Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Quezon City

CORONA, INC.,
Appellant-Respondent.

- versus - NLRC CASE NO. 123456

JACK ANINO AND

LEO B. ESCALANTE, JR.,
Appellees-Complainants.

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APPEAL AND MEMORANDUM OF APPEAL

COME NOW Appellants-respondents, by counsel, unto this Honorable

Commission, most respectfully state, thus:

JURISDICTIONAL FACTS

1. On March 10, 2020, appellant-respondent received a copy, through its

authorized representative Mr. Edwin Tulfo, of the subject Decision of
the Hon. Labor Arbiter Jayson Balais in NLRC Case No. 00-06-
05227-20 entitled Jack Anino and Leo B. Escalante, Jr. and Corona,
Inc.;

2. Thus, appellant-respondent has until March 20, 2020 within which to file
its Appeal and Memorandum of Appeal;

3. Appellant-respondent most respectfully appeals the Decision of the Hon.

Balais to the Honorable Commission and submit the instant
Memorandum of Appeal.

4. In his Decision, the Hon. Balais ruled, to wit:

“WHEREFORE, premises considered, judgment is hereby

rendered declaraing complainants' dismissal as illegal.
Respondents are hereby ordered to pay complainant Anino the
total amount sixty seven thousand six hundred pesos
(P67,600.00) (sic) and complainant Escalante the total amount
of eighty four thousand five hundred pesos (P84,500.00)
representing their separation pay and full backwages. All other
 claims are hereby ordered dismissed.”

5. The Hon. Balais committed grave abuse of discretion in rendering the

above decision and committed errors in the findings of facts which, if
not corrected, would cause grave or irreparable damage or injury to
the appellant-respondent as discussed in the Assignment of Errors and
Arguments below:

ASSIGNMENT OF ERRORS

6. The Hon. Balais committed grave abuse of discretion in rendering the

above decision and committed errors in the findings of facts in finding
that:

a. Complainants-appellees were illegally dismissed.

b. Complainants are entitled to separation pay and full

backwages.

ARGUMENTS

Complainants-appellees were illegally dismissed.

7. With all due respect, it was error for the Hon. Balais to have found that
appellees-complainants were illegally dismissed. Appellees-
complainants could not have been illegally dismissed because they
were never dismissed in the first place.

8. Even a cursory examination of complainants-appellees’ Position Paper

and other pleadings in the proceedings a quo will readily show that
they failed to substantiate the alleged dismissal, much more the
alleged illegal dismissal.

9. Appellee Anino claims to have been dismissed on May 12, 2019 but
other than this barren claim, he is unable to show how he was
dismissed or by whom.

10. The same could be said of appellee Escalante. If indeed they were
dismissed, they could have easily shown a copy of any letter or notice
of termination/dismissal coming from appellants.

11. Appellees never did. At no time were they able to show any such letter
or notice or any other document of termination/dismissal coming from
appellants.

12.Neither were appellees able to show even any testimonial evidence of

such termination. Appellees themselves have been unable to show, at
least even by testimonial evidence, how they were terminated.

13.Complainants-appellees failed to indicate the circumstances of their

alleged termination, including stating the factual details of who
 terminated them, when, and how. This failure to even make such
cursory allegation of the basic circumstances of the alleged
termination should demonstrate that the alleged tale of termination is
no more than a fairy tale that should not have been given credence by
the Hon. Balais.

14.While it is true that an employer has the burden to prove the legality of
any termination, at the very least, a complaining employee must be
able to substantiate an alleged termination. In the recent case of
McLeod vs. NLRC, et al. (G.R. No. 146667, January 23, 2007), the
Supreme Court reiterated, thus:

“It is a basic rule in evidence that parties must prove their

affirmative allegations. While technical rules are not strictly
followed in the NLRC, this does not mean that the rules on
proving allegations are entirely ignored. Bare allegations are
not enough. They must be supported by substantial evidence at
the very least.”

15.In the instant case, the complaining workers were never dismissed. They
have never been able to prove their dismissal. Not with any
documentary evidence. Not with any testimonial evidence. Not even
with any evidence except their very bare, scant allegations.

16.It is admitted that complainants were on different dates asked to go on

forced leave. But the act of asking both complainants-appellees to go
on forced leave is not equivalent to termination of their regular
employment.

17.Appellants-respondents merely exercised their right under Art. 286 of the

Labor Code to suspend the work of some of its workers when there is
no work to be done.

18.Under the said provision:

“ART. 286. When employment not deemed terminated.-

The bona fide suspension of the operation of a business or
undertaking for a period not exceeding six (6) months, or the
fulfillment by the employee of a military or civic duty shall not
terminate employment. In all such cases, the employer shall
reinstate the employee to his former position without loss of
seniority rights if he indicates his desire to resume his work not
later than one (1) month from the resumption of operations of
his employer or from his relief from the military or civic duty.”

19.In Philippine Industrial Security Agency Corp. vs. Dapiton, et al. (G.R.
NO. 127421, December 8, 1999), the Supreme Court stated, to wit:

“We stress that Article 286 applies only when there is a

bona fide suspension of the employer's operation of a business
 or undertaking for a period not exceeding six (6) months. In
such a case, there is no termination of employment but only a
temporary displacement of employees, albeit the displacement
should not exceed six (6) months. The paramount consideration
should be the dire exigency of the business of the employer that
compels it to put some of its employees temporarily out of
work.”

20.The forced leave status of complainants-appellees (during which the

contract of The Company, Inc. with its clients had expired) was for a
brief period of time not exceeding six months. Before the end of the
six-month period from the time of their forced leave, complainants-
appellees were asked to report back for work.

21.This explains why there is no notice or letter of termination on record

whatsoever. Because the employment of complainants-appellees was
never terminated.

22.In par. 5 of respondents-appellants’ Position Paper, respondents-

appellants made a categorical and unconditional statement that “they
(complainants) are now being recalled for the next project.”

23.Again, in the respondents-appellants’ Reply to Position Paper of the

Complainants, the fact that complainants-appellees were never
terminated was reiterated, thus:

“In fact they were recalled to report for work since there
was another project contracted by the respondents, however, the
complainants refused to report for work. Thus, they actually
and inferentially resigned or abandoned their employment.”
(Par. 1)

24.Once more, in respondents-appellants’ Rejoinder to Complainant’s

Reply, the non-termination of complainants’-appellees was further
demonstrated, to wit:

“Moreover, there is no termination in question because

the complainants were required to report for work for the next
project of the company but they refused to accept it and instead,
filed the instant case under the erroneous belief that they were
dismissed. Such alleged dismissal is unfounded considering
that the company next project is available to them.” (Par. 2)

25.All the pleadings of respondents-appellants were consistent on three

points:

a. Complainants-appellees were never terminated.

b. Complainants-appellees were asked to report for work in
another project; and
c. Complainants-appellees refused to report for work in the
 next project.

26.Even then, respondents-appellants did not terminate their employments

with the company.

27.The fact that complainants-appellees were asked to be recalled for the

next project belies any claim of termination, much less of an illegal
termination.

28.Complainants-appellees assert that respondents-appellees had no just or

authorized cause for their alleged dismissal. Neither did they comply
with procedural due process.

29.But as demonstrated beyond cavil, respondents-appellants never

terminated the employment of complainants-appellants.

30.Complainants-appellees mistakenly understood their having been forced

to go on leave under Art. 286 as termination of their employment. In
fact, the declaration by complainants-appellees that they did not want
to be reinstated (“Relief” portion of their Complaint) demonstrates
that they had voluntarily refused to continue with their employment
with appellant-respondent.

31.Even then, appellant-respondent manifests that the two workers can

continue to work with the former anytime.

32.During the period of forced leave when appellees-complainants did not

do any work, they are not entitled to any wages under the basic
principle of “a fair day's wage for a fair day's work.”

33.The absolute lack of evidence to substantiate the claim of dismissal by

the appellants-respondents was glaringly ignored by the Hon. Balais.

34.The commission of serious errors in the findings of facts by the Hon.

Balais, if not corrected, would cause grave or irreparable damage or
injury to the appellants-respondents.

Complainants are entitled to separation pay and full backwages.

35.Because the complainants-appellees were never dismissed, there could be

no occasion for any illegal dismissal.

36.And there being no illegal dismissal, they are not entitled to any
separation pay and full backwages.

PRAYER:

WHEREFORE, based on the foregoing, it is most respectfully prayed that

the ruling of the Hon. Balais:

a. Declaring complainants' dismissal as illegal be reversed and set

aside.
 b. Holding respondents-appellants liable for the payment to
complainant Anino of the total amount sixty seven thousand six
hundred pesos (P67,600.00) (sic) and complainant Escalante the
total amount of eighty four thousand five hundred pesos
(P84,500.00) representing their separation pay and full
backwages be reversed and set aide.

Furthermore, the Complaint by complainants-appellees should be dismissed

for being without any factual or legal basis.

All other relief just and equitable under the premises are likewise prayed for.

Davao City (For Quezon City).

March 14, 2020.

ATTY. ERICK JAY N. INOK

Counsel for the Appellant
Notary Public / Roll of Attorneys No. 420696
Notarial Commission Serial No. 2019-420-2020
Commission Expires on December 31, 2020
IBP No. 030524; 01/10/2020; Davao City
PTR No. 1760152C; 01/04/2020; Davao City
MCLE Compliance No. VI–0012697 – 09/19/2019
Tel Nos. (082) 225-2066; (082) 241-2945
Email Address: ERICKSKIE23@yahoo.com
Legal Office, Commission on Audit R.O XI, Davao City