forum Shopping, noticeable is the fact that despite Respondent
Laturnas’ sworn statement that the continued employment of
Deceased Upresino from the year 2009 up to 06 June 2016 as a
regular employee (mason) of Petitioner Daito is “ based on
authentic records”, her position paper is still bare of any
documentary support that she could have easily culled from these
alleged authentic records. Aforesaid failure may lead anyone to the
inescapable logical conclusion that the sworn statement pertaining to
the existence of authentic records of employment is baseless and
untruthful.

31] Let it be underscored that the self-serving and

unsubstantiated allegations of Respondent Laturnas cannot defeat
the concrete evidence submitted by Petitioner Daito in the form of
Sinumpaang Salaysay31 executed by Ronaldo Fuentes which
substantially established the fact of Deceased Upresino’s period of
limited employment from April 2015 up to June 6, 2016 only. It
should be noted as well that the statements in the said Sinumpaang
Salaysay was never refuted by Respondent Laturnas.

32] The absolute reliance of the NLRC on Respondent

Laturnas' allegation on Deceased Upresino's length of employment
with no iota of proof on this matter ever presented; but, nonetheless

31
Annexes pp. 47-48
14 | P a g e PETITION FOR REVIEW
utilized the same length of employment as basis for the period of time
covered in the computation of monetary awards to Respondent
Laturnas is not only inequitable. It is utter disregard of a time-honored
rule in the corpus of our jurisprudence that “ it is well-settled
that a party alleging a critical fact must support
his allegation with substantial evidence as
allegation is not evidence.” (Dionisio Dacles v. Millenium
Erectors [G.R. No. 209822, 08 July 2015]).

33] In the same token, the Court of Appeals’ adoption of the

ruling of the NLRC hook, line and sinker is fundamentally wrong and
there is no legal principle upon which it can be sustained considering
that it is premised on the supposed absence of evidence and is
contradicted by the evidence on record – Sinumpaang Salaysay32
executed by Ronaldo Fuentes. The pertinent portions of the Court of
Appeals 21 May 2019 Decision read as follows:

“By the same token, the computations, as well as the

propriety of the awards to Upresino are conclusive and
unquestionably factual issues that were adequately discussed
and ruled upon by the NLRC. Judicial review of labor cases does
not go beyond the evaluation of the sufficiency of the evidence
upon which its labor officials’ finding rest. As such, the findings
of facts and conclusion of the NLRC are generally accorded not
only great weight and respect but even clothed with finality and
deemed binding on this Court as long as they are supported by
33
substantial evidence.”

[VII.B] THE ON AND OFF NATURE OF WORK IN THE

CONSTRUCTION INDUSTRY, WHICH IS JURISPRUDENTIALLY
RECOGNIZED, BELIED THE BARE AND SELF-SERVING
ALLEGATION OF RESPONDENT LATURNAS THAT DECEASED
UPRESINO CONTINUOUSLY WORKED AS A MASON OF
PETITIONER DAITO FROM THE YEAR 2009 UP TO 06 JUNE
2016

34] It should be noted that –

34.1] construction involves various phases of work such as

excavation, masonry, carpentry, electrical, plumbing,
painting, etc.;

32
Annexes pp. 47-48
33
CA Decision, Annexes, pp. 7-8
15 | P a g e PETITION FOR REVIEW
 34.2] construction takes into consideration the weather, dry
or rainy season; and

34.3] Petitioner Daito is engaged in construction business,

which in general usually pause for a while during the rainy
season. Thus, this general rule on construction business
applies in this case.

35] Given the foregoing scenario and given the fact that
Deceased Upresino was a mason, it would be highly improbable that
he could have worked continuously as a mason or retained in their
payroll despite non-availability of work and/or momentary stoppage of
work due to rainy season.
36] The following pronouncements of the Supreme Court
anent off-and-on nature of work in the construction industry prove
most instructive:

36.1] Dionisio Dacles vs. Millenium Erectors (G.R. No.

209822, 08 July 2015) The pertinent portion of this
decision reads as follows:

“x x x x construction firms cannot guarantee work and funding for

its payrolls beyond the life of each project as they have no control
over the decisions and resources of project proponents or owners.”

36.2] E. Ganzon, Inc. vs. Ando (G.R. No. 214183, 20

February 2017) The pertinent portion of this decision
reads as follows:
"As a corporation engaged in construction and residential
projects, EGI depends for its business on the contracts it is able to
obtain. Since work depends on the availability of such contracts,
necessarily the duration of the employment of its workforce is not
permanent but coterminous with the projects to which they are
assigned and from whose payrolls they are paid.

xxxx

It is widely known that in the construction industry, a project

employee's work depends on the availability of projects, necessarily
the duration of his employment. It is not permanent but coterminous
with the work to which he is assigned. It would be extremely
burdensome for the employer, who depends on the availability of
projects, to carry him as a permanent employee and pay him wages
even if there are no projects for him to work on. The rationale behind
this is that once the project is completed, it would be unjust to
require the employer to maintain these employees in their payroll. To
do so would make the employee a privileged retainer who collects

16 | P a g e PETITION FOR REVIEW

 payment from his employer for work not done. This is extremely
unfair to the employers and amounts to labor coddling at the
expense of management."

37] As measured by the foregoing legal and jurisprudential

yardsticks, it is obvious that the Court of Appeals has overlooked or
misinterpreted these material facts or circumstance. As such, it is an
error for the Court of Appeals to have affirmed the resolution of the
NLRC.

38] Copies of the Verified Declaration of Completeness and

Affidavit of Service are hereto attached as Annexes “R” and “S”,
respectively.
PRAYER
WHEREFORE, premises considered, it is most respectfully
prayed of this Honorable Court that judgment be rendered, as follows:

1] Annulling and setting aside the Decision of the Court of

Appeals promulgated on 21 May 2019 and Resolution promulgated
on 04 February 2020 in case no. CA-G.R. SP No. 154465, Jaime S.
Daito, doing business under the name and style Jeremie Construction
Design and Consultancy vs. National Labor Relations Commission
(Second Division), and Dominga Laturnas for and on behalf of her
husband, Upresino W. Laturnas (Deceased); and

2] A new one be entered ordering the NLRC to re-compute the

award of wage differentials, 13 th month pay, and service incentive
leave pay exclusively for the period covering April 6, 2015 up to June
6, 2016 only.

Other reliefs as may be deemed just and equitable under the

premises are likewise prayed for.

Bocaue, Bulacan for the City of Manila, 03 March 2020.

Respectfully Submitted,

JAIME S. DAITO
Petitioner

Republic of the Philippines)

Municipality of Bocaue ) s.s.
Province of Bulacan

17 | P a g e PETITION FOR REVIEW

 VERIFICATION and
CERTIFICATION OF NON-FORUM SHOPPING

I, Jaime S. Daito, Petitioner in the above-titled case, under

oath, deposes and says that:

1] I prepared the foregoing Petition for Review on Certiorari;

2] I have read and understood the contents thereof;

3] The allegations therein are true and correct of my personal

knowledge and/or on the basis of copies of documents and records in
my possession;
4] I hereby certify that I have not commenced any other action
or proceeding involving the same issues in the Supreme Court, the
Court of Appeals, or any other tribunal or agency;

5] To the best of my knowledge and belief, no such action or

proceeding is pending in the Supreme Court, the Court of Appeals, or
any other tribunal or agency; and

6] And if I should thereafter learn that a similar action or

proceeding has been filed or is pending before the Supreme Court,
the Court of Appeals, or any other tribunal or agency, I undertake to
report that fact within five (5) days therefrom to this Honorable Court.

IN WITNESS WHEREOF, I have hereunto affixed my

signature this 3rd day of March 2020 in the Municipality of Bocaue,
Province of Bulacan.

JAIME S. DAITO
Petitioner/Affiant

SUBSCRIBED AND SWORN to before me, this 3rd day of

March 2020, in Bocaue, Bulacan, Affiant exhibiting to me his Voter’s
Identification No. 1411-0241A-A2866JSD10003-4 issued by the
COMELEC - Marilao, Bulacan, bearing his photograph and signature
as competent proof of identity.

WITNESSED my hand and seal on the date and place written

above.

18 | P a g e PETITION FOR REVIEW

 AMADO S. SANDEL, JR.
Notary Public
Until December 31, 2020
PTR No. 1177786 Bocaue
Bulacan, 2 January 2020
Roll of Attorneys No. 27207

Doc. No. :
Page No. :
Book No. :
Series of 2020.

WRITTEN EXPLANATION

Service of this PETITION FOR REVIEW ON CERTIORARI to

Respondent Dominga Laturnas and her counsel of record, the Public
Attorney’s Office Special and Appealed Cases Service, was not done
personally but through registered mail due to time constraint and lack
of manpower to effect personal service.

JAIME S. DAITO
Petitioner

Copy furnished:

ATTY. MARIEL D. BAJA,

ATTY. ERIC A. CRISOSTOMO,
ATTY. NATHANIEL JOSEPH C. CASUELA, and
ATTY. OTHELLO M. MENDOZA II

Department of Justice
Public Attorney’s Office Special and Appealed Cases Service
5th Floor, DOJ Agencies Building, NIA Road corner East Avenue,
Diliman 1104, Quezon City

POST OFFICE: Bocaue, Bulacan

POSTED ON : March ____, 2020
RR NO. : RE ________________ ZZ

DOMINGA LATURNAS
No. 26 Villa Lourdes Loma de Gato,
3019 Marilao, Bulacan
19 | P a g e PETITION FOR REVIEW
 POST OFFICE: Bocaue, Bulacan
POSTED ON : March ____, 2020
RR NO. : RE ________________ ZZ

20 | P a g e PETITION FOR REVIEW