LABOR CASES

2. Memorandum

Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Quezon City

BONES INC.,
Appellant-Respondent.

- versus - NLRC CASE NO. 112456

UHARA AND SCOTTY

Appellees-Complainants.

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APPEAL AND MEMORANDUM OF APPEAL

Appellants-respondents, by counsel, unto this Honorable

Commission, most respectfully state, thus:

JURISDICTIONAL FACTS

1. On March 10, 2020, appellant-respondent received a copy, through its

authorized representative Mr. Sulu, of the subject Decision of the
Hon. Labor Arbiter Eduardo J. Carpio in NLRC Case No. 00-06-
05227-20. Thus, appellant-respondent has until March 20, 2020
within which to file its Appeal and Memorandum of Appeal;

2. Appellant-respondent most respectfully appeals the Decision of the Hon.

Carpio to the Honorable Commission and submit the instant
Memorandum of Appeal.

3. In his Decision, the Hon. Carpio ruled, to wit:

“WHEREFORE, premises considered, judgment is

hereby rendered declaraing complainants' dismissal
as illegal. Respondents are hereby ordered to pay
complainant Rio the total amount sixty seven
thousand six hundred pesos (P67,600.00) (sic) and
complainant Bones the total amount of eighty four
thousand five hundred pesos (P84,500.00)
representing their separation pay and full
 backwages. All other claims are hereby ordered
dismissed.”

4. The Hon. Carpio committed grave abuse of discretion in rendering the

above decision and committed serious errors in the findings of facts
which, if not corrected, would cause grave or irreparable damage or
injury to the appellant-respondent as discussed in the Assignment of
Errors and Arguments below:

5.

ASSIGNMENT OF ERRORS

6. The Hon. Carpio committed grave abuse of discretion in rendering the

above decision and committed serious errors in the findings of facts in
finding that:

a. Complainants-appellees were illegally dismissed.

b. Complainants are entitled to separation pay and full

backwages.

ARGUMENTS

Complainants-appellees were illegally dismissed.

7. With all due respect, it was serious error for the Hon. Carpio to have
found that appellees-complainants were illegally dismissed.
Appellees-complainants could not have been illegally dismissed
because they were never dismissed in the first place.

8. Even a cursory examination of complainants-appellees’ Position Paper

and other pleadings in the proceedings a quo will readily show that
they failed to substantiate the alleged dismissal, much more the
alleged illegal dismissal.

9. Appellee Rio claims to have been dismissed on May 12, 2019 but other
than this barren claim, he is unable to show how he was dismissed or
by whom.

10. The same could be said of appellee Bones. If indeed they were
dismissed, they could have easily shown a copy of any letter or notice
of termination/dismissal coming from appellants.

11. Appellees never did. At no time were they able to show any such letter
or notice or any other document of termination/dismissal coming from
appellants.

12.Neither were appellees able to show even any testimonial evidence of

such termination. Appellees themselves have been unable to show, at
 least even by testimonial evidence, how they were terminated.

13.Complainants-appellees failed to indicate the circumstances of their

alleged termination, including stating the factual details of who
terminated them, when, and how. This failure to even make such
cursory allegation of the basic circumstances of the alleged
termination should demonstrate that the alleged tale of termination is
no more than a fairy tale that should not have been given credence by
the Hon. Carpio.

14.While it is true that an employer has the burden to prove the legality of
any termination, at the very least, a complaining employee must be
able to substantiate an alleged termination. In the recent case of
McLeod vs. NLRC, et al. (G.R. No. 146667, January 23, 2007), the
Supreme Court reiterated, thus:

“It is a basic rule in evidence that parties must

prove their affirmative allegations. While technical
rules are not strictly followed in the NLRC, this does
not mean that the rules on proving allegations are
entirely ignored. Bare allegations are not enough.
They must be supported by substantial evidence at
the very least.”

15.In the instant case, the complaining workers were never dismissed. They
have never been able to prove their dismissal. Not with any
documentary evidence. Not with any testimonial evidence. Not even
with any evidence except their very bare, scant allegations.

16.It is admitted that complainants were on different dates asked to go on

forced leave. But the act of asking both complainants-appellees to go
on forced leave is not equivalent to termination of their regular
employment.

17.Appellants-respondents merely exercised their right under Art. 286 of the

Labor Code to suspend the work of some of its workers when there is
no work to be done.

18.Under the said provision:

“ART. 286. When employment not deemed

terminated.- The bona fide suspension of the
operation of a business or undertaking for a period
not exceeding six (6) months, or the fulfillment by
the employee of a military or civic duty shall not
terminate employment. In all such cases, the
employer shall reinstate the employee to his former
position without loss of seniority rights if he
indicates his desire to resume his work not later than
one (1) month from the resumption of operations of
 his employer or from his relief from the military or
civic duty.”

19.In Philippine Industrial Security Agency Corp. vs. Dapiton, et al. (G.R.
NO. 127421, December 8, 1999), the Supreme Court stated, to wit:

“We stress that Article 286 applies only when

there is a bona fide suspension of the employer's
operation of a business or undertaking for a period not
exceeding six (6) months. In such a case, there is no
termination of employment but only a temporary
displacement of employees, albeit the displacement
should not exceed six (6) months. The paramount
consideration should be the dire exigency of the
business of the employer that compels it to put some of
its employees temporarily out of work.”

20.The forced leave status of complainants-appellees (during which the

contract of The Company, Inc. with its clients had expired) was for a
brief period of time not exceeding six months. Before the end of the
six-month period from the time of their forced leave, complainants-
appellees were asked to report back for work.

21.This explains why there is no notice or letter of termination on record

whatsoever. Because the employment of complainants-appellees was
never terminated.

22.In par. 5 of respondents-appellants’ Position Paper, respondents-

appellants made a categorical and unconditional statement that “they
(complainants) are now being recalled for the next project.”

23.Again, in the respondents-appellants’ Reply to Position Paper of the

Complainants, the fact that complainants-appellees were never
terminated was reiterated, thus:

“In fact they were recalled to report for work since there
was another project contracted by the respondents, however, the
complainants refused to report for work. Thus, they actually
and inferentially resigned or abandoned their employment.”
(Par. 1)

24.Once more, in respondents-appellants’ Rejoinder to Complainant’s

Reply, the non-termination of complainants’-appellees was further
demonstrated, to wit:

“Moreover, there is no termination in question because the

complainants were required to report for work for the next
project of the company but they refused to accept it and instead,
filed the instant case under the erroneous belief that they were
dismissed. Such alleged dismissal is unfounded considering
 that the company next project is available to them.” (Par. 2)

25.All the pleadings of respondents-appellants were consistent on three

points:

a. Complainants-appellees were never terminated.

b. Complainants-appellees were asked to report for work in
another project; and
c. Complainants-appellees refused to report for work in the
next project.

26.Even then, respondents-appellants did not terminate their employments

with the company.

27.The fact that complainants-appellees were asked to be recalled for the

next project belies any claim of termination, much less of an illegal
termination.

28.Complainants-appellees assert that respondents-appellees had no just or

authorized cause for their alleged dismissal. Neither did they comply
with procedural due process.

29.But as demonstrated beyond cavil, respondents-appellants never

terminated the employment of complainants-appellants.

30.Complainants-appellees mistakenly understood their having been forced

to go on leave under Art. 286 as termination of their employment. In
fact, the declaration by complainants-appellees that they did not want
to be reinstated (“Relief” portion of their Complaint) demonstrates
that they had voluntarily refused to continue with their employment
with appellant-respondent.

Complainants are entitled to separation pay and full backwages.

31.Because the complainants-appellees were never dismissed, there could be

no occasion for any illegal dismissal.

32.And there being no illegal dismissal, they are not entitled to any
separation pay and full backwages.

PRAYER:

WHEREFORE, it is most respectfully prayed that the ruling of the

Hon. Carpio:

a. Declaring complainants' dismissal as illegal be reversed and set

aside.
 b. Holding respondents-appellants liable for the payment to
complainant Rio of the total amount sixty seven thousand six
hundred pesos (P67,600.00) (sic) and complainant Bones the
total amount of eighty four thousand five hundred pesos
(P84,500.00) representing their separation pay and full
backwages be reversed and set aide.

Furthermore, the Complaint by complainants-appellees should be dismissed

for being without any factual or legal basis.

All other relief just and equitable under the premises are likewise prayed for.

Davao City (For Quezon City).

March 14, 2020.

Atty. Aven Sina B. Caubang

Counsel for Plaintiff
Roll of Atty. No 718308
IBP No. 187308;
PTR No. 1806083A; 1/8/2020
MCLE No. 524162

3. Certiorari – Labor Case

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
3rd Division Manila

SULU CO.
PETITIONER,

--VERSUS-

NATIONAL LABOR RELATIONS COMMISSION

RESPONDENT
CHEKOV, ET AL.
(PRIVATE RESPONDENTS),

X------------------------------------------X

PETITION FOR CERTIORARI

 Petitioner Corporation through the undersigned counsel in the above-
entitled case, unto this Honorable Court, most respectfully states and alleges:

NATURE OF THE PETITION

1. This is a petition for Certiorari under Rule 65 of the 1997 Rules of

Civil Procedure assailing the resolution of the National Labor
Relations Commission (NLRC for brevity) Second Division dated
February 13, 2020 (which is referred as Annex “A” hereof) pertaining
to the denied Motion for Reconsideration of its previous decision;

2. The Petitioner was able to timely file the Motion For Reconsideration
of such resolution of the National Labor Relations Commission.
Unfortunately, the NLRC denied said motion on its resolution dated
February 20, 2020;

3. The Petitioner is now assailing the propriety of the NLRC decision in

dismissing the motion and hereby raise pure questions of law,
considering that there is no plain, speedy and adequate remedy
available in the ordinary course of law- hence, this petition;

TIMELINESS OF THE FILING OF THE PETITION

1. That petitioner through its president had received via his secretary the
assailed NLRC decision denying the motion for reconsideration on
February 27, 2020. This petition is timely filed because it is still
within the time frame allowed by law.

THE PARTIES

1. That petitioner is a corporation duly organized and registered under

the laws of the Philippines, represented by it’s President, of legal age,
Filipino, single, with an office address at #34, 5th St. Bonifacio
Global City Taguig Metro Manila, where she may be served the
summons and other processes of this Honorable Court;

2. That respondent NATIONAL LABOR RELATIONS COMMISSION

(NLRC) is a quasi-judicial body tasked to promote and maintain
industrial peace by resolving labor and management disputes
involving both local and overseas workers through compulsory
arbitration and alternative modes of dispute resolution. It is attached
to the Department of Labor and Employment for program and policy
coordination with duties and responsibilities pursuant to law duly
represented by its CHAIRMAN MARK PAUL LOMOD, of legal age,
 Filipino with postal address at NLRC OFFICE, Quezon City, where
he may be served the summons and other processes of this Honorable
Court.

STATEMENT OF MATTERS AND FACTS INVOLVED IN THE

CASE

1. In 2013, the Defendant, joined the rally of the workers against the
management. Due to this charge, they were summarily dismissed by
the company. filed a complaint for illegal dismissal to the Labor
Arbiter. He alleged that he was not afforded due process because he
was not given any notice in violation of the two-notice rule by the
Labor Code and management should pay him amount equivalent to
the number of years that he worked for the company which is ten
years;

2. The Labor Arbiter ruled in favor of the Juan de La Cruz, et al. The
dispositive portion of which reads as follows:

WHEREFORE, judgment is rendered in

favor of Juan De la Cruz. SULU
Corporation is hereby ordered to
reinstate Juan De la Cruz with full
backwages. Costs ordered against the
respondent SULU.

3. That SULU Corporation appealed to NLRC but the latter sustained the
decision of the Labor Arbiter. The dispositive portion of which reads
as follows:

WHEREFORE, the decision of the Labor

Arbiter is affirmed without modifications.

4. That a timely Motion for Reconsideration was filed before the NLRC
but was denied.

REASONS/ARGUMENTS RELIED ON FOR THE INSTANT

PETITION

1. The NLRC erred and gravely abused its discretion in a capricious,

whimsical arbitrary or despotic manner in the exercise of their
jurisdiction equivalent to lack of jurisdiction for SULU Corporation
validly carried out its retrenchment program, which effectively
severed the concerned employees’ employment with the company.
 For lack of factual and legal basis, the NLRC struck down its decision
against the Corporation.

2. The NLRC acted with or in excess of its jurisdiction when they

overstepped their authority in not appreciating the ground relied upon
in the arguments of the petition and the Motion For Reconsideration
of SULU Corporation.

PRAYER

WHEREFORE, premises considered, petitioner respectfully prays that

an order be issued reversing the NLRC decision denying the Motion for
Reconsideration of SULU Co.

Respectfully submitted this 13th day of March, 2020 at Davao City,

Philippines.

(Sgd.) Atty. Aven Sina B. Caubang

Counsel for Petitioner
Roll of Atty. No 718308
IBP No. 187308;
PTR No. 1806083A; 1/8/2020
MCLE No. 524162