Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

_____DIVISION

MARY JANE C. EUSEBIO,

Complainant,

-versus- NLRC-LAC No._______________

NLRC-NCR Case No. 02-03765-19

VINA TRANG VIETNAMESE

RESTAURANT/TUYET TRANG
THILE,
Respondents,
x-----------------------------x

MEMORANDUM OF APPEAL
(FROM THE LABOR ARBITER DECISSION DATED 28 SEPTEMBER 2019)

COME NOW, Respondents by counsel before the Honorable Commission

most respectfully submit their Memorandum of Appeal from the Labor Arbiter
decision dated 28 September 2019 and hereby allege:

TIMELINESS OF PERFECTION

The Decision dated 28 September 2019 by the Honorable Labor Arbiter

Jaime M. Reyno was received on 29 January 2020.

Article 229 of the Labor Code, as amended, as well as the 2011 NLRC
Revised Rules of Procedures provide that decision, awards or orders of the Labor
Arbiter shall be final and executory unless appealed to the Commission by any or
both parties within ten (10) calendar days from receipt thereof. However,
employers’ appeal may only be perfected by posting of cash or surety bond equal
to the amount of the monetary awards exclusive of damages and attorney’s fees.

Since copy of the decision was received on 29 January 2020, following the
above provision, the tenth day for the filing an appeal falls on 08 February 2020
which is a Saturday. In view thereof and pursuant to the NLRC Rules of Procedure,
the last and final date for the filing of appeal falls on the next succeeding business
day, Monday, 10 February 2020.

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 Considering that this appeal is being instituted by an employer, the posting
of bond in the amount equivalent to the monetary award, exclusive of damages
and attorney’s fees is required for perfection. In view thereof, the amount of
P100,000.00 in cash is hereby posted as appeal bond. Simultaneous thereto, a
Motion to Reduce bond is hereby filed to justify the posting of lesser amount of
appeal bond and the tender of the other fees required by the NLRC Rules of
Procedures are likewise made.

This appeal is therefore seasonably perfected.

THE PARTIES

Complainant Mary Jane C. Eusebio are all of legal age, Filipino and with
residence address at No. 1153 Villa San Antonio, Singalong, Manila. For purposes
however of serving the processes, orders and decision of the Honorable
Commission, the same may be effected through her counsel of record Atty.
Sylvestre A. Alava DOJ-PAO, Manila District Office, 4/F W. Godino Bldg., 350
Antonio Villegas St., Ermita, Manila.

Respondent Vina Trang Vietnamese Restaurant (Vina Trang for brevity) is a

commercial entity doing business at LG-10B 1 Century Mall Kalayaan Avenue,
Makati City owned and operated by Vina Trang Cuisine & Co., a company
organized and existing under our laws with address at 8839 Sampaloc St., San
Antonio Village, Makati City with individual respondent Tuyet Trang Thi Le as
managing partner. For purposes however of serving the processes, orders and
decision of the Honorable Commission, the same may be effected through the
undersigned counsel at his address indicated hereunder.

THE CASE

This is a case for illegal dismissal underpayment of salary/wages, non-

payment of overtime pay, holiday pay, holiday premium, 13 th month pay, moral
and exemplary damages and attorney’s fees filed by herein complainant against
herein respondents.

Mandatory conciliation proceedings were conducted for the purpose of

inducing the parties to amicably settle the case but the efforts failed causing the
Honorable Labor Arbiter to issue an order for the simultaneous filing of position
paper and thereafter other responsive pleadings required under the NLRC Rules
of Procedure.

THE FACTS
(PERTINENT ONLY)

1. Complainant Mary Jane C. Eusebio was hired by Vina Trang on May 2018
to work as all around kitchen staff of the company restaurant located at Century
Mall, Kalayaan Avenue, Makati City.

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 2. As all around kitchen staff, complainant was required to work from
11:00 A.M. to 9:00 PM. with rest period of 2 hours every working day, six (6) days
week. She receives a daily wage of P450.00 plus free lunch and snacks in the
amount of P100.00 every working day.

3. On January 1, 2020 after getting her yearend bonus and salary for the
immediate past month, complainant did not report for work despite the urgent
need of her service due to advent of New Year when the restaurant had full of
customers. Copy of Ms. Rosita G. Aguilar Affidavit is hereto attached and made
integral part hereof.

4. The management of Vina Trang sent her text message requesting her
explanation why she failed to report for work on that important date but
complainant only ignored the message by not sending a reply. Despite receipt of
the text message, complainant since then failed to report as directed leaving
management to declare her on AWOL status.

5. Unknown to the Management, complainant immediately got another

employment at another restaurant and even encouraged the other kitchen staff
of Vina Trang to transfer to the said restaurant.

6. Thus, it came as a great surprise that complainant filed the instant

complaint for illegal dismissal and money claims despite the fact that her failure
to continue her employment was due to her undoing of not reporting for work
because of more lucrative employment with another establishment.

LABOR ARBITER PROCEEDING/DECISION

Due to the failure of the respondents to file position paper and other
responsive pleading as directed and required under the NLRC Rules of Procedure,
the Honorable Labor Arbiter evaluated the case based on the available
documents obtaining from the records of the case.

The Honorable Labor Arbiter then found that complainant was illegally
dismissed from employment entitled to back wages and separation pay and to
salary differentials and other money claims, the dispositive portion of which
reads.

“WHEREFORE, Premises considered, judgment is hereby

rendered finding respondents liable for illegal dismissal.

Accordingly, they are directed to pay complainant the following:

1. Back wages, 13th month pay, SILP & ECOLA

P121,012.57
2. Separation pay P216.773.70

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 3. 13th month pay (1/04/2018-9/28/19) P
18,064.48
4. Salary differentials P
3,510.00
5. Attorney’s fees of 10% P
35,936.08
Total P395,296.83

SO ORDERED”

(Please refer to the records of the case for copy of the Labor Arbiter
decision dated 28 September 2019)

GROUNDS FOR APPEAL

Respondents are relying on the following grounds in allowance of the

instant memorandum of appeal and they are;

1. With due respect and candor, the Honorable Labor Arbiter committed
grave abuse of discretion in finding complainant Mary Jane C. Eusebio
illegally dismissed from employment entitled to back wages and
separation pay despite the fact that her discontinuance of employment
was due to her failure to report for work.

2. With due respect and candor, the Honorable Labor Arbiter committed
patent mistake in the awarding salary differentials to complainant Mary
Jane C. Eusebio despite compliance of the minimum wage and in the
computation of her separation pay; and

3. With due respect and candor, the Honorable Labor Arbiter committed
grave abuse of discretion in finding individual respondent Tuyet Trang
Thile jointly and severally liable with Vina Trang Vietnamese Restaurant.

DISCUSSION/ARGUMENT

Considering that the issues for resolution are intertwined, discussion

thereof shall be made in single presentation but in the order of their appearance.

With due respect and candor, we submit that the Honorable Labor Arbiter
committed grave abuse of discretion amounting to lack or in excess of jurisdiction
in finding that complainant Eusebio was illegally dismissed from employment
entitled to back wages and separation pay.

In holding that complainant Eusebio was illegally dismissed from

employment, the Honorable Labor Arbiter declared in the assailed decision as
follows:
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 “On January 1, 2019, when she informed respondent Tuyet
Trang Thile that she will not be able to report for work that day as
she was not feeling well, she was instead informed that she was
already fired and can no longer go back to work.

Such material allegations were never disputed or denied by the

respondents as they never submitted their responsive pleading. There
is therefore basis to hold the respondents liable for illegal dismissal.
Our finding is in line with the basic tenet that a regular employee can
only be dismissed for cause and in accordance with due process as
provided in Article 279 (now Article 294) of the Labor Code, which the
respondents failed to do. Since the complainant was illegally
dismissed, the respondents are liable to pay her back wages from the
time she was illegally dismissed on January 1, 2019 up to the
rendition of this decision”

From the foregoing, it is clear that complainant Eusebio alleged illegal

dismissal from employment was committed when Individual respondent Tuyet
Trang Thile allegedly informed her that she can no longer go back for work
because she failed to report due to not feeling well on January 1, 2019. Analyzing
such statement, it is submitted that complainant Eusebio could have not been
dismissed on January 1, 2019 since she herself admitted that she cannot report
for work on that day due to not feeling well. The concept of dismissal is the
discontinuation of employment for cause attributable to the employer. Hence, if
the worker is not reporting for work on such date for personal reason he cannot
be considered to have been dismissed on such precise date.

The advice that she can no longer report for work did not constitute as act
of dismissal since complainant Eusebio is not also reporting on such date. This fact
alone should have been appreciated by the Honorable Labor Arbiter that without
respondents’ denial on the alleged illegal dismissal of the complainant, the same
cannot prosper for the simple reason that respondents never dismissed the
complainant from employment. Respondents having denied that complainant
Eusebio was dismissed from employment, the burden now in proving that she
was dismissed from employment whether legally or illegally devolves upon her.

In the case of “Exodus, et. al. vs Biscocho, et. al. G.R. No. 166109, February
23, 2011, Supreme Court held:

“This Court is not unmindful of the rule that in cases of illegal

dismissal, the employer bears the burden of proof to prove that the
termination was for a valid or authorized case. But before the
petitioners must bear the burden of proving that the dismissal was

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 legal, the respondents must first establish by substantial evidence
that indeed they were dismissed. If there is no dismissal, then there
can be no question as to the legality or illegality thereof.”

In the same case of Exodus, et. al. vs Biscocho, et. al. citing the case of
Machica vs. Roosevelt Services Center, Inc., Supreme Court ruled:

“The rule is that one who alleges a fact has the burden of
proving it; thus, petitioners were burdened to prove their allegations
that respondents dismissed them from their employment. It must be
stressed that the evidence to prove this fact must be clear, positive
and convincing. The rule that the employer bears the burden of
proof in illegal dismissal cases findings no application here because
the respondents deny having dismissed the petitioners.”

The above Supreme Court rulings considered, we respectfully submit that

complainant Eusebio utterly failed to prove by clear, positive and convincing proof
that she was dismissed from her employment. Mere allegation that she can no
longer report back for work is not enough to warrant a conclusion of dismissal
from employment.

With due respect and candor, the Honorable Labor Arbiter committed
patent mistake in the awarding salary differentials to complainant Mary Jane C.
Eusebio despite compliance with the minimum wage being implemented in the
area and in the computation of her separation pay.

Gleaned from the computation made on the monetary awards of the

decision that complainant Eusebio was awarded salary differential in the total
amount of P3,510.00. While this amount is inconsequential, the award is flawed
considering that in arriving at the said amount, the Honorable Labor Arbiter did
not factor the other benefits such as the cost of foods extended free to all the
employees including herein complainant. Under the law the cost of food is
considered as part of the wages and hence must be included in the determination
of the amount of wages being paid to the employee.

Complainant in her position paper represented that she was hired as one of
the Kitchen Staff of the respondent Vina Trang on April 2018 and that she was
allegedly dismissed from employment on January 1, 2019. The decision in the
instant case was promulgated on 28 September 2019. From April 2018 to
September 2019 there is a difference of one (1) year and five (5) months.

Assuming without granting that complainant dismissal from employment

was illegal, under the law she is only entitled separation pay equivalent to one
month pay for every year of service with a fraction of six (6) months being

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considered as one whole year. Pursuant thereto, complainant Eusebio is at the
most entitled to separation pay equivalent to two (2) month salary. However in
the computation of separation pay, the amount of P216,773.70 was awarded to
the complainant and this amount is so mind boggling for being so excessive that if
not prevented from being implemented will amount to unjust enrichment on the
part of the complaint.

With due respect and candor, the Honorable Labor Arbiter committed
grave abuse of discretion in finding individual respondent Tuyet Trang Trile jointly
and severally liable with Vina Trang.

Considering that complainant’s money claims are unmeritorious, Vina

Trang and its officers cannot be held liable thereof.

Even assuming without granting that Vina Trang, in the remotest possibility,
is liable of complainant’s money claims, still individual respondent Tuyet Trang
Thile in her capacity as company president is not jointly and severally liable
thereof. Under the law Vina Trang has separate and distinct personality from its
stockholders and officers. In view thereof, in the absence of fraud and bad faith in
the performance of assigned duties Ms. Thile cannot be made jointly and
severally liable with the company.

In the case of Solidbank Corporation vs. Mindanao Ferroalloy, Corporation,

et. al ., citing Tramat Mercantile vs. Court of Appeals 2, the Supreme Court cited
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the rule when personal liability of corporate officers and directors attaches, to
wit:

“Personal liability of a corporate director, trustee or officer

along (although not necessarily) with the corporation may so validly
attach, as a rule, only when:

1. He assents (a) to a patently unlawful act of the corporation,

or (b) for bad faith or gross negligence in directing its affairs,
or (c) for conflict of interest, resulting in damages to the
corporation, its stockholders or other person;

2. He consents to the issuance of watered stocks or who, having

knowledge thereof, does not forthwith file with the
corporate secretary his written objection thereto;

3. He agrees to hold himself personally and solidarity liable with

the corporation; or

1
G.R. No. 153535, July 28, 2005
2
238 SCRA 14, 19, November 7, 1994

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 4. He is made, by specific provision of law, to personally answer
for his corporate action.

PRAYER

WHEREFORE, it is respectfully prayed that the decision dated 28 September

2019 of Honorable Labor Arbiter Jaime M. Reyno is annulled and set aside and a
new one is issued dismissing the case for utter lack of merit.

Other order and relief, just and equitable are likewise prayed for.

Quezon City, 10 February 2020

Atty. Gregorio V. de Lima, Jr.

Counsel for Respondents
No. 6 Colonel Martinez Street,
West Avenue, Quezon City
PTR No.9265388 Jan. 10, 2020, Q.C.
IBP No.02633, Lifetime, Q.C.
Attorney Roll No. 26674
MCLE VI No 0024972 issued 14-04-2019

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, Tuyet Trang Thi Le of legal age, married with address at LG 10B1

Century Mall, Kalayaan Avenue, Makati City under oath, depose and state:
That I am impleaded as individual respondent in the case and the
managing partner of Vina Trang Cuisine & Co. with address at No. 83838
Sampaloc Street, San Antonio Village, Makati City.
That by reason thereof, I have caused the preparation and execution of
the foregoing Memorandum of Appeal;
That I have read its contents and all the allegations therein are true and
correct of my personal knowledge and based on authentic documents;
That I hereby certify that I have not commenced any other action or
proceeding involving the same issues in the Court of Appeals, or any other
Tribunal or Agency;
That to the best of my knowledge, no such action or proceeding in the
Supreme Court, the Court of Appeals, or any other Tribunal or Agency;
That 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 the fact within five (5) days to
this Honorable Court.

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 In witness whereof, I have signed this document this 10 th day of February
2020 in Quezon City.

TUYET TRANG THI LE

Affiant
Subscribed and sworn to before me in Quezon City this 10 th day of February
2020 Affiant exhibiting to me her Driver License No. N03-18-044120 valid until
March 30, 2023 bearing her photograph and signature and I am convinced that
she is one the same person who executed the foregoing verification.

Notary Public
Doc. No.___
Page No.____
Book No.____
Series of 2020

Copy furnished:

Atty. Sylvestre A. Alava

DOJ-PAO Manila District Office
4/F W. Godino Building 350
Antonio Villegas St. Ermita, Manila.