REPUBLIC OF THE PHILIPPINES

NATIONAL LABOR RELATIONS COMMISSION

7TH DIVISION
CEBU CITY

CARLOS JERUSALEM, JR.,

Complainant-Appellant, NLRC RAB VII Case No. 12-2339-17

-versus-

ECOLOGY SPECIALIST INC., MS.

MARGE VASQUEZ,
Respondents-Appellees.
X - - - - - - - - - - - - - - - - - - - - - - - -- /

MEMORANDUM OF APPEAL

COMPLAINANT-APPELLANT, by the undersigned counsel,

and to this Honorable Commission, most respectfully states:

THE PARTIES

Complainant-Appellant Carlos Jerusalem, Jr. is of legal age,

married and a resident of San Sebastian, Samboan, Cebu;

Respondent-appellee ECOLOGY SPECIALIST INC., is a

corporation duly organized and existing under the laws of the
Republic of the Philippines with principal address located at Building
F. Phoenix Sun Business, Libis, Quezon City.

Respondent-appellee MS. MARGE VASQUEZ is the HR

Manager of the respondent-appellee ECOLOGY SPECIALIST INC.

TIMELINESS OF APPEAL

Complainant-Appellant, through counsel, received on October

17, 2018, the Decision dated September 28, 2018, therefore,
complainant -appellant has until October 27, 2018 within which to file

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this instant Memorandum of Appeal. This Memorandum of Appeal
is seasonably filed.

STATEMENT OF THE FACTS OF THE CASE

Complainant-appellant was hired by Respondent-appellee as a

Station Manager at its Gasoline Station located in San Sebastian,
Samboan, Cebu on May 6, 2016.

As a matter of fact, complainant-appellant is not a mere station

manager, complainant-appellant is also the proprietor of JKG GAS
STATION and shown by the Certificate issued by the Department of
Trade and Industries hereto attached as Annex “A”.

Complainant--appellant’s registration with the DTI was the one

used in the application of all permits in establishing the San
Sebastian, Samboan, Cebu Gasoline of the respondents, as shown by
the following:
1. Mayor’s Permit, machine copy of which is hereto
attached as Annex “B”;
2. Application for Registration with the Bureau of
Internal Revenue, machine copy of which is hereto
attached as Annex “C”;
3. Authority to print issued by the Bureau of
Internal Revenue, machine copy of which is hereto
attached as Annex “D”;
4. Position Paper of Jessica M. Senagan, machine
copy of which hereto attached as Annex “E”;

Through some machination, respondent made it appear that

complainant-appellant was a probationary employee.

As a station manager, who happens to be persons whose name

appears to be the proprietor of the gasoline station, complainant—
appellant’s monthly salary is P16,832.00.

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 Complainant-appellant was recruited by FILOIL ENERGY
COMPANY INC., last July 2013. He was sent to Manila for a 1 Month
training on how to find and operate gas station. Prior on the turnover
complainant-appellant underwent another training for
COMPREHENSIVE RETAIL MANAGEMENT TRAINING COURSE
last September 6, 2014 in Cebu City and STATION MANAGEMENT
SYSTEM COURSE last March 18, 2015 at PHCCI Dumaguete City.

Since the Samboan Station has no cardinal, a certain Cindy Lim

called complainant--appellant to take over and process the
documents needed for the operation.

On January 7, 2016 complainant-appellant went to Cebu City to

register the GAS STATION under his name as operator with the
registered name JKJ GAS STATION with the Department of Trade
and Industry (DTI). Complainant--appellant shouldered all his
expenses to and fro during the processing period. Afterwards,
complainant-appellant started processing his Business permit in the
Municipality of Samboan, Cebu which he received on last March 01,
2016.

Later that complainant-appellant learned that the FILOIL GAS

was bought by the TOTAL PHILS., but the San Sebastian, Samboan
station was not included of the buy out.

Complainant-appellant was told by Cindy Lim that JKJ

STATION Samboan will be Managed by respondent ECOLOGY
SPECIALIST INC starting August 1, 2016. A certain Sam Oyardo was
designated as the new Area Manager and he later made
complainant--appellant sign Cardinal Operator Partnership Program.

From the month of August to March 2016, complainant-

appellant was operating the Filoil Samboan station but in the
paperworks it would appear that it is owned by JKJ Gas Station, of
which complainant-appellant was the registered proprietor.

Last March 29, 2017 the respondent-appellee called

complainant-appellant for a meeting in Cebu City to address some
issues like the wages of the personnel and pump attendant.

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 Later on, complainant-appellant was shocked when he received
a contract of employment via LBC last March 30, 2017 which states
that her was under a probationary for 6 months where in fact he was
working with the company for almost two (2) years, and that JKJ Gas
Station was the name of the paperworks which complainant-
appellant was the registered proprietor.

Last August 23, 2016 complainant-appellant received a

suspension order for 30 days without any show cause for the reasons
of shortages. Ms. Irna Batanes ordered him give all the margin to her
which complainant-appellant issued a check amounted to P60,880.00
and a cash amounted P3,511.00

Ms. Tess Fuertes arrived in the station to make Full Audit

From August 1 to August 23, 2017 and there was no shortages.
Complainant-appellant noticed from the reports of the auditor for the
month of August 2016 internal audit was totally blank with no
expenses written/attached on it.

To make matters worse, complainant-appellant’s BIR

payments, electricity, pisonet and etc. were never credited even
though he have the receipts. The internal audit was done with Ms.
Tess Fuertes and complainant’s margin report was completed which
complainant-appellant knew that he didn’t have shortage.
Complainant-appellant asked Ms. Tess for a copy of his audit report
that she sent to Manila but she said it is prohibited and her big Boss
didn’t want to.

Machine copy of the Letter dated August 23, 2017 is hereto

attached as Annex “F”.

Later, complainant-appellant received the termination papers

which shocked complainant-appellant because it was stated on the
paper that I have shortages amounted to P29,420.00 but when
complainant--appellant read the termination papers he noticed that
the expenses in the month of June to July, 2017 did not coincide.

The company auditor named Mr. Ronnie Tano made his audit
from the month of June to July 15, 2017 and informed complainant-
appellant that his margin had an excess of P23,511 which
complainant-appellant issued him a check which means
complainant--appellant have no shortages and his margin was intact.

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 Machine copy of the Termination letter dated September 22,
2017 is hereto attached as Annex “G”.

During the mandatory conciliation proceedings, the parties

were not able to arrive at an amicable settlement, for which reason
the parties were just ordered to file their respective position papers.

The partiers filed their respective position papers,

Complainant-appellants position paper is hereto attached as Annex
“H” while respondent-appellees’ position paper is hereto attached as
Annex “I”;

On September 28, 2018, the Hon. Labor Arbiter Butch Donabel

Ragas Bilocura rendered the questioned decision dismissing the
complainant-appellant’s claims, the dispositive portion of which
reads as follows:

“WHEREFORE, IN VIEW OF THE FOREGOING,

judgment is hereby rendered DISMISSING this case for lack of
merit.

Of the Decision dated September 28, 2018 is hereto attached as

Annex “J”.

Hence, this instant appeal advancing the following:

GROUNDS:

1. THE HONORABLE LABOR ARBITER ERRED IN

NOT DECLARING THAT THE COMPLAINANT-
APPELLANT WAS A REGULAR EMPLOYEE AND
NOT A PROBATIONARY EMPLOYEE.
2. THE HONORABLE LABOR ARBITER ERRED IN
NOT DECLARING THAT THE COMPLAINANT-
APPELLANT WAS ILLEGALLY DISMISSED AND
THUS ENTITLED TO REINSTATEMENT;
3. THE HONORABLE LABOR ARBITER ERRED IN
NOT DECLARING THAT RESPONDENTS-

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 APPELLEES SHOULD BE COMPELLED TO PAY
TO THE COMPLAINANT-APPELLANT ALL HIS
MONEY CLAIMS;
4. THE HONORABLE LABOR ARBITER ERRED IN
NOT DECLARING THAT COMPLAINANT-
APPELLANT IS ENTITLED TO ATTORNEYS FEES.

DISCUSSIONS AND ARGUMENTS.

1. THE HONORABLE LABOR

ARBITER ERRED IN NOT
DECLARING THAT THE
COMPLAINANT-APPELLANT
WAS A REGULAR EMPLOYEE
AND NOT A PROBATIONARY
EMPLOYEE.

Complainant-Appellant was not a probationary employee. As a

matter of fact, complainant-appellant was not an ordinary employee.
Complainant-appellant is vital and important to the business of the
respondent-appellee.

Complainant-appellant was hired by Respondent-appellee as a

Station Manager at its Gasoline Station located in San Sebastian,
Samboan, Cebu on May 6, 2016.

As a matter of fact, complainant-appellant is not a mere station

manager, complainant-appellant is also the proprietor of JKG GAS
STATION and shown by the Certificate issued by the Department of
Trade and Industries hereto attached as Annex “A”. Without this fact
of the complainant-appellant being the registered proprietor with the
Department of Trade of Industry (DTI), the respondents-appellees
would not be able to operate the said Gasoline Station located in San
Sebastian. It is worth noting that the Hon. Labor Arbiter Butch
Donabel Ragas-Bilocura failed to even mention this aspect in the
questioned Decision dated September 28, 2018.

Complainant-appellant’s registration with the DTI was the one

used in the application of all permits in establishing the San
Sebastian, Samboan, Cebu Gasoline of the respondents, as shown by
the following:
1. Mayor’s Permit, machine copy of which is hereto
attached as Annex “B”;

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 2. Application for Registration with the Bureau of
Internal Revenue, machine copy of which is hereto
attached as Annex “C”;
3. Authority to print issued by the Bureau of
Internal Revenue, machine copy of which is hereto
attached as Annex “D”;
4. Position Paper of Jessica M. Senagan, machine
copy of which hereto attached as Annex “E”;

Through some machination, respondent made it appear that

complainant-appellant was a probationary employee.

Clearly, based on the foregoing fact alone, the complainant-

appellant should be considered, for all intents and purposes, as a
regular employee of the respondents-appellees.

Also worth noting that, as of September 22, 2017, the date of the
letter terminating the complainant, more than one (1) year has
elapsed, with more reason that the complainant-appellant is already
a regular employee by then, by operation of law.

Jessica M. Senagan’s Position Paper!

In the labor case filed by Jessica M. Senagan, who is now

currently running the day-to-day operations of the subject gasoline
station located in San Sebastian, Samboan, Cebu, the complainant-
appellant was clearly indicated therein as the manager. As clearly
shown in the machine copy of the Position Paper of Jessica Señagan, a
copy of which is hereto attached as Annex “E”, complainant-
appellant was plainly and clearly indicated as Branch Manager.

This whole aspect was never refuted to by the respondents-

appellees. Clearly, the complainant was not a probationary
employee, and no amount of machination can negate this fact.

The status of the complainant-appellant as a regular employee

cannot be defeated and demoted by a mere stroke of a pen because
his status is protected by law.

Therefore, there is a need to reverse and modify the decision

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dated September 28, 2018 so that complainant-appellant should be, as
he is rightfully so, considered as a regular employee of the
respondents-appellants, and, therefore, enjoys all the rights and
protection attributed to a regular employees under Philippine law.

2. THE HONORABLE LABOR

ARBITER ERRED IN NOT
DECLARING THAT THE
COMPLAINANT-APPELLANT
WAS ILLEGALLY DISMISSED
AND THUS ENTITLED TO
REINSTATEMENT;

It is the strong contention of the herein complainant-appellant

that he was illegally dismissed.

Section 1 of Rule of the Implementing Rules and Regulation of

the Labor Code provides that no worker shall be dismissed except for
just or authorized causes provided by law and after due process.

The two facets of this legal provision are: (a) the legality of the
act of dismissal, that is, dismissal under the grounds provided for
under Article 282 or Article 283 of the labor Code; and (b) and the
legality in the manner of dismissal.

The illegality of the act of dismissal constitutes discharge without

just or authorized cause while illegality in the manner of dismissal is
dismissal without due process.

Firstly, the respondents’ alleged grounds for the complainant-

appellant’s termination are enumerated in the Notice of Termination
dated September 22, 2017 (Annex “G”) as follows, to wit:

1. Stealing or attempting to steal from the Company, its

employees, clients, suppliers;
2. Any act of fraud committed against the Company, its
officers, employees, clients, suppliers, consultants, contractors
and/or visitors;
3. Tampering with, altering or otherwise falsifying
Company papers or documents for personal gain;

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 4. Article 262 of the Labor Code (now Article 297), letter
c. Fraud or willful breach by the employee of the trust reposed
in him by his employee or duly authorized representative;
5. Article 282 of the labor code (now art 297) letter e.
Other causes analogous to gross and habitual neglect of duty.

The said letter additionally states that complainant--appellant

was a probationary employee which the Labor Arbiter could never be
mislead for the simple reason that the complainant-appellant has
already been employed for than one (1) year at the time of the letter,
September 23, 2017.

In sum, the gist of the respondent’s violations is whether or not

there were shortages on the part of the complainant--appellant.

In the same letter dated September 23, 2017, the sum of

P29,410.70 was imputed to the complainant-appellant as the amount
of his shortages.

This is an utter falsehood.

There was malice on the part of the respondents-appellees

when they made the audit because they maliciously refuse to honor
some of complainant-appellant’s valid expenses.

To be more specific, in the letter dated September 23, 2017,

respondent alleged that complainant-appellant incurred the sum of
P37,318.02, when in truth and in fact, complainant-appellant incurred
the sum of P51,771.09 as broken down as follows:
a. P24,810.00 as shown by the picture of the Laptop
Screen of Maria Teresa Fuertes, cluster head of the respondent,
which complainant-appellant was lucky enough to get a picture
of, hereto attached as Annex “K”;
b. P26,961.90 representing all the expenses the
complainant--appellant incurred in connection with the day to
day operation of the San Sebastian, Samboan, Cebu Station, for
the whole month of June, 2017, as shown by the Summary of
Petty Cash Fund of the complainant-appellant, hereto attached
as Annex “L”;

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 The P26,961.90 representing all the expenses the complainant-
appellant incurred in connection with the day to day operation of the
San Sebastian, Samboan, Cebu Station, for the whole month of June,
2017, was for the following:
a. Armak Tape;
b. Omni LED Bulb 6w;
c. Ballpens, etc;
d. Photocopy; Padlock, etc;
e. Water Finding Paste;
f. LBC Payment for documents sent to the respondent;
g. Various expenses which were covered with official
receipts which are vital to the day to day operation of
the business;
h. Internet;
i. BIR;
j. Electricity Bills;

The amount P26,961.90 in the Summary of Petty Cash Fund for

the month of June, 2017 is encircled and marked as Annex “L-1”;

In the same letter dated September 23, 2017, the sum of

P40,110.13 was imputed to the complainant-appellant as the amount
of his shortages.

This is also an utter falsehood.

There was malice on the part of the respondents when they

made the audit because they maliciously refuse to honor some of
complainant-appellant’s valid expenses.

To be more specific, in the letter dated September 23, 2017,

respondent alleged that complainant--appellant incurred the sum of
P40,110.13, when in truth and in fact, complainant--appellant
incurred the sum of P45,685.15 broken down as follows:
a. P24,490.00 as shown by the picture of the Laptop
Screen of Maria Teresa Fuertes, cluster head of the respondent,
which complainant--appellant was lucky enough to get a
picture of (Annex “K”);
b. P21,195.15 representing all the expenses the
complainant-appellant incurred in connection with the day to
day operation of the San Sebastian, Samboan, Cebu Station, for

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 the whole month of June, 2017, as shown by the Summary of
Petty Cash Fund of the complainant-appellant (Annex “L”);

The P21,195.15 representing all the expenses the complainant-

appellant incurred in connection with the day to day operation of the
San Sebastian, Samboan, Cebu Station, for the whole month of June,
2017, was for the following:
a. Online/Gas Photocopy;
b. Deposit to Dumagute;
c. Calculator;
d. Rug and Zonrox;
e. Kolor Cut and Tools rental;
f. Payment to CEBU;
g. Sun Load;
h. Internet Scan;
i. Gas for Generator;
j. Labor Costs for Electrician;
k. Wires

The said various expenses which were covered with official

receipts which are vital to the day to day operation of the business;

The amount P21,195.15 in the Summary of Petty Cash Fund for

the month of July, 2017 (Annex “L-1”);

So, the correct computation should have been that the actual
margin for the months of April to August 2017 is as follows:

Months Actual Actual

Margin Exp.

April 2017 P87.861.35 P50,141.95

May 2017 P3,139.53 P53,882.51

June 2017 P86,465.82 P57,771.09

July 2017 P88.888.73 P40,110.13

August 2017 P67,104.72 P48,796.23

Total P423,460.15 P250,674.91

On August 24, 2017, respondent confiscated the checkbook of

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the complainant-appellant which was devoted to the remittance of
the margin to the respondent.

While the said checkbook and the checking account was under
the name of the complainant-appellant alone, the opening of this
account was made for the convenience of the both the complainant-
appellant and respondents so that the complainant-appellant will just
issue to the respondent a check corresponding to the amount due to
the respondent.

Since the checkbook was confiscated by the respondent on

August 24, 2017, the complainant-appellant was prevented from
remitting to respondent the sum of P9,730.00, which is still in the
checking account.

Machine copy of the statement of account of Checking Account

No. 200015763565, is hereto attached as Annex “M”.

So, other words, the Cash +Check in Hand in the letter dated
September 23, 2017 should not be just P163,860.62 but should also
include the P9,730.00 in the Checking account, which the
complainant-appellant could have remitted to the respondent
complainant-appellant not been prevented from doing.

Therefore, the total cash+Check on Hand should be P163.860.62

plus P9,730.00 which would amount to P173,590.62.

To summarize:

Actual Exp. Plus

Actual Margin Actual Exp. Cash + Check
Cash + Check on
on Hand
Hand

Total P423,460.15 P250,674.91 P173,590.62. P424,265.53

So other words, there was actually no shortage incurred by the

complainant-appellant, as a matter of fact, his Actual Expenses
combined with Cash + Check on Hand is P805.38 more that the
actual margin.

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 Therefore it is very clear that respondents should be held liable
severally and jointly for ILLEGAL DISMISSAL because the
complainant-appellant did not incur any shortage at all, as matter of
fact, his Actual Expenses combined with Cash + Check on Hand is
P805.38 more that the actual margin.

It is worthy to note, that this explanation was not mentioned at

all by the Hon. Labor Arbiter Butch Donabel Ragas-Bilocura in the
Decision dated September 28, 2018.

Clearly, the said Hon. Labor Arbiter Butch Donabel Ragas-

Bilocura failed to appreciate all the evidences presented by the
complainant-appellant, therefore, there is a need to reverse and
modify the decision dated September 28, 2018 and declare that the
complainant appellant was illegally dismissed.

3. THE HONORABLE
LABOR ARBITER ERRED IN
NOT DECLARING THAT
RESPONDENTS-
APPELLEES SHOULD BE
COMPELLED TO PAY TO
THE COMPLAINANT-
APPELLANT ALL HIS
MONEY CLAIMS;

Having exhaustively discussed that the complainant-

respondent was illegally dismissed, complainant-appellant now
endeavors to discuss the effects of illegal dismissal.

In the case of Rodriguez vs. NRLC [G.R. No. 153947, 2002 Dec
5], the Supreme Court reiterated their constant ruling in case of
illegal dismissal, to wit:

“Under Art. 279 of the Labor Code, an employee who is

unjustly dismissed is entitled to reinstatement, without loss of
seniority rights and other privileges, and to the payment of his full
backwages, inclusive of allowances, and other benefits or their
monetary equivalent, computed from the time his compensation
was withheld from him (which, as a rule, is from the time of his
illegal dismissal) up to the time of his actual reinstatement.

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 Thus, based on the foregoing Supreme Court Ruling, since the
complainant-appellant was illegally dismissed by the respondent-
appellee, it is but logical that respondent shall be condemned by the
Honorable Labor Arbiter to pay the complainant-appellant s’ money
claims, more specifically to:

1. REINSTATE COMPLAINANT WITHOUT LOSS

OF SENIORITY RIGHTS AND OTHER PRIVILEGES;
2. PAY FOR THE BACKWAGES OF
COMPLAINANT, INCLUSIVE OF ALLOWANCES, AND
OTHER BENEFITS OR THEIR MONETARY
EQUIVALENT, COMPUTED FROM THE TIME HIS
COMPENSATION WAS WITHHELD FROM HIM
(WHICH, AS A RULE, IS FROM THE TIME OF HIS
ILLEGAL DISMISSAL) UP TO THE TIME OF HIS
ACTUAL REINSTATEMENT.

Applying the foregoing to the case of the complainant-

appellant, respondents-appellee should Reinstate complainant-
appellant without loss of seniority rights and other privileges and to
Reinstate complainant without loss of seniority rights and other
privileges, Pay for the backwages of complainant, inclusive of
allowances, and other benefits or their monetary equivalent,
computed from the time his compensation was withheld from him
(which, as a rule, is from the time of his illegal dismissal) up to the
time of his actual reinstatement.

Other Monetary Claims:

With respect to overtime pay, holiday pay, night shift

differentials, monetization of vacation leave, it is very clear from the
pay slips described above that complainant-appellant was never paid
any overtime pay, holiday pay, night shift differentials and vacation
leave pay, therefore it is but proper that the labor arbiter grant the
same in accordance with prevailing laws and jurisprudence.

4. THE HONORABLE
LABOR ARBITER ERRED IN
NOT DECLARING THAT
COMPLAINANT-
APPELLANT IS ENTITLED
TO ATTORNEYS FEES.

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 Complainant-appellant, because of the wrongful acts of the
respondents-appellees, was forced to file the instant action.
Complainant--appellant was forced to engage the services of the
undersigned counsel and they also incurred expenses aside from the
payment of the professional services of counsel.
By reason of the malevolent acts of the respondents, in the
interest of social and substantial justice, the respondents-appellees
must be suffered to pay attorney’s fees in the amount as the
Honorable Labor arbiter may deem just and proper under the
circumstances.

PRAYER
Wherefore, premises considered, it is most strongly prayed of
this Honorable Commission, to render judgment in favor of the
complainant-appellee and against the respondents-appellees in the
following manner, to wit:
1. Reverse and annul the Decision rendered by Hon.
Labor Arbiter Butch Donabel Ragas-Bilocura by
declaring that the complainant-appellant as a regular
employee of the respondents-appellees;
2. Declare that the complainant-appellant was illegally
dismissed by the respondents-appellees and Applying
the foregoing to the case of the complainant-appellant,
respondents should Reinstate the complainant-
appellant without loss of seniority rights and other
privileges;
3. Order the respondents-appellees to pay the
complainant-appellant damages and attorney’s fees.

Other reliefs as are just and equitable are likewise prayed for.

Cebu City, Philippines, October 25, 2018.

ATTY. FRANCIS GEORGE F. DINOPOL

Counsel for the Complainant-Appellant
Suite 402 G.K. Chua Bldg.
Sanciangco St., Cebu City
Roll of Attorneys Number 50084
PTR No. 175121, 12-12-2017 Cebu Capitol
IBP No. 1065274, 11-9-2017, Cebu Chapter

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 MCLE Compliance No. II-0014596
MCLE Compliance No. III-0021915, 06-26-2012
MCLE Compliance No. IV-0011760, 02-08-2013
MCLE Compliance No. V-0024375, 11-21-2016
Tel. No. 5151417/4141178

Copy furnished:

Atty. Conrado D.O. Reyes, Jr.

2904-C West Tower
Philippine Stock Exchange Center
Exchange Road, Ortigas Center
Pasig City, Metro Manila

Hon. Labor Arbiter Butch Donabel Ragas Bilocura

Regional Arbitration Branch VII
Osmeña Blvd., Cebu City

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