Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
SECOND DIVISION
Quezon City

SECOND DIVISION

JOEL TAPDASAN LIBARDO

JOSELITO REYES
MARK JOSEPH MERNILO
ALBERT ALFON
ELIZABETH MINGUITO
AIREEN MARQUESES
MORREL ARAOJO
MICHELLE CALIZA

Complainants,

-versus- NLRC LAC NO. 11-003964-

22
NLRC NCR CASE NO. 11-0496-
21

COCA-COLA BEVERAGES PHILS. INC

B-MIRK ENTERPRISES CORP., /

Respondents,

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

MOTION FOR RECONSIDERATION

RESPONDENT, B-MIRK Enterprises Corp, (B-Mirk for
brevity), unto this Honorable Commission, respectfully move for the
Reconsideration of the Honorable Commission’s Decision
promulgated on November 17, 2023, through the undersigned most
respectfully averred:

TIMELINESS OF THE FILING

The assailed decision dated November 17, 2023, was received

by the humble respondents on December 11, 2023. The
National Labor Relations Rules of Procedure Provides that
respondents are given ten (10) days within which to file a
Motion for Reconsideration. The filing of the instant Motion is
on December 21, 2023, is within the reglementary period of
filing said Motion. Hence, the filing of this Motion for
Reconsideration is filed within the 10-day reglementary period
from the receipt of the copy of the said Decision.

Rule VI of the 2011 National Labor Relations Rules of

Procedure as Amended

APPEALS

SECTION 15. MOTION FOR RECONSIDERATION -

“Motion for reconsideration of any decision, resolution, or

order of the Commission shall not be entertained except
when based on palpable or patent errors; provided that,
the motion is filed within ten (10) calendar days from
receipt of decision, resolution or order, with proof of
service that a copy of the same has been furnished,
within the reglementary period, the adverse party; and
provided further, that only one such motion from the
same party shall be entertained.”

1. On December 11, 2023, we received a copy of the Honorable

Commission’s Decision dated May 31, 2023, modifying the
decision of the Labor Arbiter dated July 29, 2022. To wit, the
Honorable Commission through its Presiding Commissioner
Grace E. Maniquiz Tan whereby modifying the decision of
the Honorable Labor Arbiter Jasper Z. Dela Cruz, dated
May 29, 2023, docketed as NLRC Case No. 08-00296-
22/08-00722-22.

THE DECISION SUBJECT OF RECONSIDERATION

The National Labor Relations Commission Fifth (5th) Division

promulgated a Decision through its Honorable presiding
Commissioner Grace E. Maniquiz-Tan on November 17, 2023,
the decretal portion of which reads:

“WHEREFORE, premises considered, the

complainants’ appeal is PARTIALLY GRANTED,
and the decision of Labor Arbiter Jasper Z. Dela
 Cruz is MODIFIED for non-perfection. The Decision
of Labor Arbiter Maki T. Datu-Ramos II, dated May
29, 2023, is AFFIRMED.

SO ORDERED.”1

DISCUSSIONS

THE HONORABLE COMMISSION COMMITTED ERROR OF

JUDGMENT IN RULING THAT COMPLAINANT JOEL
LIBARDO IS ILLEGALLY DISMISSED AND ORDERED HIM
REINSTATED WITH PAYMENT OF BACKWAGES

2. Going through the assailed decision of the National Labor

Relations Commission Fifth (5th) Division through its
presiding Commissioner Grace E. Maniquiz-Tan, it could be
surmised that the Honorable Commission equated its
decision with the July 29, 2022 decision of the Honorable
Labor Arbiter Jasper Z. Dela Cruz. In line with such, herein
respondents maintain its stand as well as its humble
contentions in its submitted and filed Position Paper and
Reply seeking for the annulment of the Decision of the
Honorable Commission for committing errors of judgment in
its ruling that herein respondents illegally dismissed the
complainant and awarding backwages.

3. Further, in the respondents Position Paper, B-Mirk

manifested and strongly reiterated that respondents did not
illegally dismiss the complainant. In fact, the humble
respondent would like to manifest that we issued a Notice to
Return to work and in the respondent’s traverse in its
submitted and filed appeal before the Honorable Commission.
The humble respondents sought for the mercy and
compassion of the Honorable Commission based on the
principle of equity and fairness to reconsider its decision
dated May 31,2023 to be given due course since the humble
respondents did not illegally dismiss the said complainant
and makes him not eligible for backwages in this case.

4. Meanwhile, on the aforementioned Position Paper the humble

respondents respectfully maintain its contention that it has
no intention to dismiss the complainant. As a matter of fact,
because of the complainant Joel Libardo’s imminent threats
to his co-workers as evidenced by their notarized statements,
he was first issued preventive suspension and subsequently
 terminated for violation of B-MIRK’s company rules and
regulations.

5. Accordingly, the respondents would humbly reiterate again

before this Honorable Commission to reconsider its decision
regarding backwages on the premise that the Honorable
Labor Arbiter has already found Libardo’s complaint to be
without basis on the ground that his dismissal was valid for
Just Cause of Serious Misconduct.

6. Regarding the issue on the Monetary award of backwages on

the part of the complainant Joel Libardo. The humble
respondents would like to make a point of emphasis that the
Honorable Commission did not address the issue that was
raised in the humble respondents Appeal specifically on the
arguments presented that herein complainants were not
illegally dismissed. Respondents likewise, properly asserted in
its Position Paper further refuting the allegations of the
complainants in their allegations of illegal dismissal.

7. With due respect with this Honorable Commission,

respondents would like to attest that it committed error of
judgment when it ordered the respondents to reinstate the
complainant. Also worth noting, the fact that the respondents
Appeal provided pertinent grounds as well as arguments
assiduously discussing the issue on the alleged illegal
dismissal by herein complainants which within was properly
assailed and refuted by herein respondents in its already filed
position paper and reply.

8. Accordingly, with regards to matters concerning the monetary

award, the humble respondent would like to further elucidate
that the same cannot be granted for the humble respondents
have already stated in its previous pleadings that the said
Monetary award is baseless and cannot be given due course.
Therefore, we strongly contest the monetary award set in the
decision.

9. Subsequently, the monetary award being baseless, the

complainant should also not be entitled to legal interest for to
fact that it is an accessory award that is an addition to the
principal award, the principal monetary award being baseless
the accessory award will be baseless as well as provided
under the principle that the accessory follows the principal.

10. Conversely, as already stated in our Position paper, the rule is

that one who alleges a fact has the burden of proving it. Aside
 from allegations, it rests upon the complainants to show that
respondents dismissed him from employment. It must be
stressed that the evidence to prove this fact must be clear,
positive, and convincing.

11. In view of the above stated arguments by the humble

respondents, can be considered as compliant with the
requirements set forth the Rule VI Section 6 of the NLRC
Rules of Civil Procedure as amended. Now, respondents had
been in quandary on the ruling of the Honorable Commission
in modifying and affirming the Labor Arbiter wherein there is
no legal basis to do the same.

12. Corollary, the humble respondent would also seek the

Honorable Court’s attention on the fact that the complainant
Joel Libardo committed a serious misconduct specially
threatening, intimidating, and instigating a fight during office
hours as already explained in our Reply. Thus, the
Commission erred in ruling that the penalty of Libardo is not
commensurate to his offense.

13. In view of the above, the Honorable Court erred in declaring

the return to work as well as backwages of the complainant
Joel Libardo when it was very clear that he was lawfully
terminated under Just Causes of the Labor Code. Moving on
to the issue of complainants Vanzuela, Jr., Sundiam,
Daraway, Enruiz, and Pajimula entitlement to their monetary
benefits, it must be stressed that complainants failed to prove
the fact of their dismissal, thus as a normal consequence of a
finding that complainants were not illegally dismissed and
consistent with the principle of a fair day’s wage for a fair
day’s labor, payment of separation pay and award of
backwages shall inevitably fail for lack of basis.

14. In the light of the above stated arguments, the humble

respondents again seek for the liberality and utmost
consideration with the guidance and wisdom of not less than
the Supreme Court in the case of Trans International vs.
Court of Appeals; National Power Corporation; Perla
Segovia and Gilberto Pastoral,10 quoting the pertinent
portion of the decision as follows:

“Verily, the respondent court's pronouncement cannot

be more emphatic in view of the instances wherein we
allowed the filing of an appeal in certain cases where
a narrow and stringent application of the rules would
have denied it. Indeed, the allowance thereof would
fully serve the demands of substantial justice in the
exercise of the Court's equity jurisdiction. Thus,
in Castro vs. Court of Appeals, and reiterated in the
case of Velasco vs. Gayapa, Jr., the Court stressed
the importance and objective of appeal, to wit:

An appeal is an essential part of our judicial system.

We have advised the courts to proceed with caution so
as not to deprive a party of the right to appeal
(National Waterworks and Sewerage Authority vs.
Municipality of Libmanan, 97 SCRA 138) and
instructed that every party litigant should be afforded
the amplest opportunity for the proper and just
disposition of his cause, freed from the constraints of
technicalities (A-One Feeds, Inc. vs. Court of Appeals,
100 SCRA 590).

The rules of procedure are not to be applied in a very

rigid and technical sense. The rules of procedure are
used only to help secure, not override substantial
justice. (Gregorio vs. Court of Appeals, 72 SCRA 120)
Therefore, we ruled in Republic vs. Court of Appeals
(83 SCRA 453) that a six-day delay in the perfection of
appeal does not warrant a dismissal. And again,
in Ramos vs. Bagasao, (96 SCRA 395), this Court
held that the delay of four (4) days in filing the notice
of appeal and a motion for extension of time to file a
record on appeal can be excused on the basis of
equity.

The emerging trend in the rulings of this Court is to

afford every party-litigant the amplest opportunity for
the proper and just determination of his cause, free
from the constraints of technicalities.

Time and again, we have consistently held that rules

must not be applied rigidly so as not to override
substantial justice. In Segunda Santiago
and Valerio Flores vs. Pablo Valenzuela and Moises
Pardo, the court ruled that:

The court may extend the time or allow the perfection

of the appeal beyond the prescribed period if it be
satisfactorily shown that there is justifiable reason,
such as fraud, accident, mistake or excusable
 negligence, or similar supervening casualty, without
fault of the appellant, which the court may deem
sufficient reason for relieving him from the
consequences of his failure to comply strictly with the
law. In such case the appeal is deemed taken and
perfected on time, and the appellate court acquires
appellate jurisdiction.”

15. Moreover, in the case of Wilfredo T. Mariano vs. GV Florida

Transport and/or Virgilio Florida Jr.,11 the Supreme
Court held:

“The Procedural flaws notwithstanding, especially

considering that this is a labor case, the ends of
substantial justice would be better served by relaxing
the application of technical rules of procedure.
Technicalities should not be permitted to stand in the
way of equitably and completely resolving the rights
and obligations of the parties. This Court reiterates
that where the ends of substantial justice would be
better served, the application of technical rules of
procedure may be relaxed.”

16. Finally, as we have already pointed out in our Position Paper,

the humble respondents would like to beseech and seek for
the kindness and liberality of this Honorable Commission for
the reconsideration of its decision dated May 31, 2023, and
give due course of our arguments in the interest of
substantial justice and grant us the opportunity to present
our defenses against the allegations made in the
complainants submitted position papers and pleadings in
relation to the present case.

PRAYER

Wherefore premises considered, it is most respectfully

prayed of this Honorable Commission to admit respondents
Motion for Reconsideration thereby reversing and setting
aside its decision dated May 31, 2023, declaring complainant
Joel Libardo as illegally dismissed, and directing respondent
B-MIRK Enterprises Corporation to reinstate him with
payment of backwages.
 Other reliefs and remedies which may be just and
equitable under the premises are likewise prayed for.

Antipolo City for San Fernando City, Pampanga,

December 4, 2023.

COPY FURNISHED

ATTY. JOSE ABRAHAM O. CALNEA

Mendoza Calnea Mangundayao &
Associates
Counsel for the Complainants
U-2310 Prestige Tower Condominium St., Cor. N. Roxas St.
Brgy. Lourdes, Quezon City
Tel. No. 8731-9782

COCA-COLA BEVERAGES PHILS, INC.

Co-Respondent
25th Floor Six Neo Bldg. 5th Avenue Corner
26th Bonifacio, Global City 1600

ATTY. DIGNO L. CAMACHO JR.

CKC LAW FIRM
Counsel for the Respondents
Unit 305, Pacific Center Bldg.,
San Miguel Ave., Ortigas Center,
Pasig City 1605

EXPLANATION

The undersigned hereby informs this Honorable Commission

that a copy of this Position paper was served personally to
the Honorable National Labor Relations Commission Second
(2nd) Division and to Atty Nenita C. Mahinay, counsel for the
complaints and Coca-Cola Beverages Philippines Inc. via
registered mail/private courier due to distance involved to
effect personal service.
 RAMON A. CASTRO
Representative of Respondents
No. 9 Pizarro St. Vista Verde Executive Village
Antipolo City