Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Cebu City

xxxxxxxxxxxxxxxxxxxxxxx NLRC RAB VIII Case No. 1-0005-05

Complainant-Appellee. for:

-versus- ILLEGAL DISMISSAl, ETC.

xxxxxxxxxxxxxxxxxxxxxxxx
Respondent/s
x- - - - - - - - - - - - - - - - - - - - - - - - x

APPEAL MEMORANDUM

RESPONDENT-Appellant, by counsel, most respectfully submits this

Appeal Memorandum.

PREFATORY

The Honorable Labor Arbiter rendered a decision on 28 October 2005, the

dispositive portion of the decision stating in this wise:

Wherefore, premises considered, judgment is hereby rendered---

1. Finding complainant xxxxxxxxxxx a regular employee of

respondent Word Broadcasting Corporation for the year 2004;
2. Finding illegality in the dismissal of complainant from his
employment with respondent on December 31, 2004;
3. Ordering respondent xxxxxxxxxx to immediately reinstate
complainant to his previous position immediately upon receipt of
a copy of this Decision;
4. Ordering same respondent to pay complainant the following:

a. backwages (P5,000.00 x 10 months as

computed here only from January 1 –
October 31, 2005 . . . . . . . . . . . . . . . P50,000.00

b. Attorney’s Fees . . . . . . . . . . . . . . . . . . . P 5,000.00

TOTAL P55,000.00

5. Dismissing all the other claims for lack of merit.

SO ORDERED
TIMELINESS OF THE APPEAL
 2

On 28 October 2005 the Honorable Labor Arbiter Philip B. Montances

rendered a decision1 on the instant case. Appellant’s counsel received the
Decision on 3 November 2005. Appellant has ten (10) days from date of receipt
within which to file its appeal, or until November 13, 2005. It is respectfully
submitted that this Appeal Memorandum is filed within the reglementary
period.

THE PARTIES

Complainant-Appellee XXXXXXXXX is of legal age, Filipino, married and

a resident of Blk. 3A Lot 3, St. Scholastica Village, Guindapunan, Palo, Leyte and
hired on May 2, 2000 under a yearly contract as a consultant for technical
services with specific tasks for a professional fee of P5,000.00 per month, until he
filed this case on January 2005, after the expiration of his yearly contract for 2004.

Respondent-Appellant XXXXXXXXXXXXXXX a duly organized

corporation existing under Philippine laws, with principal business address at
Burayan, San Jose, Tacloban City, is represented by XXXXXXXXX with an official
list of 14 regular employees.

STATEMENT OF THE CASE

This is a case for Illegal Dismissal, with the sub-issue of whether or not the
complainant is a regular employee as contemplated by law.

Appellee filed a complaint2 against the respondent on 10 January 2005

before the Regional Arbitration Branch VIII of the NLRC at Tacloban City. A
mandatory conciliation was held on 26 January 2005, but a settlement did not
materialize. Hence, the parties were ordered to submit their respective position
papers.

1
Annex A – Decision dated 28 October 2005/ Received 3 November 2005
2
Annex B – Complaint dated 10 January 2005
 3

Appellee filed his Complainant’s Position Paper 3 dated 14 February 2005

without furnishing a copy to respondent, while appellant filed its respondent’s
position paper4 on 28 February 2005.

On 3 November 2005, respondent and counsel received a copy of the now-

assailed Decision dated 28 October 2005.

Finding the decision contrary to the facts and the law, appellant thus files
this instant Appeal.

STATEMENT OF FACTS

VERSION OF RESPONDENT-APPELLANT:

XXXXXXXXXXXXXXXX is engaged in radio broadcasting. Due to the

nature of its business, it hired fourteen (14) regular employees and a few
consultants, including the herein complainant. The official list of regular
employees and their official designation, which excludes the complainant, are:
XXXXXXXXXXXXX
Per their monthly payrolls5, the regular employees are paid their basic pay
and longevity pay, as well as included in the membership of SSS6, Philhealth7
and Pagibig8, samples of each are hereto attached.

On May 2, 2000 respondent hired complainant under contract as a

consultant for technical services with specific tasks for a professional fee of
P5,000.00 per month, and correspondingly issued was issued an appointment9
valid until December 31, 2000.

On December 29, 2001, complainant was issued a renewal of

appointment10 as consultant for technical services with specific tasks for the same
professional fee, effective January 1, 2002 until December 31, 2003. This again
was extended until December 31, 2004.
3
Annex C – Complainant’s Position Paper dated 14 February 2005/ Filed 18 February 2005
4
Annex D – Respondent’s Position Paper dated 28 February 2005/ Filed 7 March 2005
5
Annex 2 – Payroll of Regular Employees for December 2004
6
Annex 3 – SSS R3-Contribution Collection List for December 2004
7
Annex 4 – Philhealth RF-1 Employer’s Quarterly Remittance Report for December 2003
8
Annex 5 – Pagibig Membership Registration/Remittance Form for November 2004
9
Annex 6 – Appointment dated 2 May 2000
10
Annex 7 – Renewal of Appointment dated 29 December 2001
 4

Complainant was fully paid his professional fees from January 2004 to
December 2004, as evidenced by the 2004 Cash Vouchers for January 11,
February12, March13, April14, May15, June16, July17, August18, September19,
October20, November21 and December22 respectively.

On November 30, 2004, resident manager XXXXXXXXXXX issued a Notice

of Expiration23 to all program handlers, consultants and program blocktimers,
the contents are hereto repleaded:

x-x-x

This is to inform you that all contracts that end on December 31,
2004, either on a fix or extension term, verbal or written, must be
subject to a new negotiation and approval. Failure to signify and
submit their interest to negotiate before and on December 13, 2004
would mean cancellation of programs or termination of
appointment at the end of the year.

The program handlers and consultants are personally required to

submit to the resident manager the following:

1. Letter of interest to continue

2. Financial clearance from the cashier of any accountability
3. Original drug test evaluation from a duly accredited testing
center

The program blocktimers are required to submit personally the

following:

1. Letter of interest to continue

2. Financial clearance from the cashier of any accountability

x-x-x

A copy of this Notice of Expiration was received by the complainant

personally on December 13, 2004 at 7:25 PM, as entered in the excerpts of the
Logbook24.

11
Annex 8 to 8A – January 2004 cash vouchers
12
Annex 9 to 9A – February 2004 cash vouchers
13
Annex 10 to 10A – March 2004 cash vouchers
14
Annex 11 to 11A – April 2004 cash vouchers
15
Annex 12 to 12A – May 2004 cash vouchers
16
Annex 13 to 13A – June 2004 cash vouchers
17
Annex 14 to 14A – July 2004 cash vouchers
18
Annex 15 to 15 A – August 2004 cash vouchers
19
Annex 16 to 16A – September 2004 cash vouchers
20
Annex 17 to 17A – October 2004 cash vouchers
21
Annex 18 to 18A – November 2004 cash vouchers
22
Annex 19 to 19A – December 2004 cash vouchers
23
Annex 20 – Notice of Expiration dated 30 November 2004 issued by Fr. Joseph R. Suson, SVD
24
Annex 21 – Excerpt of the Logbook dated 13 December 2004 at 7:25 PM
 5

Despite this formal notice to complainant, he failed to comply with all the
requirements for renewal.

Then, on January 10, 2005, complainant files this case for illegal dismissal.

VERSION OF COMPLAINANT-APPELEE:

Complainant, after the expiration of his term as consultant on December

2001 the same appointment was never renewed. But he still continued working
in the company performing the job of spinner and all job of editing doing it most
in overtime and even lasting until morning. He is made to report for work in all
declared legal holiday in every year in other words the complainant perform or
has been engaged in performing activities which are usually necessary or
desirable in the usual business or trade of the employer. (Statement of Facts,
Complainant’s Position Paper, p. 1, supra).

In support of his complaint, he attached affidavits of XXXXXXXX who

both alleged that complainant “has been performing a job with the company
outside his duties as technical consultant as spinner and editing since January
2001 up to the time he was terminated in December 2004”.

ISSUES

1. THE HONORABLE LABOR ARBITER COMMITTED

GRAVE ERROR WHEN HE RULED THAT THE
COMPLAINANT IS A REGULAR EMPLOYEE FOR THE
YEAR 2004.

2. THE HONORABLE LABOR ARBITER COMMITTED

GRAVE FACTUAL AND LEGAL ERROR WHEN HE
RULED ON THE ILLEGALITY IN THE DISMISSAL OF
COMPLAINANT FROM HIS EMPLOYMENT WITH
RESPONDENT ON DECEMBER 31, 2004.

3. THE HONORABLE LABOR ARBITER ERRED WHEN HE

ORDERED THE IMMEDIATE REINSTATEMENT OF
COMPLAINANT IMMEDIATELY UPON RECEIPT OF THE
ASSAILED DECISION.
 6

4. THE HONORABLE LABOR ARBITER ERRED WHEN HE

GRANTED PAYMENT OF BACKWAGES AND
ATTORNEY’S FEES TO COMPLAINANT.

ARGUMENT

All these four (4) issues, being interrelated, shall be discussed jointly.

Complainant alleges that he was illegally dismissed, while respondent

denies the allegation and claims that his contract of work expired on 31
December 2004.

DISCUSSION

On the first issue, what was the kind of employment of complainant –

regular or contractual? Complainant claims that his employment up to December
31, 2001 was contractual or for a fixed term as consultant for technical services,
but contends that thereafter, his appointment as contractual employee was no
longer renewed but his services were still maintained by respondent, thus, he
considers himself as having turned to be a regular employee under Article 280 of
the Labor Code, considering that he also performed the functions of spinner and
editing – jobs outside his consultancy contract – and that his services were
necessary and desirable in the usual business of broadcasting of respondent 25.

But this claim is rebutted by respondent, as the contractual employment of

complainant was in fact renewed on December 29, 2001 to cover the period
January 1 to December 31, 2002 and from January 1 to December 21, 2003 per
document called “renewal of appointment, with the conformity of
complainant.26.

However, the labor arbiter digs into the issue of whether or not a contract
of renewal was made between the parties for the year 2004. The complainant
claims that he was converted to the status of a regular employee pursuant to
Article 280 of the Labor Code sans any document or appointment to prove it. As
such, the labor arbiter applies Article 4 of the Labor Code, that in case of doubt, it

25
Pp. 3-4, 28 Oct 2005 Decision
26
P. 4, ibid.
 7

shall be resolved in favor of labor. Thus, he finds that complainant became a

regular employee starting January 1, 2004 until his dismissal on December 31,
2004 for the actual activities, including editing and spinner, he performed were
necessary or desirable in the business of broadcasting of respondent 27.

On this premise, he concludes the second issue that complainant was

illegally dismissed, since the Notice to him dated 30 November 2004 is no longer
applicable to him. The Notice required consultants to submit on or before
December 13, 2004 their letter of interest to continue contract, clearance from
cashier and result of drug test.

As such, he ordered for the Relief due complainant under Article 279 of
the Labor Code, which are reinstatement to his previous position and to full
backwages computed from January 1, 2005 until his actual reinstatement 28.

WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Commission that a decision be rendered REVERSING the assailed
Decision dated 28 October 2005 rendered by Honorable Labor Arbiter Philip
Montances, declaring the complainant as a regular employee of respondent, and
finding his dismissal as illegal, entitling him to reinstatement and granting full
backwages and attorney’s fees, and declaring that complainant is a contractual
worker, whose term or work expired on December 31, 2004.

Other reliefs just and equitable in the premises are also prayed for.

November ____, 2005 at Tacloban City for Cebu City.

XXXXXXXXXXXX

COPY FURNISHED: By registered mail with return card for practicability

27
P. 5, ibid.
28
P. 6, ibid.
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XXXXXXXXXXXXXXX

Republic of the Philippines )

In the City of Tacloban ) SS

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, FR. JOSEPH R. SUSON, after having been duly sworn according to

law, hereby depose and say: THAT---

I am the resident General Manager and authorized representative of

respondent-appellant WORD BROADCASTING CORP., DYDW-RADIO DIWA,
Tacloban City, in the above-entitled case; that I have caused the preparation and
filing of the foregoing APPEAL MEMORANDUM and its Annexes; that I have
read and fully understood all the allegations therein contained; and that the same
are all true and correct according to my own personal knowledge and belief, and
based on genuine and authentic documents; and further,

I CERTIFY that I had not commenced any action against the complainant-
appellee for the same cause and over the same subject matter, nor is there any
similar case pending before the Supreme Court, Court of Appeals, court or any
agency or tribunal, judicial or administrative; that I undertake to inform this
Court of any action pending or otherwise over the same cause or subject matter
within five (5) days from date of knowledge.

IN WITNESS WHEREOF, I have hereunto set my hand this ___

November 2005 at Tacloban City, Philippines.

FR. JOSEPH R. SUSON, SVD

Affiant
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SUBSCRIBED AND SWORN to before me this _____ November 2005 at

Tacloban City, Philippines.

Doc. No. ___

Page No. ___
Book No. ___
SERIES OF 2005