Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Quezon City

THIRD DIVISION

NIDA M. REQUIJA, ET AL.

Complainants,
NLRC LAC 03-000784-21
RAB CASE NO. 02-00621-20
-versus-

SOUTHFLAME MARKETING CORP,

ET. AL.,
Respondents.
x-------------------------------------------------x

MOTION FOR RECONSIDERATION

OF THE DECISION DATED MAY 28, 2021

COME NOW Respondents, through counsel, and to the

Honorable Commission, most respectfully move for the
reconsideration and setting aside of the Decision dated May 28,
2021, copy of which was personally received by the counsel for the
respondents on October 6, 2021, as evidenced by her signature as
appearing in the Notice of Decision attached to the records of the
case which is hereto attached as Annex “A”), the dispositive portion
of which Decision reads as follows:

“WHEREFORE, premises considered, the appeal filed by

Nida Requija is GRANTED. Accordingly, the 20 October 2020
Decision of Labor Arbiter Maki T. Datu Ramos II is SET ASIDE and
a new judgment is RENDERED as follows:
 -2-

1. DECLARING Nida N. Requija to have been illegally

dismissed from employment;
2. ORDERING Southflame Marketing Corporation to pay
Nida Requija the following:

a. Separation pay, provisionally computed in the

amount of PHP 83,772.00;

b. Backwages, provisionally computed in the amount

of PHP 250,023.66;

c. Salary differentials in the amount of PHP

101,527.14;

d. 13th month pay in the amount of PHP 38,932.60;

e. Holiday pay in the amount of PHP 19,468.00;

f. Service incentive leave pay in the amount of

PHP7,487.75;
and
g. Attorney’s fees equivalent to ten percent (10%) of
the total judgment award.

3. DISMISSING all other money claims for lack of merit.

SO ORDERED.”

and in support of this Motion for Reconsideration, herein

respondents most respectfully contend:
 -3-

With due respect to the Honorable Commission, Third

Division, respondents believe that the Labor Arbiter’s ruling that
there was no illegal dismissal is NOT misplaced and the Labor
Arbiter was correct in stating in his Decision that :

“This Arbitration Office is not unmindful of the rule that the

employer has the burden of proving that the employee’s termination
was for a valid or authorized cause. However, before the employer
is tasked to discharge this burden, it is incumbent upon the
employee to prove by substantial evidence the fact that he was
indeed illegally dismissed from employment.

Illegal dismissal must be established by positive and overt acts

clearly indicative of a manifest intention to dismiss. This critical
affirmative fact must be proved by the party alleging the same with
substantial evidence as required by the nature of this case. Mere
allegation is neither proof nor evidence”. (Citing the cases of Cañedo
v. Kampilan Security and Detective Agency, Inc., G.R. No. 179326,
July 31, 2013, 702 SCRA 647, 658; Noblejas v. Italian Maritime
Academy Phils., Inc., G.R. No. 207888, June 9, 2014, 725 SCRA
580-581; Villanueva v. Philippine Daily Inquirer, Inc., 605 Phil. 926,
937 (2009)”

The Honorable Commission stated in the Decision that the

doctrine saying that “it is not illegal dismissal that an employee
must first prove by substantial evidence, but the fact of dismissal.
This doctrine was applied in Canedo and Noblejas because
employers therein vehemently denied dismissing the employees.
However, this is not the case here.”

In this contention of the Honorable Commission, respondents

respectfully beg to disagree. The Hon. Commission stated in its
decision that the Noblejas case is not applicable simply because
respondents in this case have admitted having terminated the
complainant for cause.
 -4-

To have a better application of the Noblejas case, it is wise to

take note that there were two separate allegations as to when the
complainant was allegedly dismissed. Complainant, in her
complaint and Position Paper alleged that she was allegedly
dismissed on January 15, 2020. The respondent, on the other
hand, admitted having terminated/dismissed the complainant for
just cause on February 2, 2020. With this, there is no need to
further explain and specifically state that respondents deny having
terminated/dismissed the complainant on January 15, 2020
because respondents still gave the complainant the opportunity and
due process of submitting her explanation and present her position.
But complainant disregarded the notice being served upon her.
Instead of reporting for work and answering the memo,
complainant went to TULFO and SENA willfully disregarding the
notice to report for work issued by the respondent.

Respondents believe that the doctrine adopted by the Supreme

Court in Canedo and Noblejas can very well be applied in this case
contrary to what is stated in the Decision. This is simply because
respondents obviously denied having dismissed the complainant on
January 15, 2020 as respondents admission was that the dismissal
with justifiable cause took place on February 2, 2020.

“Fair evidentiary rule dictates that before employers are

burdened to prove that they did not commit illegal dismissal, it
is incumbent upon the employee to first establish by
substantial evidence the fact of his or her dismissal. Ledesma,
Jr. v. National Labor Relations Commission, 562 Phil. 939, 951
(2007).
The unsigned copy of Release, Waiver and Quitclaim could not
be considered positive and overt act indicative of the act of
dismissing the complainant from the service on January 15, 2020.
Remember that complainant is the Branch Head of the
respondents. She is in
 -5-

possession of all forms and documents relative to the operations of

the business and those pertaining to employees under her
supervision. Submitting such unsigned form without any
supporting evidence to prove that indeed such unsigned form of
Release, Waiver and Quitclaim came from the respondents will not
have any probative value. It is a mere scrap of paper that has no
significance whatsoever.
As correctly stated by the Hon. Labor Arbiter, the text message
of a certain Mary Ann on January 15, 2020 did not support the
allegation that complainant was dismissed on January 15, 2020,
instead it just showed the intention of the complainant to rest and
find another job. Worth noting likewise is the phrase that came
from the complainant saying that “x x x salamat Ann balik pko
bukas dyan x x x” ---- clearly indicating that there was no
dismissal that happened on January 15, 2020.
But then, aside from not gaining any support from this text
message, complainant could not present this text message as a
supporting evidence or a positive proof that she was dismissed on
January 15, 2020 without the persons in the alleged conversation
certifying under oath that there was indeed such conversation in
the mobile phones of each and every participant in the
conversation. Though text messages may be admitted as electronic
evidence, before it could be accepted, there should be sufficient
proof of its authenticity coming from the original source of the said
text messages. Again, this conversation/text messages of the
complainant with a certain Mary Ann is also a mere scrap of paper
with no evidentiary value at all.
What is left for the complainant as proof of positive and overt
act of dismissal is just mere self serving allegation. As stated by the
Hon. Arbiter citing the case of Villanueva v. Philippine Daily Inquirer,
Inc. “Mere allegation is neither proof nor evidence”.
-6-

Complainant was accorded

due process, both substantive
and procedural.

Respondents, in their Position Paper, alleged that on January

15, 2020, complainant was informed that she was being directed to
report for work at the Bacoor Cavite branch. Complainant
admittedly reported for work on January 15, 2020. She was very
well informed of this re-assignment of post. Complainant was also
aware of the on-going investigation and she knew that she was
being investigated. And in order not to compromise the investigation
and that the same be not influenced by the complainant,
transferring the complainant to another post while being
investigated is a sound company policy. There was no termination
that happened on January 15, 2020 as complainant, in her text
message with a certain Mary Ann, stated that “balik pko bukas
dyan”. Sad to state, the following day, complainant did not report
for work nor proceed to Bacoor Cavite branch. As alleged by the
respondents in the Position Paper, calls and text messages were
made as we must admit, before resorting to writing memos, given
the nature of business of retailing liquefied petroleum gases (LPG),
office heads/staffs will make calls and text messages first to
communicate with workers/employees as the operation of small
branches will be hampered by lack of staff specifically Branch
Heads to run the store. True, that the mailing of the Memo serving
as the FIRST NOTICE of the two-notice rule was done on a later
date, that was because respondents waited for the complainant to
report for work. There was communication with the complainant
through text messages and calls and yet complainant refused to
report and instead went to TULFO and later on to SENA.

With this deliberate refusal to report for work without even

filing LEAVE OF ABSENCE with the clear and open disagreement to
be re-assigned to Bacoor Cavite Branch, respondents made the
termination on February 2, 2020 and the termination serving as
the SECOND NOTICE was mailed to her on February 3, 2020.

-7-

Hence, it is not correct to say that complainant was illegally

dismissed on January 15, 2020.

The correct way to say is that complainant WAS NOT

ILLEGALLY DISMISSED on JANUARY 15, 2020 but complainant
WAS LEGALLY DISMISSED on February 2, 2020.

The belated mailing of the memo will not justify the act of the
complainant in not reporting for work. Verbal order to report to
Bacoor Cavite Branch was made known to the complainant on
January 15, 2020 and formal memorandum of assignment was to
be given to the complainant the following day, January 16, 2020,
but to respondents’ dismay, complainant did not show up the
following day. Respondents waited for the complainant the whole
day, giving calls and text messages, but despite efforts of the
respondents, complainant did not report for work leaving the
Bacoor Cavite branch unattended. This prompted the respondents
to prepare on the same day, before the end of business operation
and office hours to issue the Memo or Notice to Explain. That was
the reason why the order of re-assignment and Notice to explain
have the same date January 16, 2020. These documents are not
anti dated. They were prepared on that day January 16, 2020 only
that they were not mailed immediately because respondents were
still giving the complainant the chance to report and she knew of
the memo issued by the respondent even prior to the mailing of the
memo.

There is no reason likewise to doubt why the Audit Report was

also dated January 16, 2020. Be it noted that the Audit Report was
addressed to the Respondents. The formal investigation was about
to commence only after complainant was supposed to be
transferred to Bacoor Cavite Branch in order to avoid being
influenced by the complainant. It was pre-mature to give the
complainant a copy of the Audit Report although complainant
already sensed of the on-going initial investigation as the one
conducting the audit was in the branch making review of the
documents/records vis a vis actual content of the warehouse.
-8-

Complainant having been

terminated with cause
and not illegally dismissed
is not entitled to any
separation pay.

The Supreme Court in the case of Claudia’s Kitchen Inc. and

Enzo Squillantini vs. Ma. Realiza S. Tanguin (GR 221096, June 28,
2017, Ponente: Associate Justice Jose C. Mendoza) elucidated: x x
x , an employee dismissed for any of the just causes
enumerated under Article 297 of the same Code, being causes
attributable to the employee’s fault, is not entitled to
separation pay.x x x

The same is true with backwages. How can the complainant be

entitled to backwages when she was the one who chose not to
report for work despite the fact that respondents have been
requiring her to report for work.

The award of Holiday Pay

in the amount of PHP19,468.00
is not supported by evidence,
hence, has no basis in law.

Holiday pay is in the nature of overtime pay as this is work

performed beyond the normal working hour done on a holiday or rest
day. Under the law, the burden of proof is on the employee to
show proof that he/she was authorized to work on a rest day or
holiday and that he/she did actually work.
 In this case, complainant has not presented any proof to show
that she was required to work on a holiday/s and no evidence
whatsoever that she did work on certain holidays. What the

-9-

complainant presented was a MERE SELF SERVING LIST OF

HOLIDAYS in the Philippines without any proof whatsoever of any
document that will show that the employer directed her to work in
these holidays and proof that she did work during these holidays.
Complainant, being the Branch Head working in the office of the
branch, has all the access to records including log books,
attendance sheets, if any, and other documents that could show
that respondents have directed employees including her to work
during specific holidays. How was the Honorable Commission able
to arrive at such an amount of PHP19,468.00? Just from the list of
holidays enumerated by the complainant in the Position Paper
without any supporting evidence to show that complainant indeed
work during these holidays?
Secondly, complainant’s position is BRANCH HEAD. And
branch heads are considered MANAGERIAL EMPLOYEES. They are
considered the TINY BOSS in the branch supervising all employees
with the exercise of full discretion over the operations of the
business and affairs of employees under her supervision. Under the
law, “managerial employees” are included among the “exempt
employees” from the benefits of Overtime Pay/Holiday Pay and
Premiums. (DOLE-BWC Handbook on Workers’ Statutory Monetary
Claims)
Lastly, from the decision itself denying the complainant’s claim
for overtime pay, citing the case of South Cotabato Communications
Corporation v. Sto. Tomas, the burden of proving entitlement to this
benefit lies on the employee because this is not incurred in the
normal course of business. Hence, considering that working on a
holiday or any rest day can be considered as working not in a
regular normal day but working apart and beyond the normal
working days, this can be treated as an overtime job. It follows
then that complainant has the burden of proving that she indeed
worked on specific holidays. There being no proof presented by the
complainant, this negates her claim for holiday pay, premium pay
or rest day.
-10-

No basis on the award

of 13th month Pay as
proof has been presented
that Complainant did
receive her last 13th month
pay.

Respondents have attached to their Position Paper the proof

that complainant has signed the list of employees who received the
last 13th month pay. This only shows that it is the policy of the
respondent to give the annual 13th month pay to their employees.
Though the complainant questioned the list containing signatures
for not indicating the full name of employees, the list of employees
who signed specifically indicated therein the first name of the
complainant “NIDA”. The Honorable Commission could very well
see and compare the signature of “NIDA” as appearing in the list of
workers who received 13th month pay with the signature of the
Complainant NIDA REQUIJA in the Verification of her Position
Paper and close scrunity thereof will reveal that the signatures in
both documents are exactly the same. Most important point to
consider is that complainant did not deny her signature in the
list of workers who received the 13th month pay. Complainant
filed her Reply and she did not bother to deny her signature in
the list.

Complainant is not entitled

to the award of service incentive
leave of PHP7,487.75.
 With due respect to the Honorable Commission, per decision,
the burden of proof is on the employer once the employee has set
up these claims in the Complaint and Position Paper simply
because employees do not usually have access to records.

Respondents beg to disagree. Respondents reiterate that

complainant is the BRANCH HEAD, hence, she has full access to
the

-11-

records of the store. The main reason why the respondents wanted
her to be re-assigned so another branch so as not to compromise
the investigation as complainant has the tendency and opportunity
to influence and cure defective data, receipts and other documents
where she has full access.

Secondly, the Labor Code provides that the rule on incentive

leave does not apply to the following: 1) those of the government
and any of its political subdivisions; 2) domestic helpers and
persons in the personal service of another; 3) managerial
employees as defined in Book 3 of the Labor Code; 4. x x x and
7) those employed in establishments regularly employing less
than ten employees.

From the above list of exceptions, respondents were able to

prove nos. 3 and 7 in the exceptions. First, that complainant, being
the BRANCH HEAD, is considered a managerial employee.

To support this, LAW INSIDER defines Branch Head as

the employee who has managerial responsibility for a key
activity or activities of the corporation. From the definition
itself, it is clear that a BRANCH HEAD is a managerial employee.

For no. 7 in the exceptions, needless to say that respondents

showed proof that they are employing less than ten (10) employees
as can be seen in the list of persons who received the 13 th month
pay. Inasmuch as the complainant did not bother to deny her
signature in the list of employees who received the last 13th month
pay, it bears stressing that she has no single right to deny the
signatures of any person appearing on the list. The list is a valid
evidence to show that respondents are employing less than ten (10)
employees as there were only six (6) person who signed the list and
who received the 13th month pay.

-12-

As what the doctrine laid down in the case of Villanueva v.

Philippine Daily Inquirer, Inc. in Illegal Dismissal case that “Mere
allegation is neither proof nor evidence”. There is no reason
why the same doctrine cannot be applied in determining the
entitlement for holiday pay and SILP. Because if the Honorable
Commission will believe in all bare allegations of the complainant in
their complaints and Position Papers, NLRC will be filled with huge,
voluminous cases of MONETARY CLAIMS unsupported with any
proof or evidence.

Award of salary differentials

is pre-mature.

Respondents have presented proof like the list of employees

who received 13th month pay that they are employing less than ten
(10) workers. Under the WAGE RATIONALIZATION ACT or Republic
Act No. 6727, exempted from the minimum wage requirements are
retail/service establishments employing not more than ten (10)
workers.

In its decision, the Honorable Commission pointed out the

provision of RA 6727 which states that “ Retail establishments
regularly employing not more than ten (10) workers may be
exempted from the applicability of this Act, upon application with,
and as determined by, the appropriate Regional Board in accordance
with the applicable rules and regulations issued by the Commission.”
 Not having found the “alleged granted application for
exemption”, the Honorable Commission conclusively decided that
complainant is entitled to salary differentials.

Again, with due respect to the Honorable Commission, it

disregarded the succeeding paragraph of the same provision which
states that “Whenever an application for exemption has been
duly filed with the appropriate Regional Board, action on any

-13-

complaint for alleged non-compliance with this Act shall be

deferred pending resolution of the application for exemption
by the appropriate Regional Board. x x x”

With this, the award of salary differential in the amount of

PHP101,527.14 is pre-mature.

The award of attorney’s

fee in the amount equivalent
to 10% of the total judgment
award is not proper.

The general rule is that attorney's fees may not be awarded

where there is no sufficient showing of bad faith in a party's
persistence in a case other than an erroneous conviction of the
righteousness of one’s cause.( Car Cool Philippines, Inc. v. Ushio
Realty & Development Corp., 515 Phil. 376 (2006). The rule,
however, takes a turn when it comes to labor cases.

The established rule in labor law is that the withholding of

wages need not be coupled with malice or bad faith to warrant the
grant of attorney’s fees under Article 111 of the Labor Code. All that
is required is that lawful wages be not paid without justification,
thus compelling the employee to litigate.( Kaisahan at Kapatiran ng
mga Manggagawa at Kawani sa MWC-East Zone Union v. Manila
Water Company, Inc. G.R. No. 174179, 16 November 2011, 660
SCRA 263, citing PCL Shipping Phil., Inc. v. NLRC, 540 Phil. 65. Cited
in Tangga-an v. Philippine Transmarine Carriers, Inc., G.R. No.
180636, 13 March 2013, 693 SCRA 340; See also San Miguel
Corporation v. Del Rosario, 513 Phil. 740 (2005).

In the instant case, there was no unlawful withholding of

wages. Complainant opted not to report for work and pre-empted
the formal investigation to be conducted by the management.
Instead of reporting for work at the Bacoor Cavite Branch,
complainant went to

-14-

TULFO and later to SENA. Complainant was not illegally dismissed

on January 15, 2020. There was no salary that was not given to
her. There were no previous claims for unpaid wages prior to her
filing of complaint before the NLRC. There was no issue of
withholding of wages prior to her complaint. Respondents did not
act in bad faith in all their dealings with the complainant. On the
contrary, it is the complainant who acted in bad faith just to evade
facing charges of the would-result of the investigation regarding the
anomaly in the branch where she was the Branch Head.

With that, respondents believe that the award of attorney’s fees

in favor of the complainant has no basis in law.

PRAYER

WHEREFORE, in the interest of justice and fairplay, it most

respectfully prayed that the Decision dated May 28, 2021 be
reconsidered and set aside and that the Decision dated October 29,
2020 of the Labor Arbiter MAKI T. DATU-RAMOS II be reinstated
and AFFIRMED in toto.

Dasmarinas City, Cavite for Quezon City,

October 13, 2021.

 MIRIAM S. CLORINA
Counsel for the Respondents
D. Mangubat St., Barangay Zone 3
Dasmarinas City, Cavite
E-mail ad: atty.clorinalawoffice@gmail.com
Ofc. Tel. No. 046-8503730
Mobile: 09984792649/09178092423
PTR No. 2874112/ 1-04-2021
Dasmarinas City, Cavite
IBP Lifetime No. 02009/ Roll No. 38004
MCLE Cert. of Compliance VI
No. 0021430/4-11-19
-15-

Copy furnished:

ATTY. LISETTE A. MANDOCDOC

Public Attorney’s Office
6th Floor, DOJ Bldg.
Justice Palma Hall, Quezon City Hall Compound
Quezon City