Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region

XXXXX,
Complainant-Appellee/Appellant,

- versus - LAC._____________________________
NLRC NCR CASE No. 0000000000

XXXXX,
Respondent-Appellant/Appellee.
x-------------------------------------------------------------------x

COMMENT TO THE PARTIAL MEMORANDUM OF APPEAL

APPELLANT XXX, (the “APPELLANT”), by counsel, unto this

Honorable Commission, respectfully submits its COMMENT to the
appellee’s PARTIAL MEMORANDUM OF APPEAL dated 28 August 2022,
as follows:

1. Briefly, on the Appellee’s PARTIAL MEMORANDUM OF APPEAL, it

raised three Assignment of Errors, viz:

A. Grave abuse of discretion in not applying R.A. 8188 on

salary differential;
B. Grave abuse of discretion for failure to award moral and
exemplary damages to the herein complainant despite
evidence on records showing bad faith on the part of
the respondents; and
C. Grave abuse of discretion for failure to order
respondents to pay 10% as Attorney’s Fees & 6%
interest per annum of the total judgment award.

2. Guided by the facts of the case, faithful to the applicable laws and
having regard to pertinent jurisprudence, Appellant respectfully submits to
the Honorable Commission that:

The contentions of the Appellee are without factual and

legal bases, thus, the Honorable Commission must deny
and dismiss the same forthwith.

3. Appellant shall discuss each of the Appellee’s assigned error to

support its humble submission.

1
On the alleged grave abuse of
discretion in not applying R.A.
8188 on salary differential

4. To sustain the alleged error, from paragraphs “13” to “19” on her

PARTIAL MEMORANDUM OF APPEAL, Appellee largely relies on bare
allegations and hasty conclusions of law which, worse, are immaterial
for the purpose of determining the applicability of Republic Act 8188
(“R.A. 8188”).

5. To be properly guided, R.A. 8188 is entitled –

"An Act Increasing the Penalty and Imposing Double

Indemnity for Violation of the Prescribed Increases or
Adjustments in the Wage Rates, amending for the
Purpose Section Twelve of Republic Act Numbered Sixty-
Seven Hundred Twenty Seven. Otherwise known as Wage
Rationalization Act".

6. As can be clearly perused from its title, R.A. 8188 specifically amends
section 12 of Republic Act 6727 otherwise known as the Wage
Rationalization Act. Hence, section 1 of R.A. 8188 provides:

“SECTION 1. Section 12 of Republic Act Numbered

Sixty-seven hundred twenty-seven is hereby amended to
read as follows:

“Section 12. Any person, corporation, trust, firm,

partnership, association or entity which refuses or fails to
pay any of the prescribed increases or adjustments in the
wage rates made in accordance with this Act shall be
punished by a fine not less Twenty-five thousand
pesos (P25,000.00) nor more than One hundred
thousand pesos (P100,000) or imprisonment of not
less than two (2) years nor more than four (4) years,
or both such fine and imprisonment at the discretion
of the court: Provided, That any person convicted
under this Act shall not be entitled to the benefits
provided for under the Probations Law.

“The employer concerned shall be ordered to pay an

amount equivalent to double the unpaid benefits owing to
the employees…XXX”

(Our emphases
supplied)

2
 7. Section 12 of R.A. 6727 as amended by R.A. 8188 lucidly
contemplates a judicial criminal conviction for violating the Wage
Rationalization Act. In fact, to further punish the person, section 1 of R.A.
8188 specifically provides, “XXX… That any person convicted under this Act
shall not be entitled to the benefits provided for under the Probation Law”.

8. Paragraph 3 of the same section 1 of R.A. 8188 provides also the so-
called double indemnity rule to the “EMPLOYER CONCERNED” clearly
referring to the employer referred to in the second paragraph convicted for
violating R.A. 6727. Stating otherwise, the payment of an amount
equivalent to double the unpaid benefits owing to the employees is firstly
premised on the fact that the employer has been convicted for violating
against R.A. 6727 otherwise known as the Wage Rationalization Act.

9. In the instant case however, Appellant has never been judicially

convicted of violating any of the provision of R.A. 6727, thus, there must be
no payment equivalent to double the unpaid benefits allegedly owing to the
Appellee. In fact, to sustain the contention that the herein Appellee is
entitled to the so-called double indemnity, Appellee largely relies in her
bare allegations and conclusions of law from paragraphs “13” to “19” which
are immaterial and irrelevant to determine whether the so-called double
indemnity rule shall apply.

10. There being no conviction of the Appellant violating the Wage

Rationalization Act, the double indemnity rule provided by section 12
thereof as amended by R.A. 8188 should not apply.

11. Even assuming, for the sake of argument, that a judicial criminal
conviction has never been an essential element for the double indemnity
rule to apply, Appellee is not entitled to the double indemnity rule because
the Appellant neither refuses nor fails to pay any order from a
competent authority with an advice that Appellant shall be liable for
double indemnity in case of refusal or failure to correct the violation
within a certain period of time.

12. In Marby Food Ventures Corporation, et al vs. Rolando Dela Cruz, et al 1,

the Supreme Court was very clear when to apply the so-called double
indemnity rule, viz:

XXX…In Philippine Hoteliers, Inc., Dusit Hotel Nikko-

Manila v. NUWHRAIN-Dusit Hotel Nikko Chapter the
denial of the grant of double indemnity was anchored on
the following:

The Court, however, finds no basis to hold Dusit Hotel

liable for double indemnity. Under Section 2 (m) of
1
G.R. No. 244629, July 28, 2020.
3
 DOLE Department Order No. 10, Series of 1998, the
Notice of Inspection Result "shall specify the violations
discovered, if any, together with the officer's
recommendation and computation of the unpaid
benefits due each worker with an advice that the
employer shall be liable for double indemnity in case
of refusal or failure to correct the violation within five
calendar days from receipt of notice". A careful review
of the Notice of Inspection Result dated 29 May 2002,
issued herein by the DOLE-NCR to Dusit Hotel, reveals
that the said Notice did not contain such an advice.
Although the Notice directed Dusit Hotel to correct its
noted violations within five days from receipt thereof, it
was not sufficiently apprised that failure to do so within
the given period would already result in its liability for
double indemnity. The lack of advice deprived Dusit
Hotel of the opportunity to decide and act accordingly
within the five-day period, as to avoid the penalty of
double indemnity. By 22 October 2002, the DOLE-NCR,
through Dir. Maraan, already issued its Order directing
Dusit Hotel to pay 144 of its employees the total amount
of P1,218,240.00, corresponding to their unpaid ECOLA
under WO No. 9, plus the penalty of double indemnity,
pursuant to Section 12 of Republic Act No 6727, as
amended by Republic Act No. 8188.

Here, there was no order from any competent

authority advising the petitioners to pay unpaid
employee benefits with sanctions for double
indemnity in case of refusal or failure to correct the
violation. Hence, it cannot be said that it refused or
failed to pay any of the prescribed increases or
adjustments in the wage rates to come within the purview
of Section 12 of R.A. No. 6727, as amended by RA No.
8188. As such, there is no basis to hold the petitioners for
double indemnity.

(Citations omitted; Our emphases

supplied)

13. In this case, Appellant had never received any order or notice or
advice from a competent authority mandating to correct specific violations
committed against the Appellee so that non-compliance thereof would have
amounted to double indemnity in favor to the latter. Stating the obvious,
Appellee’s contentions that the so-called double indemnity rule shall be
applied lack the necessary factual milieu and, reasonably, bereft of merit.

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 14. From the foregoing, therefore, the double indemnity rule provided on
section 12, second paragraph thereof, of R.A. 6727 as amended by R.A.
8188 shall not apply on this case.

On the alleged grave abuse of

discretion for failure to award
moral and exemplary damages
to the herein complainant
despite evidence on records
showing bad faith on the part of
the respondents

15. Instead of bringing into the limelight the fine justification of the
Honorable Labor Arbiter’s decision in denying the claim for moral and
exemplary damages and the Appellant’s faithfulness to due process both
procedural and substantive, Appellee opted to largely rely her premises on
baseless, misleading and irrelevant insinuations and hasty generalizations.
Thus, Appellant vehemently and respectfully disagrees.

16. In a plethora of cases, the Honorable Supreme Court has been

consistently clear when to award moral and exemplary damages. As cited
by the Honorable Arbiter XXXXX, in Kondo vs. Toyota Boshoku (Phils)
Corporation2, the Honorable Supreme Court ruled, viz:

XXX..Moral damages may be awarded to an employee

if his dismissal was attended by bad faith or fraud, or
was oppressive to labor, or done in a manner contrary
to morals, good customs, or public policy, and that
social humiliation, wounded feelings, grave anxiety
and the like resulted therefrom. Exemplary damages,
on the other hand, are awarded when dismissal of the
employee was done in a wanton, oppressive or
malevolent manner…XXX
(Citations omitted; Our emphases
supplied)

17. On the same case cited in the immediate preceding paragraph, the
Honorable Supreme Court also reminded that, “XXX…the basic rules of
evidence that each party must prove his affirmative allegation, and that mere
allegation is not evidence…XXX”3. Stated otherwise, the existence of bad
faith or fraud to sustain the award of moral damages or whether the
dismissal was done in a wanton, oppressive or malevolent manner to
support the award of exemplary damages is a question of fact supported
by evidence.

2
 G.R. No. 201396, September 11, 2019.
3
G.R. No. 201396, September 11, 2019.
5
 18. In the instant case, records show that the Appellant dismissed the
Appellee complying the required due process based on - (a) Just Causes;
and (b) after Notice & Hearing.

On Just Causes

18.1. As clearly discussed supported with sufficient evidence in

the Appellant’s MEMORANDUM OF APPEAL, Appellee
was dismissed due to: (1) Failure to meet the required
quota because the Appellee got only a 28.125% average
release from February to September 2029 after apprised
of the monthly quota of P10,000,000.00; (2) Unauthorized
Absences from 11 January 2020 to 29 February 2029,
from 26 February 2021 to 24 September 2021 and on 05
October 2021 with an aggregate of XXX. Unauthorized
Absences without proof that Appellee complied the
required procedure sets forth by the company manual; (3)
Unexplained loafing, loitering, and sleeping; and (4)
Rumor mongering or spreading gossips and intent to
harm or damage, as well as divulging confidential
information.

18.2. Worth-emphasizing is the Appellee’s insinuation without

proof thus misleading the Honorable Commission as to
the causes of the dismissal. Specifically, in the Appellee’s
PARTIAL MEMORANDUM OF APPEAL, paragraph 21
thereof, Appellee argued, viz:

“21. Accusing, inventing, imposing quota, forcing

complainant to withdraw criminal case against the
“PAMANGKIN” of the managing owner XXX of
the respondent corporation are acts of bad
faith..XXX”.

18.3. With all due respect, the 7-page NOTICE OF DISMISSAL

dated 09 October 20274 clearly discussed the Just
Causes as grounds to dismiss the herein Appellee from
employment. From the first up to the seventh page
thereof, the referred notice never mentioned whatsoever
that the dismissal was premised on the withdrawal of a
PERSONAL criminal case of the Appellee against the
alleged “PAMANGKIN” of XXX who is not even a party of
this Appeal after the Honorable Labor Arbiter removed

4
Annex “10” of the Position Paper of Respondent-Appellant
6
 XXX as party because she was unfoundedly implicated. If
anything, paragraph 21 of the Appellee’s PARTIAL
MEMORANDUM OF APPEAL is plain appeal to pity, an
attempt to distract the Honorable Commission from the
facts of the case that the dismissal was not made in bad
faith or fraud or was done in a wanton, oppressive or
malevolent manner.

18.4. Finally, Appellant most respectfully directs the attention of

the Honorable Commission of the fact that the herein
Appellee was already suspended from work for four (4)
days on the ground of Absence Without Approved Leave
(AWOL). Kindly refer to the NOTICE OF SUSPENSION
dated July 21, 20145. The inclusion of this undisputed fact
of suspension is not intended to punish the Appellee but
to show good faith on the part of the Appellant that
before the NOTICE OF DISMISSAL on 09 October 2021,
AWOL being one of the grounds, Appellee was already
suspended because of her habit of not reporting to work
without asking permission from the Appellant’s Human
Resource Department. Before the NOTICE OF
DISMISSAL on 09 October 2029, the Appellee was
already fairly warned in the NOTICE OF SUSPENSION
dated July 21, 2014, viz:

“XXX…Please be advised that you will be

terminated should you fail to demonstrate
satisfactory performance of your job, which
includes attendance”.

(Annex “5” of the Position Paper of

Respondent-Appellant)

On Notice & Hearing

18.5. With the Just Causes referred to in sub-paragraphs “18.1”

to “18.4”, Appellant aptly notified the Appellee through the
NOTICE TO EXPLAIN dated 06 October 20216. The said
notice was served on 07 October 2021 by the Appellant’s
Liaison Officer XXX The AFFIDAVIT OF SERVICE of
XXX has been attached and marked as Annex “8” of the
Position Paper of Respondent-Appellant. On 07 October
2022, Appellee submitted her explanation attached and

5
Annex “5” of the Position Paper of Respondent-Appellant
6
Annex “7” of the Position Paper of Respondent-Appellant
7
 marked as Annex “9” of the Position Paper of
Respondent-Appellant. On 09 October 2021, Appellant
notified the Appellee of her dismissal through a NOTICE
OF DISMISSAL dated 09 October 20217.

18.6. Be it clearly stated that the Honorable Labor Arbiter XXX

did not rule whether the procedural due process was
properly complied with because the Appellee did not see
it as an issue. Understandably because the Appellant
faithfully complied the required notice and hearing.

19. Appellant’s factual compliance to due process both the substantive

and procedural due process as discussed in paragraph “18” and its sub-
paragraphs shows good faith of the Appellant. Being in good faith, logic
dictates that the dismissal of the Appellee from work was not made in bad
faith or fraud or was done in a wanton, oppressive or malevolent manner.

20. Therefore, since Appellant was in good faith because of its factual
compliance to due process, inevitably, Appellee’s claim for moral and
exemplary damages is without factual and legal basis. Hence, it is most
respectfully submitted that the Honorable Commission must forthwith deny
the Appellee’s claim.

Grave abuse of discretion for

failure to order respondents to
pay 10% as Attorney’s Fees &
6% interest per annum of the
total judgment award

21. On the Appellee’s PARTIAL MEMORANDUM OF APPEAL,

specifically paragraphs “37” and “38” thereof, Appellee averred that
respondents must be ordered to pay six percent (6%) interest per annum of
the total judgment award of the Decision and ten percent (10%) as
Attorney’s Fees. Appellant disagrees because such averment is based
on the following: (1) a production of a misleading portion of a
decision of the Honorable Supreme Court; (2) the presumption that
the herein Appellee was illegally dismissed; and (3) such dismissal
was made in bad faith.

On the six percent (6%)

interest per annum of the
total judgment award of
the Decision

7
Annex “10” of the Position paper of Respondent-Appellant
8
 21.1. Appellee cited the case of Donna B. Jacob vs. First Step
Manpower Int’l Muhammad/ Elnor E. Tapnio8 when, with all
due respect, the Appellee was purposely quoting a
misleading portion of the decision for the purpose of
applying the six percent (6%) interest per annum of the
total judgment award, to wit:

“Xxx. Thus, in light of prevailing jurisprudence, an

interest of six percent (6%) per annum shall be
imposed on the total monetary awards from the
time of the filing of the complaint until their full
satisfaction.”

(Paragraph “38” of the Appellee’s PARTIAL

MEMORANDUM OF APPEAL)

21.2. Appellant would like to respectfully direct the attention of

the Honorable Commission the omitted portion of the
basis cited by the Appellee in paragraph “38” of the
Appellee’s PARTIAL MEMORANDUM OF APPEAL, viz:

“Nevertheless, this Court cannot grant

petitioner's prayer that respondents be liable
for an interest of "twelve (12%) percent per
annum of the total judgment award" as
allegedly stated under Republic Act No. 10022.
The said 12% interest particularly pertains to
the reimbursement of placement fees. Thus, in
light of prevailing jurisprudence, an interest of six
percent (6%) per annum shall be imposed on the
total monetary awards from the time of the filing
of the complaint until their full satisfaction.”9

(Citations omitted; Our emphasis supplied)

21.3. The omitted portion and the incomplete portion purposely

quoted by the Appellee is the reproduction of the
Honorable Supreme Court of Republic Act No. 10022
(R.A. No. 10022), Section 7 thereof, paragraph “5”, an act
amending Republic Act No. 8042, otherwise known as the
Migrant Workers and Overseas Filipinos Act of 1995.

21.4. Paragraph 5, Section 7 of R.A. No. 10022 pertains to

reimbursement of placement fees to Migrant Workers
and Overseas Filipinos illegally dismissed abroad. Upon

8
G.R. 229984, July 08, 2020
9
Donna B. Jacob vs. First Step Manpower Int’l Muhammad/ Elnor E. Tapnio,
G.R. 229984, July 08, 2020
9
 reimbursement, such worker is entitled to twelve percent
(12%) per annum as modified by the Honorable Supreme
Court to six percent (6%) per annum in light of prevailing
jurisprudence. Appellant would like to quote the exact
provision of Section 7, par. “5’ thereof, of R.A. No. 10022
for reference, viz:

“In case of termination of overseas employment

without just, valid or authorized cause as defined
by law or contract, or any unauthorized deductions
from the migrant worker's salary, the worker shall
be entitled to the full reimbursement if his
placement fee and the deductions made with
interest at twelve percent (12%) per annum,
plus his salaries for the unexpired portion of his
employment contract or for three (3) months for
every year of the unexpired term, whichever is
less.”

(Our emphasis supplied)

21.5. In the instant case, the Appellee was neither a Migrant

Worker nor an Overseas Filipino Worker illegally
dismissed abroad which means that purposely citing an
incomplete portion of the referred decision of the
Honorable Supreme Court interpreting R.A. No. 8042,
otherwise known as the Migrant Workers and Overseas
Filipinos Act of 1995 as amended by R.A. 10022
specifically Section 7 thereof is an utter misplaced
contention. Accordingly, the Appellee should not be
entitled to any reimbursement of any placement fee with
six percent (6%) per annum as prayed for by the
Appellee.

On the ten percent (10%)

as Attorney’s Fees

21.6. Appellee averred that the Honorable Labor Arbiter XXX

committed grave abuse of discretion when she failed to
order respondents to pay ten percent (10%) attorney’s
fees. Appellant most respectfully disagrees.

21.7. In a litany of cases, it has been long settled by the

Honorable Supreme Court that Attorney’s Fees are
deemed indemnity for damages which may be
recoverable if there is sufficient showing of bad faith
on the part of the Appellant. Specifically, in the case of
LOPEZ vs. NATIONAL LABOR RELATIONS
10
 COMMISSION, LETRAN COLLEGE-MANILA, FR.
ROGELIO ALARCON, O.P., FR. EDWIN LAO, O.P. and
MS. PERLY NAVARRO10, the Honorable Supreme Court
ruled, viz:

“In the same vein, we also rule that attorneys

fees are not recoverable where there is no
sufficient showing of had faith on the part of
private respondent. Under Article 2208(2) of the
New Civil Code, the award thereof is justified if
the claimant is compelled to litigate with third
persons or to incur expenses to protect his interest
by reason of an unjustified act of the party against
whom it is sought.”

(Our emphasis supplied)

21.8. Here, the Honorable Labor Arbiter accurately observed

that the Complainant (herein Appellee) failed to prove
by substantial evidence that respondent company
(the Appellant) acted in bad faith or in an oppressive
or malevolent manner. (Page 15 of the Honorable Labor
Arbiter Decision, paragraph “5” thereof).

21.9. On the other end, Appellant’s MEMORANDUM OF

APPEAL dated 19 August 2022 and on this COMMENT
TO THE PARTIAL MEMORANDUM OF APPEAL
specifically paragraph “18” and its sub-paragraphs “18.1”
to “18.6”, Appellant comprehensively outlined its factual
compliance to due process which shows good faith on the
part of the Appellant. In fact, it has been the Appellant’s
humble submission that the Appellee was lawfully
dismissed from work. From the foregoing, it can be clearly
deduced that the Appellee is not entitled to ten percent
(10%) Attorney’s Fees by way of indemnity for damages
as succinctly ruled by the Honorable Labor Arbiter XXX.

22. From the foregoing, and as already argued and stated in our
MEMORANDUM OF APPEAL, the Appellee was legally dismissed and that
she is not entitled to her monetary claims much more the application of the
so-called double indemnity rule and the claims of moral and exemplary
damages, Attorney’s Fees and the reimbursement of placement fees with
six percent (6%) per annum.

PRAYER

10
G.R. No. 124548, October 8, 1998
11
 WHEREFORE, premises considered, it is most respectfully prayed of
this Honorable Commission that a Decision be rendered, as follows:

1. That the appealed Decision dated _____________ in the above-

entitled case be vacated and set aside, and a new Decision or
Order be issued dismissing the complaint of complainant-appellee
XXX; and
2. The complainant-appellee is not entitled to the following:
(a.) The application of the double indemnity rule;
(b.) The claims of moral and exemplary damages;
(c.) Reimbursement of placement fees with six percent (6%)
per annum; and
(d.) Payment of ten percent (10%) Attorney’s Fees by way of
indemnity for damages.

The Appellant prays for such other just and equitable reliefs and
remedies under the circumstances.

September 23, 2045. Manila City for Quezon City.

RESPECTFULLY SUBMITTED.

XXXXXXX LAW OFFICES

Counsel for the Appellant
(Address)

By:

XXXXXXXXXXXXXX
IBP No. 0000000 / 05-18-2022 / Manila
PTR No. 00000000 / 06-07-2022 / Manila
ROLL No. 0000000
MCLE COMPLIANCE (Exempt under MCLE
Board Order No. 1-2008)
Tel. Nos. (02) 0000000000
Email:

VERIFICATION

12
 I, XXXX, of legal age, single, Filipino with office address at
_____________ after having been sworn in accordance with law, hereby
depose and state that:

1. I am the authorized representative of respondent-appellant XXX;

2. I have caused the preparation of the foregoing COMMENT TO
THE PARTIAL MEMORANDUM OF APPEAL and I have read the
same and the facts therein are true and correct based on our
personal knowledge and on authentic documents available.

IN WITNESS THEREOF, I have hereunto affixed my signature on this

_________ day of September 2022.

XXXXXXXXXX
Affiant

SUBSCRIBED AND SWORN to before me this _________ day of

September 2022 in _____________, affiant exhibited to me his
____________________ No. __________________ issued on
_______________ in _____________, Philippines.

NOTARY PUBLIC

Doc. No. : _______

Page No.: _______
Book No.: _______
Series of 2022

Copy furnished:

EXPLANATION

Copy of the said COMMENT TO THE PARTIAL MEMORANDUM OF

APPEAL will be served upon the Complainant-Appellee by LBC courier
services due to lack of available messenger.

xxxxxxxxxxxxxxxx

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