Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Quezon City

FIRST DIVISION

ERWIN GESTRE ASTILLERO,

Complainants,

- versus - NLRC Case No. NCR-07-10128-17

NLRC LAC No. 11-0035553-17

MEG@VPS SECURITY AGENCY

INC./SERGIO O. JAMILA III,
Respondents
x--------------------------------------------------------x PROMULGATED:

DECISION

Before Us is the appeal filed by respondents from the Decision of Labor

Arbiter Julio R. Gamayan dated October 9, 2017 1, the dispositive portion of which
reads:

“WHEREFORE, judgment is hereby rendered declaring complainant

Erwin Gestre Astller (sic) to have been illegally dismissed. Accordingly,
respondent Meg@VPS Security Agency is ordered to pay/refund his

1. Full backwages, computed from 7 February 2017, until finality of this

Decision;
2. Separation pay, computed from 17 September 2014, until finality of
this Decision; a (sic)
3. proportionate thirteenth month pay from 1 January 2017 to 7
February 2017;
4. service incentive leave pay (SILP);
5. accumulated cash bond; and
6. attorney’s fees at the rate of ten percent of the total award.

To date., 09 October 21017, the complainant’s award is tentatively

computed in the amount of P293,482.27.

1
Pp. 000095 – 000102, Records.
 All other claims are dismissed for lack of legal/factual basis.

SO

SO ORDERED.”2

THE FACTUAL ANTECEDENTS

On July 11, 2017, complainant Erwin G. Astillero (Astillero) filed a complaint

for non-payment of holiday pay, holiday premium, 13 th month pay (pro-rated), night
shift differential, attorney’s fees, other causes of action, cash bond.

On August 9, 2017, complainant Astillero amended his complaint to include

the claim for illegal dismissal.

The conference failed; hence, the parties were directed to submit their
respective position papers.

Complainants’ Position

Complainant Riblora alleges that: He was hired by respondents in March 1996

as a security guard – gate guard. He worked from Monday to Sunday, for 12 hours
daily, receiving Php481.00 as his wage for eight (8) hours and earning an average of
about Php7,085.00 per 15 days including overtime pay.

On the other hand, complainant Patalinghug asserts that: He was hired by

respondents in February 1994, likewise as a security guard – motorized/on roving.
He worked from Monday to Sunday, for 12 hours daily, receiving about P8,970.00 per
15 days including overtime pay.

2
P. 000101 – 000102, Records.

2
 Complainants Riblora and Patalinghug claim that they were dismissed illegally
from work in December 2015 and February 2016, respectively, due to old age.

They allege that after respondents issued complainants’ respective Relief

Orders which relieved them from their posts at Forbes Park Village, they made
various follow-ups of their possible deployment. However, they were purportedly
informed by respondents that they could not be given permanent posts because they
were already of old age.

They assert that in illegal dismissal case, the onus probandi rests on the
employer to prove that its dismissal of an employee was for a valid cause, which
respondents failed to so.

They further claim that due to the strained relationship between them and
respondents, they should not be directed to go back to work. Instead, they should be
granted separation pay in view of their illegal dismissal.

They furthermore assert entitlement to unpaid wages, overtime pay, holiday

pay, service incentive leave, rest day, 13 th month pay and night shift differentials, and
return of cash bond.

They likewise allege that they are entitled to moral and exemplary damages as
well as attorney’s fees due to their illegal dismissal.

Respondents’ Position

On the other hand, respondent El Tigre Security alleges that complainants

were not illegally dismissed.

3
 As regards complainant Riblora, respondent admits that he was validly
relieved from his assignment and was suspended for violation of the company’s Code
of Code. It, however, asserts that he was not dismissed from his employment.

Respondent also belies the allegation of complainant Patalinghug that he was

dismissed on February 2, 2016. Respondent pointed out that the aforesaid date is
the same date that complainant Patalinghug was relieved from his assignment due to
a client’s request in relation to the anomalies of extortions and bribery activities in the
said assignment, wherein he was given all the opportunity to explain and present
their side.

Respondent claims that after complainants were relieved, they did not report
back to work. Respondent presented the pages of the logbook for the months of
January, February, March and April 2016 3 to dispute the allegations of complainants
that they went to respondent’s office on various occasions to follow up their
deployment.

Respondent stresses that if complainants were indeed dismissed, they could

have included their claim for illegal dismissal when they requested to undergo the
SEnA proceedings on February 10, 2016. In fact, respondent emphasizes that the
SEnA proceeding was sought solely for underpayment of wage, overtime pay and
holiday pay.

Respondent argues that complainants’ allegation that they were illegally

dismissed due to old age has no basis at all, thus disqualifying them from separation
pay benefit. Hence, the instant complaint should be dismissed for lack of merit.

THE LABOR ARBITER’S RULING

3
P. 00141 – 00228, Records.

4
 On June 5, 2017, the Labor Arbiter rendered the assailed Decision, finding as
follows: Complainants were not illegally dismissed by respondents. In an illegal
dismissal case, the employer bears the burden of proof in showing that the
termination was for a valid or authorized cause. However, before employer must
bear the burden of proving that the dismissal was legal, complainants must first
establish by substantial evidence the fact of their dismissal from the service, and the
same must be evidenced by positive and overt acts of an employer indicating an
intention to dismiss them. Complainants, unfortunately, did not provide proof of their
supposed termination due to old age. They did not elaborate nor give details as to
how their dismissal due to old age was effected by respondents. No substantial proof
was presented by complainants how their terminations came about except for their
self-serving allegations as against the categorical claim of respondent that it did not
terminate the services of the complainants. The records show that complainants did
not report to work when they were respectively relieved from their posts/assignments
in Forbes Park Village.

The Labor Arbiter also held that: The Office is not convinced with the
argument of complainants that they were relieved from their respective
posts/assignment in bad faith. The point, however, is that complainants were never
dismissed from their employment; they were merely relieved or pulled out from their
assignments/posts in Forbes Park Village due to certain infractions committed while
assigned thereat. The explanation and supporting evidence of respondents are more
persuasive to prove that the employment of complainants was never terminated.
Hence, if there was no dismissal, then there can be no question as to its legality or
illegality. Consequently, complainants are not entitled to separation pay.

As regards complainants’ money claims, the Labor Arbiter denied the claim for
underpayment of salary/wages, holiday pay, service incentive lease pay, overtime
pay, rest day premium and night shift differential pay as complainants failed to
establish and substantiate their entitlement to such claims as they did not specify

5
which days they were underpaid of and the amount of the underpayment.
Complainants, however, were awarded with the payment of 13 th month pay and
refund of cash bond as respondents failed to provide substantial proof that they have
paid or refunded the same, computed three (3) years back from their respective last
days of employment.

The Labor Arbiter denied, however, the award of moral and exemplary
damages as it was not established with substantial evidence that they were illegally
terminated by respondents.

The complaint against individual respondent, Jose Benson Poe, Jr., was
dismissed by the Labor Arbiter, there being no evidence on record that he acted
maliciously or in bad faith in dealing with complainants.

Respondent El Tigre was directed by the Labor Arbiter to direct complainants

to go back to work within ten (10) days from receipt of the Decision.

COMPLAINANTS’ APPEAL

Hence, this appeal by complainants, maintaining that the Labor Arbiter

committed a reversible error in dismissing the complaint for illegal dismissal; in
directing complainants to go back to work within ten (10) days from receipt of the
Decision; in finding that complainants are not entitled to their claim for underpayment
of various monetary benefits; in finding that the 13 th month entitlement of
complainants is merely Php37,518 for each of them; in finding that the refund of cash
bond is merely P7,200 for each of them; in finding that complainants are not entitled
to moral and exemplary damages; and in dismissing the complaint against
respondent Poe, Jr.

Complainants reiterate their previous argument that they were dismissed due
to old age. As regards complainant Patalinghug, he asserts the fact that the Relief

6
Order dated February 2, 2016, indicating that he was being relieved of duty at Forbes
Park Village, has the same date as the Show-Cause Letter requiring him to explain in
writing why no disciplinary action should be taken against him for cases alleged
therein, showed positive and overt intent of respondents to dismiss him from the
service. He further alleges that the Labor Arbiter failed to note that respondents
failed to substantiate their allegation that there was indeed a client’s request to
relieve the guards at Forbes Park Village.

As regards complainant Riblora, he denies the allegation that he did not report
back to the office of respondents. He claims that he always reported to their office to
follow-up the status of his employment, but was repeatedly informed that he could not
be given a permanent post because he was already of old age.

Complainants stress that they cannot be directed to go back to work

considering the strained relationship between them and respondentsand
respondents. Instead, they should be paid a separation pay in view of their being
illegally dismissed,

Likewise, complainants claim that they are entitled to overtime pay, holiday
pay, service incentive leave pay, rest day pay, and night shift differential pay. They
likewise allege that their entitlement to 13 th month pay should be reckoned from the
dates they were hired in March 1996 and February 1994, respectively, and should
not be restricted to just three years back.

Moreover, complainants claim for the refund of cash deposit collected from
them during their entire tenure until their services were terminated.

Further, they allege that they are entitled to moral and exemplary damages as
well as attorney’s fees due to their illegal dismissal.

RESPONDENT’S APPEAL

7
 Respondent El Tigre Security partially appeals from the Decision of the Labor
Arbiter, alleging the commission of grave abuse of discretion and reversible error on
the part of the Labor Arbiter in ordering the payment of the 13 th month pay, refund of
the cash bond, and the award of attorney’s fees. Respondent stresses that
complainants were paid of their 13th month pay for 2014 and 2015 by depositing the
same to the respective Banco de Oro Universal Bank Cash Card Accounts of
complainants, while respondent signifies willingness to pay the 13 th month pay of
complainants for the year 2016.

Respondent likewise alleges that the refund of the cash bond, which was
validly collected pursuant to Section 3 of Labor Advisory No. 11, Series of 2014, is
improper since complainants are still within the employ of respondents, thus should
still remain with the latter.

Respondent further claims that it should not be made to pay attorney’s fees
since there was no sufficient showing of bad faith on its part.

OUR RULING

In illegal dismissal case, the employer bears the burden of proving that the
termination was for a valid or authorized cause. However, before the employer is
burdened to prove that it did not commit illegal dismissal, it is incumbent upon the
employee to first establish by substantial evidence the fact of his or her dismissal. 4 It
is an age-old rule that the one who alleges a fact has the burden of proving it and the
proof should be clear, positive and convincing. 5

Complainants made general allegations that they were illegally dismissed due
to old age. Unfortunately, complainants failed to submit evidence to substantiate
4
Ledesma, Jr. v. National Labor Relations Commission, 562 Phil. 939, 951 (2007), cited in Dionarto Q.
Noblejas vs. Italian Maritime Academy Phil., et al., G.R. No. 207888, June 9, 2014.
5
Basay v. Hacienda Consolacion, G.R. No. 175532, April 19, 2010.

8
these allegations other than mere averments in their pleadings.

Complainants failed to present evidence to show any positive or overt act on

the part of respondent to prove their intent to dismiss complainants. Complainants
repeatedly claim to have been dismissed on December 4, 2015 and February 2,
2016, respectively. It bears stressing that these dates coincide with the dates of their
respective Relief Orders6. A perusal of these Orders would show that complainants
were merely relieved from their posts/assignments at Forbes Park Village and were
not dismissed.

In cases involving security guards, a relief and transfer order in itself does not
sever employment relationship between a security guard and his agency. 7 In fact, the
Relief Orders served to complainants contained an instruction to report to
respondents’ office for proper disposition. The clear tenor of the Relief Orders
bolsters the fact that complainants were not dismissed from the service.

Moreover, it is very telling that complainants did not include a claim for illegal
dismissal in their request to undergo the SEnA proceedings on February 10, 2016 if
indeed they believed that they were illegally dismissed as early as December 4, 2015
and February 2, 2016, respectively. It only takes for complainants to tick the box in
the DOLE – SENA Form 1 corresponding to the item on Illegal Dismissal. On the
contrary, they merely checked the items for Underpayment of Wage, Overtime Pay
and Holiday Pay. This runs counter to logic and human experience not to feel
outrage and correspondingly complain at the earliest opportune time if one feels
violated or that he has been done wrong.

Another inconsistency on the claim of dismissal is the allegation of

complainants that they allegedly reported to respondents’ office on various occasions
after the Relief Orders were served to follow-up the status of their deployment.
6
P. 00063 and p. 00065, Records.
7
Exocet Security and Allied Services Corporation and/or Ma. Teresa Marcelo vs. Armando D. Serrano, G.R.
No. 198538, September 29, 2014.

9
Again, this is contrary to complainants’ firm position that they were already dismissed
in December 2015 and February 2016, respectively.

With the foregoing considerations, we sustain the finding of the Labor Arbiter
that complainants failed to substantiate their claim that they were actually dismissed
respondents. Consequently, it is no longer necessary to discuss the alleged bad
faith, which purportedly attended the dismissal of complainants, because there was
no such dismissal to speak of.

As correctly cited by the Labor Arbiter, if there was no dismissal, then there
can be no question as to its legality or illegality. 8 Corollary, the claim for separation
pay in lieu of reinstatement due allegedly to a strained relationship, which is a
remedy in cases of illegal dismissal, is without basis.

In Leopard Security and Investigation Agency vs. Tomas Quitoy, et al. (G.R.
No. 186344, February 20, 2013), the Supreme Court held that:

“Having correctly ruled out illegal dismissal of respondents, the CA

reversibly erred, however, when it sustained the NLRC’s award of
separation pay on the ground that the parties’ relationship had already
been strained. For one, liability for the payment of separation pay is a
legal consequence of illegal dismissal where reinstatement is no longer
viable or feasible. Under Article 279 of the Labor Code, an illegally
dismissed employee is entitled to the twin reliefs of full backwages and
reinstatement without loss of seniority rights. 30 Aside from the instances
provided under Articles 28331 and 28432 of the Labor Code, separation pay
is, however, granted when reinstatement is no longer feasible because of
strained relations between the employer and the employee. 33 In cases of
illegal dismissal, the accepted doctrine is that separation pay is available
in lieu of reinstatement when the latter recourse is no longer practical or in
the best interest of the parties.34

As a relief granted in lieu of reinstatement, however, it consequently

goes without saying that an award of separation pay is inconsistent with a
finding that there was no illegal dismissal. Standing alone, the doctrine of
8
Ledesma, Jr. v. NLRC, G.R. No. 174585, October 19, 2007, 537 SCRA 358, cited in the case of Philippine
Rural Reconstruction Movement (RRM) vs. Virgilio Pulgar, G.R. No. 169227, July 5, 2010.

10
 strained relations will not justify an award of separation pay, a relief
granted in instances where the common denominator is the fact that the
employee was dismissed by the employer.35 Even in cases of illegal
dismissal, the doctrine of strained relations is not applied indiscriminately
as to bar reinstatement, especially when the employee has not indicated
an aversion to returning to work36 or does not occupy a position of trust
and confidence in37 or has no say in the operation of the employer’s
business.38 Although litigation may also engender a certain degree of
hostility, it has likewise been ruled that the understandable strain in the
parties’ relations would not necessarily rule out reinstatement which
would, otherwise, become the rule rather than the exception in illegal
dismissal cases.39”

We thus sustain the Decision of the Labor Arbiter ordering respondents to direct
complainants to report to work immediately as a necessary consequence of the
finding of no-dismissal from the service. Consequently, we take note of
respondensrespondents’’ Compliance Report dated August 30, 2017, showing
compliance with the aforementioned Decision by furnishing complainants with the: (1)
Notices of Reinstatement with Assignment Orders, which were received personally
by complainant Patalinghug and by certain Jayral Riblora, the alleged son of
complainant Riblora; and (2) Report for Work Orders, which were sent to
complainants through LBC9.

As regards complainants’ claims for overtime pay, holiday pay, and night shift
differential, the same must likewise fail. We sustain the Labor Arbiter’s finding that
complainants failed to establish and substantiate their entitlement to such benefits as
they did not specify which days they were underpaid of and the amount of the
underpayment, for which respondent could have sufficiently adduced evidence to
counter the same. It bears stressing that complainants themselves voluntarily
submitted their payslips10 as attachment to their Position Paper to prove the alleged
non-payment of these benefits. However, perusal of these payslips showed apparent
payment of “Regular O.T.”, “Rest Day Pay”, “Holiday Pay”, “Night Prem.”; thereby,
negating complainant’s general allegation that these benefits were not paid.
9
P. 0038 – 00341, Records.
10
P. 00039 – 0049, Records.

11
 As to the complainants’ claim for 13 th month pay from the date of hiring based
on the position that the cause of action allegedly accrued from the time they
demanded their money claims in 2016, we find the same untenable. We do not
question the elements of cause of action cited by complainants in their Memorandum
of Appeal, to wit: “(1) a right in favor of the plaintiff by whatever means and under
whatever law it arises or is created; (2) an obligation on the part of the named
defendant to respect or not to violate such right; and (3) an act or omission on the
part of such defendant violative of the right of the plaintiff constituting a breach of the
obligation of the defendant to the plaintiff.” While the first two elements may not be
disputed, the reckoning period of the third element as posited by complainants
appears misplaced. Contrary to the allegations of complainants, the omission did
not arise only from the demand made by complainants in 2016, but from the time
these benefits were allegedly violated by respondent by supposed non-payment.
Consequently, in cases of nonpayment of allowances and other monetary benefits, if
it is established that the benefits being claimed have been withheld from the
employee for a period longer than three (3) years, the amount pertaining to the
period beyond the three-year prescriptive period is, therefore, barred by prescription.
The amount that can only be demanded by the aggrieved employee shall be limited
to the amount of the benefits withheld within three (3) years before the filing of the
complaint.11

Hence, we find no merit in deviating from the finding of the Labor Arbiter that
the complainants are entitled to their computation of 13th month pay made by the
Labor Arbiter. We cannot give credence to Accordingly, we take note of the evidence
adduced by respondentss for the first time on appeal in its Memorandum of Appeal to
allegedly prove the payment of 13th month pay of the complainants for 2014 and
2015. If they were indeed paid in December 2014 and December 2015, these
documents are deemed to be existent even prior to the filing of the instant complaint.

11
Auto Bus Transport Systems, Inc. vs. Antonio Bautista, G.R. No. 156367, May 16, 2015.

12
However, it is surprising that respondents did not present the same at the opportune
time or during the proceeding before the Labor Arbiter.

These documents could not be deemed as newly discovered evidence to

justify their belated submission for the first time on appeal. Moreover, respondents
did not offer any valid explanation why these documents were initially presented only
on appeal.

Likewise, it is worthy to note that the Bank Advise Slips do not bear any
authentication by the authorized representative of Banco De Oro. Further, the
Affidavit was executed by respondents’ own manager for accounting, Ma. Luz
Herrera; thus, could be reasonably deemed as self-serving.

Unfortunately, there is no justifiable reason not to strictly adhere to the

technical rules of procedure. We find support in the pronouncement of the Supreme
Court in the case of Wilgen Loon, et al, vs. Power Master, Inc. et al., (G.R. No.
189404, December 11, 2013), to wit:

“In labor cases, strict adherence to the technical rules of

procedure is not required. Time and again, we have allowed evidence to
be submitted for the first time on appeal with the NLRC in the interest of
substantial justice.28 Thus, we have consistently supported the rule that
labor officials should use all reasonable means to ascertain the facts in
each case speedily and objectively, without regard to technicalities of law
or procedure, in the interest of due process.29

However, this liberal policy should still be subject to rules of

reason and fairplay. The liberality of procedural rules is qualified by two
requirements: (1) a party should adequately explain any delay in the
submission of evidence; and (2) a party should sufficiently prove the
allegations sought to be proven.30 The reason for these requirements is

13
 that the liberal application of the rules before quasi-judicial agencies
cannot be used to perpetuate injustice and hamper the just resolution of
the case. Neither is the rule on liberal construction a license to disregard
the rules of procedure.” (Underscoring and citations deleted). and its
readiness to pay the proportionate 13 th month pay of the complainants for
2016. It is worthy to note that the payment of the 13th month pay for 2014
and 2015 is not disputed by complainants.

As regards the 13th month pay for 2016, the same has to be computed to determine
the proportionate entitlement of complainants.

Anent complainants’ claim for the payment of the service incentive leave,
respondents have not adduced evidence to prove payment of the same. No such
payment appeared in any of the payslips presented by complainants. Neither did
respondents deny the entitlement of complainants to service incentive leave.
Moreover, the request for SEnA proceeding for underpayment wherein settlement
was forged between the parties and corresponding Quitclaims and Releases were
executed, did not include the claim for service incentive leave. It was first demanded,
albeit belatedly, in their position paper. In view of the foregoing, we are inclined to
grant the claim of complainants for service incentive leave not only for three (3) years
from the filing of the complaint but from the time they are entitled thereto (from date
of hiring) until the last relevant year. Again, in Auto Bus Transport Systems, Inc. vs.
Antonio Bautista (G.R. No. 156367, May 16, 2015), the Supreme Court ruled:

“Correspondingly, it can be conscientiously deduced that the cause

of action of an entitled employee to claim his service incentive leave pay
accrues from the moment the employer refuses to remunerate its
monetary equivalent if the employee did not make use of said leave
credits but instead chose to avail of its commutation. Accordingly, if the
employee wishes to accumulate his leave credits and opts for its
commutation upon his resignation or separation from employment, his
cause of action to claim the whole amount of his accumulated service
incentive leave shall arise when the employer fails to pay such amount at
the time of his resignation or separation from employment

14
 Applying Article 291 of the Labor Code in light of this peculiarity of
the service incentive leave, we can conclude that the three (3)-year
prescriptive period commences, not at the end of the year when the
employee becomes entitled to the commutation of his service incentive
leave, but from the time when the employer refuses to pay its monetary
equivalent after demand of commutation or upon termination of the
employee’s services, as the case may be.

The above construal of Art. 291, vis-à-vis the rules on service

incentive leave, is in keeping with the rudimentary principle that in the
implementation and interpretation of the provisions of the Labor Code and
its implementing regulations, the workingman’s welfare should be the
primordial and paramount consideration. 18 The policy is to extend the
applicability of the decree to a greater number of employees who can avail
of the benefits under the law, which is in consonance with the avowed
policy of the State to give maximum aid and protection to labor. 19”

When complainants include a claim for the payment of the service incentive
leaveincentive leave, they are now evidently exercising the option to commute the
same and claim its equivalent in cash from the first year they are entitled thereto until
the last relevant year, which respondents are obligated under the law to pay.

Moreover, as between the claim of complainants that they are entitled for a
refund of the Cash Bond from the date of hiring and not merely for three (3) years as
ordered by the Labor Arbiter, and the allegation of respondent that complainants are
not entitled to the refund because they are still in its employ, we find merit in
respondent’s position. To begin with, both parties do not dispute the deduction of a
cash bond for loss or damage pursuant to Sec 3 of Labor Advisory No. 11, Series of
2014. As correctly argued by respondents, since complainants remain in their
employ, the former have the right to retain the said cash bond for the purpose for
which they are being deducted.

Anent respondents’ contention that complainants are not entitled to the award
of attorney’s fees, we find the same without merit. Despite the absence of finding
that respondent’s acted maliciously and in bad faith, we find the award of attorney’s

15
fees proper. In Lorenzo T. Tangga-An vs. PIDLIPPINE Transmarine Carriers, Inc., et
al., (G.R. No. 180636, March 13, 2013), the Supreme CourtSupreme Court held that:

“We also held in PCL Shipping that Article 111 of the Labor Code, as
amended, contemplates the extraordinary concept of attorney’s fees and
that Article 111 is an exception to the declared policy of strict construction
in the award of attorney’s fees. Although an express finding of facts and
law is still necessary to prove the merit of the award, there need not be
any showing that the employer acted maliciously or in bad faith when it
withheld the wages. x x x

We similarly so ruled in RTG Construction, Inc. v. Facto and in Ortiz

v. San Miguel Corporation. In RTG Construction, we specifically stated:

'Settled is the rule that in actions for recovery of wages, or where an

employee was forced to litigate and, thus, incur expenses to protect his
rights and interests, a monetary award by way of attorney's fees is
justifiable under Article Ill of the Labor Code; Section 8, Rule VIII, Book III
of its Implementing Rules; and paragraph 7, Article 208 of the Civil Code.
The award of attorney's fees is proper, and there need not be any showing
that the employer acted maliciously or in bad faith when it withheld the
wages. There need only be a showing that the lawful wages were not paid
accordingly.'

In PCL Shipping, we found the award of attorney's fees due and

appropriate since the respondent therein incurred legal expenses after he
was forced to file an action for recovery of his lawful wages and other
benefits to protect his rights. From this perspective and the above
precedents, we conclude that the CA erred in ruling that a finding of the
employer's malice or bad faith in withholding wages must precede an
award of attorney's fees under Article Ill of the Labor Code. To reiterate, a
plain showing that the lawful wages were not paid without justification is
sufficient.30”

As admitted by respondents, the 13 th month pay of complainants for 2016

has not yet been paid. Moreover, complainant’s claim for service incentive
leave is likewise deemed proper. Since complainants were forced to litigate to
claim their 13th month pay and service incentive leave, we sustain the award of
attorney’s fees pursuant to Article 111 of the Labor Code. Accordingly, the 10%
attorney’s fees appropriate in the instant case should be computed anew.

16
 WHEREFORE, premises considered, the respective appeals of
complainants and respondents are partially GRANTED. The Labor Arbiter’s
Decision dated June 5, 2017 is hereby MODIFIED as follows:
1. The claim of complainants for service incentive leave computed
from the first year they are entitled thereto until the last relevant
year, 2015, is hereby GRANTED.
2. The award of the Labor Arbiter in favor of complainants for the
payment of the 13th month pay for 2014 and 2015 is hereby
VACATED as the same has been extinguished by payment,
except the proportionate 13th month pay of complainants for the
year 2016.
3. The refund of cash bond is hereby DELETED.
4. Accordingly, the award of attorney’s fees shall be recomputed
based on the foregoing modifications.

The rest of the Decision stands.

SO ORDERED.
Quezon City, Philippines.

GERARDO C. NOGRALES
Presiding Commissioner

WE CONCUR:

GINA F. CENIT-ESCOTO ROMEO L. GO

17
 Commissioner Commissioner

CERTIFICATION

Pursuant to Article 213 of the Labor Code, as amended by R.A. 6715, it is

hereby certified that the conclusions in the above DECISION were reached in
consultation before the case was assigned to the writer of the opinion of the
Commission.

GERARDO C. NOGRALES
Presiding Commissioner

R11/2017/ Riblora vs. El Tigre /ale

18