REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
____ Division
__________

________________________,
Petitioner

vs. CA-G.R. SP NO. ______

Petition for Certiorari
(Rule 65)
NATIONAL LABOR RELATIONS
COMMISSION and _______________
Respondents

x--------------------------------------------x

PETITION FOR CERTIORARI

COMES NOW, petitioner ________________ duly represented by

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

I. NATURE OF PETITION

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) First Division dated ____________ (Certified
True Copy of which is attached and referred as Annex “A” hereof) which
denied Motion for Reconsideration filed by the petitioner.

II. PARTIES

1. __________ is a duly-incorporated domestic corporation engaged in

retail business which started its operations in _________ in Sta.
_____________;

2. Private respondent, ____________ (___________ for brevity) was

employed by herein petitioner on ______________ as its operations
supervisor and promoted as operations assistant manager on
______________;

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 III. ARGUMENTS

1. After ______________ years in the business, ________ decided to

close down on ___________ its business operation on account of serious
business losses which occurred in ______________ totaling around
_______________;

2. ___________, consequently filed on _______________, a written

notice with the Department of Labor and Employment (DOLE) to let the
latter know of its intent to close and terminate its employees effective
________________, and it posted the notice of closure on the corporate
bulletin board;

3. Private respondent, filed a complaint for illegal dismissal with

separation pay, incentive leave pay, 13th month pay, holiday pay, vacation
leave and sick leave credits and 10% attorney fees in the sum of
________________ before the Labor Arbiter on __________, Certified True
Copy of which is herein attached as Annex “B”;

4. Private Respondent, in his complaint, alleged that:

a. He was illegally dismissed because he was not given prior notice

of his actual dismissal, as prescribed by law, there being no
written notice sent to him at least one (1) month before the
intended date of dismissal;

b. He approached the Human Resource (HR) Manager upon seeing

the notice of closure in the corporation bulletin board to verify his
dismissal, but the HR Manager merely told him that he had no
choice but to comply because the petitioner company suffered
huge financial losses;

c. He was not allowed to enter the premises of the company

_____________, the date of effectivity of his dismissal as stated in
the notice posted in the corporation bulletin board despite his
willingness to work for that day;

d. He tried to enter the premises to report for work on another

dates, but he was still not allowed to enter and the security guard
of the petitioner told him that it was pursuant to the instructions
of the management; and

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 e. Pursuant to the illegal dismissal of the petitioner, the private
respondent had no means to provide for the sustenance of his
family.

5. The Labor Arbiter, by Decision of ______________, Certified True

Copy of which is herein attached as Annex “C”, declared invalid
____________closure of business and ordered the latter to pay the
abovementioned claims of San Juan. The dispositive portion of the decision
reads:

“WHEREFORE, judgment is hereby rendered ordering

Respondent to pay complainants separation pay, incentive
leave pay, pro-rata 13th month pay, and vacation leave and sick
leave credits in the following computed amounts:
xxxx

Respondent is further ordered to pay complainants their tax

refund for ______ and to pay 10% attorney’s fees based on the
total withheld labor standard benefits.

SO ORDERED.”

6. On appeal, the NLRC upheld the decision of the Labor Arbiter

decision, Certified True Copy of which is herein attached as Annex “D” on
________________. The dispositive portion of the decision reads:

“WHEREFORE, judgment is hereby affirmed, the

petitioner having been illegally dismissed by the respondent,
the respondent is ordered to pay complainants separation pay,
incentive leave pay, pro-rata 13th month pay, and vacation
leave and sick leave credits in the following computed
amounts:
xxxx

Respondent is further ordered to pay complainants their tax

refund for ______ and to pay 10% attorney’s fees based on the
total withheld labor standard benefits.

SO ORDERED.”

7. JDS received a copy of the NLRC decision on _______________ and

filed its motion for reconsideration on __________________;

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 8. That the Motion for Reconsideration was denied by the NLRC in its
Resolution dated __________________, Certified True Copy of which is
herein attached as Annex “A”. The dispositive portion of the Resolution
reads:

“WHEREFORE, finding no merit on the Motion for

Reconsideration and is hereby denied.

SO ORDERED.”

9. That _______________, President of the petitioner company is filing

this present petition, as authorized by a Secretary Certificate issued in his
favor, which authorize him to file herein petition on behalf of the
petitioner, Original copy of which is herein attached as Annex “E”; and

10. That the Denial of the Motion for Reconsideration was received by
the petitioner only on ________________;

11.That with facts foregoing, the petition is therefore filed within the
sixty (60) day period as provided in section 4, Rule 65 of the Rules of Court
from the date of denial.

IV. GROUNDS

The petition alleges the following errors committed by herein public

respondent NLRC:

1. The NLRC committed grave abuse of discretion amounting

to lack or excess of jurisdiction when it affirmed the ruling
of the Labor Arbiter that the private respondent was illegal
dismissed because of the failure of JDS to send a written
notice to the former; and

2. The NLRC committed grave abuse of discretion amounting

to lack or excess of jurisdiction when it affirmed the ruling
of the Labor Arbiter that the private respondent was
illegally dismissed and ordered the payment of money
claims of the private respondent

12. JDS submits that while it is true that pursuant to Article 283 of the
Labor Code, it is incumbent for the employers to send a written notice on
the workers one (1) month before the termination of the latter, JDS was
still able to do a substantial compliance therefor;

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 13. In the case of DAP Corporation v. Court of Appeals 1, the Supreme
Court explained the purpose of the written notice, viz:

“xxx The purpose of the written notice is to inform the

employees of the specific date of termination or closure of
business operations, and must be served upon them at least
one month before the date of effectivity to give them sufficient
time to make the necessary arrangements.”
JDS was able to attain this purpose in posting the notice of
closure of its business and termination of all employees on the
corporate bulletin boards because (1) the latter was able to see the
notice one month before the date of effectivity; (2) the notice and
several copies thereof were posted on all of the corporate bulletin
boards of the business premises, most of them located at the ingress
and egress; (3) JDS ordered all of the heads, supervisors and
managers of each department to accompany all of their subordinates
to one of the boards for them to see the post and thereafter, make
the subordinates individually sign a “Compliance Form” proving that
the they have seen and fully understand the posted notice; and (4)
there is a proof showing that one of the employees who signed the
“Compliance Form” is the private respondent. The “Compliance
Form” is hereto attached as "Annex F”.

14. During the proceedings before the Labor Arbiter and NLRC,
___________ was also able to present __________________ (__________
for brevity), the general manager of _______________ and sister of the
private respondent, and _____________ (___________ for brevity), also an
assistant operations manager, who testified the private respondent indeed,
had seen the notice;

15. That to buttress her point, __________ explained that on several

occasions, the private respondent asked the former to clarify on some
matters pertaining to the notice and even asked her to send a photograph
of the notice via Facebook Messenger. The photograph of the notice and
the screenshots of the Facebook Messenger conversation are hereto
attached as Annexes “G
and “H”;

1
G.R. No. 165811, December 14, 2005

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 16. That in the spirit of justice, such substantial compliance should be
considered;

17. Furthermore, ____________ submits that the __________ was

validly terminated because as provided in the case of Sangwoo Philippines,
Inc. v. Sangwoo Philippines, Inc. Employees Union-Olalia 2, closure of
business due to serious business losses is a valid ground for termination of
employment and non-payment of separation pay;
18. In the case of Cama v. Jonis Food Services, Inc 3, the Supreme Court
declared:

“The Constitution, while affording full protection to labor,

nonetheless, recognizes the right of enterprises to reasonable
returns on investments, and to expansion and growth. In line
with this protection afforded to business by the fundamental
law, Article 283 of the Labor Code clearly makes a policy
distinction. It is only in instances of retrenchment to prevent
losses and in cases of closures or cessation of operations of
establishment or undertaking not due to serious business
losses or financial reverses that employees whose employment
has been terminated as a result are entitled to separation
pay. In other words, Article 283 of the Labor Code does not
obligate an employer to pay separation benefits when the
closure is due to serious losses. To require an employer to be
generous when it is no longer in a position to do so, in our
view, would be unduly oppressive, unjust, and unfair to the
employer. Ours is a system of laws, and the law in protecting
the rights of the working man, authorizes neither the
oppression nor the self-destruction of the employer. x x x
(Emphasis supplied)”

V. PRAYER

WHEREFORE, premises considered, it is respectfully

prayed that this Honorable Court to reverse the decision of
NLRC and its Resolution, to declare that the private respondent
was validly dismissed and properly notified of such dismissal.

2
G.R. No. 173154 and G.R. No. 173229, December 9, 2013
3
469 Phil. 223 (2004)

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 Such other relief and remedies deemed just and
equitable under the premises are likewise prayed for.

Manila City, Philippines, May 2, 2017

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

I, ________________, of legal age, after having been duly sworn in

accordance with law, hereby depose and state that:

1. I am the President of the petitioner in the above-entitled

case;

2. I caused the preparation and filing of the foregoing petition,

the contents/factual allegations of which are true and correct based
on my own personal knowledge and authentic records; and

3. No other action or proceeding involving the same issues

raised in the counterclaims above has been commenced and/or
pending with the Supreme Court, Court of Appeals or any Division
thereof, or any other tribunal or agency, and that to be best of my
knowledge, no such action or proceeding is pending in the Supreme
Court, Court of Appeals, different divisions thereof, or any other
tribunal or agency. If I should learn that a similar action of
proceeding has been filed or is pending in the Supreme Court, Court
of Appeals, or different divisions thereof, or any other tribunal or
agency, I shall notify or cause to notify this Honorable Court with five
(5) days from such notice.

___________________

SUBSCRIBED AND SWORN to before me this ____________________

in the City of ________________, affiant exhibiting to me his competent
evidence of his identity in the form of his Philippine Passport No.
______________ issued on ____________, issued at _____________.

Doc. No. ____;

Book No. ____;
Page No. ____;
Series of _____.