2011 NLRC Rules of Procedure Notes and Cases

LABOR RELATIONS 2011 NLRC RULES OF PROCEDURE RULE I TITLE AND CONSTRUCTION •

Liberally construed to carry out the objectives of the Constitution, the Labor Code of the Philippines and other relevant legislations, and to assist the parties in obtaining just, expeditious and inexpensive resolution and settlement of labor disputes (Section 2) RULE II DEFINITION OF TERMS

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Same definitions as Art. 212 of the Labor Code (Section 1)

Article 212. Definitions. (a) “Commission” means the National Labor Relations Commission or any of its divisions, as the case may be, as provided under this Code. (b) “Bureau” means the Bureau of Labor Relations and/or the Labor Relations Divisions in the regional offices established under PD No. 1, in the Department of Labor. (c) “Board” means the National Conciliation and Mediation Board established under EO No. 126. (d) “Council” means the Tripartite Voluntary Artibtration Advisory Council established under EO No. 126, as amended. (e) “Employer” includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer. (f) “Employee” includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless this Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment. (g) “Labor organization” means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. (h) “Legitimate labor organization” means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof. 1 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

(i) “Company union” means any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice by this Code. (j) “Bargaining representative” means a legitimate labor organization or any officer or agent of such organization whether or not employed by the employer. (k) “Unfair labor practice” means any unfair labor practice as expressly defined by this Code. (l) “Labor dispute” includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing, or arranging the terms and conditions of employment, regardless of whether the disputants stand in proximate relation of employer and employee. (m) “Managerial employee” is one who is vested with powers or prerogatives to lay down and execute management policies and/or hire, transfer, suspend, layoff, recall, discharge, assign, or discipline employees. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book. (n) “Voluntary Arbitrator” means any person accredited by the Board as such, or any person named or designated in the Collective Bargaining Agreement by the parties to act as their voluntary arbitrator, or one chosen, with or without the assistance of the National Conciliation and Mediation Board, pursuant to a selection procedure agreed upon in the Collective Bargaining Agreement, or any official that may be authorized by the Secretary of Labor and Employment to act as voluntary arbitrator upon the written request and agreement of the parties to a labor dispute. (o) “Strike” means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. (p) “Lockout” means the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. (q) “Internal union dispute” includes all disputes or grievances arising from any violation of or disagreement over any provision of the constitution and bylaws of a union, including any violation of the rights and conditions of union membership provided for in this Code. 2 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

(r) “Strike breaker” means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing by employees during any labor controversy affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining. (s) “Strike area” means the establishment, warehouses, depots, plants or offices, including the sites or premises used as runaway shops, of the employer struck against, as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment. •

Regional Arbitration Branch (RAB) – any of the regional arbitration branches or sub-regional branches of the Commission RULE III PLEADINGS, NOTICES, AND APPEARANCES

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Initiatory pleading: Complaint – should contain (Section 1a) o

Cause/Causes of Action

o Names and Addresses of ALL Complainants/Petitioners and Respondents o

Signed under Oath by Complainant/Petitioner

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Declaration of Non-Forum Shopping 

GENERAL RULE: Mandatory in initial pleading

 But not necessarily jurisdictional; SC has decided in some cases to let slide non-compliance with this rule “in the interest of justice”  Appeals: not necessary anymore, pursuant to the concept that an appeal is not an initiatory pleading  Forum Shopping: The practice of choosing the most favorable jurisdiction or court in which a claim might be heard. (Black’s Law Dictionary) The practice of choosing the court in which to bring an action from among those courts that could properly exercise jurisdiction based on a determination of which court is likely to provide the most favorable outcome. (Merriam-Webster’s Dictionary of Law) Exists when a party who obtains an unfavorable decision from one forum seeks a favorable decision from another forum. (Comm. Ortiguerra)

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MANDAUE GALLEON TRADE v. BIENVENIDO ISIDTO (GR 181057, 5 July 2010) Nachura Facts: Mandaue Galleon Trade was sued by its former employees for illegal dismissal before the LA. The LA decided in favor of the employees and ordered Mandaue Galleon Trade to pay the complainants the sum of P917,700.00. Mandaue Galleon Trade filed an appeal before the NLRC but failed to attach a certification of non-forum shopping to their notice of appeal, as required by Section 4, Rule VI of the 2005 NLRC Rules of Procedure. The NLRC dismissed Mandaue Galleon Trade’s appeal for being fatally defective, and the LA’s decision was affirmed in toto with finality. An entry of judgment was then issued by the NLRC, stating that its decision had already become final and executory. Mandaue Galleon Trade then filed a petition for certiorari before the CA. The CA dismissed the same. Mandaue Galleon Trade then filed another petition for certiorari before the SC, stating that the CA committed grave abuse of discretion in denying its appeal on mere technicality. Issue: W/N the CA committed a grave and reversible error in affirming the decision of the NLRC denying Mandaue Galleon Trade’s appeal on mere technicality despite the existence of a meritorious case. Ruling: NO. Based on Section 4(a), Rule VI of the [2005] NLRC Rules of Procedure, a certificate of non-forum shopping is a requisite for the perfection of an appeal, and non-compliance therewith shall not stop the running of the period for perfecting an appeal. The filing of a certificate of non-forum shopping is mandatory in initiatory pleadings. The subsequent compliance with the requirement does not excuse a party’s failure to comply therewith in the first instance. In those cases where the SC excused non-compliance with the requirement to submit a certificate of non-forum shopping pursuant to Administrative Circular No. 04-94, it found special circumstances or compelling reasons which made the strict application thereof clearly unjustified or inequitable. In this case, however, Mandaue Galleon Trade offered no valid justification for their failure to comply with the Circular. While it is true that litigation is not a game of mere technicalities and that rules of procedure shall not be strictly enforced at the cost of substantial justice, it does not mean that the Rules of Court may be ignored at will and at random to the prejudice of orderly presentation and assessment of the issues and their just resolution. It must be emphasized that procedural rules should not be belittled or dismissed simply because their non-observance might have resulted in prejudice to a party’s substantial rights. Like all rules, they are required to be followed, except only for the most persuasive of all reasons. Petition denied, CA decision affirmed. Notes and Doctrines: 4 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

It has been previously ruled that non-compliance with the required certification is fatal. The filing of the same is not waived by failing to immediately assert the defect, and neither is it cured by its belated submission on the ground that the party was not in any way guilty of actual forum shopping. Guidelines based on jurisprudential pronouncements respecting noncompliance with the requirements on, or submission of defective verification and certification against forum shopping: (1) A distinction must be made between non-compliance with the requirement on or submission of defective verification, and non-compliance with the requirement on or submission of defective certification against forum shopping. (2) As to verification, non-compliance therewith or a defect therein does not necessarily render the pleading fatally defective. The court may order its submission or correction or act on the pleading if the attending circumstances are such that strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby. (3) Verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct. (4) As to certification against forum shopping, non-compliance therewith or a defect therein, unlike in verification, is generally not curable by its subsequent submission or correction thereof, unless there is a need to relax the Rule on the ground of “substantial compliance” or presence of “special circumstances or compelling reasons.” Administrative Circular 28-91 (1994): Requires that every petition filed with the SC or the CA must be accompanied by a certificate of non-forum shopping Administrative Circular 04-94 (1994): Expanded the certification requirement to include cases filed in court and in quasi-judicial agencies; Ordains that a violation of the rule on non-forum shopping would constitute contempt of court and be a cause for the summary dismissal of the petition, without prejudice to the taking of appropriate action against the counsel of the party concerned FARLEY FULACHE v. ABS-CBN BROADCASTING CORPORATION (GR No. 183810, 21 January 2010) Brion Facts: Several persons filed separate complaints for regularization, unfair labor practice, and several money claims against ABS-CBN Cebu for being allegedly excluded from the CBA coverage because they were considered by the company as 5 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

temporary employees. ABS-CBN argued that they were only contractual employees who were paid “talent fees”, whose services are engaged for a specific program or production, or a segment thereof, and whose said contracts are terminated once the program, production, or segment is completed. The LA rendered its decision in favor of the complainants, holding that they were already regular employees of ABS-CBN, not independent contractors, and are entitled to the benefits and privileges of regular employees. ABS-CBN then appealed the case to the NLRC, still contending that the complainants were independent contractors and not regular employees. While the case was on appeal with the NLRC, ABS-CBN dismissed the complainants for their refusal to sign up contracts of employment with their service contractor. The dismissed complainants filed another complaint for illegal dismissal which was handled by the same LA who handled the previous regularization case. The LA upheld the validity of the dismissal of the complainants due to redundancy, an authorized cause under the law. The complainants were then awarded separation pay. ABS-CBN then appealed the illegal dismissal case to the NLRC, which rendered a joint decision on both the regularization and illegal dismissal cases. It affirmed the LA decision with respect to regularization, additionally granting the complainants CBA benefits and privileges, and reversed the LA with respect to the illegal dismissal case. Both ABS-CBN and complainants moved for reconsideration, and the NLRC resolved both motions for reconsideration by reinstating the two separate decisions of the LA with respect to regularization and illegal dismissal. The NLRC denied complainants’ second motion for reconsideration for being a prohibited pleading. The complainants then went to the CA through a petition for certiorari under Rule 65 of the Rules of Court. The CA upheld the NLRC decisions. Issue: W/N the dismissal of the complainants by ABS-CBN is tainted with bad faith. Ruling: YES. The termination of employment of the complainants occurred under highly questionable circumstances and with plain and unadulterated bad faith. The records show that the regularization case was in fact the root of the resulting bad faith as this case gave rise and led to the dismissal case. ABS-CBN apparently forgot that there was a standing LA decision that, while not yet final because of its own pending appeal, cannot simply be disregarded. By implementing the dismissal action at the time the LA’s ruling was under review, the company unilaterally negated the effects of the LA’s ruling while at the same time appealing the same ruling to the NLRC. This unilateral move is a direct affront to the NLRC’s authority and an abuse of the appeal process. A close parallel that can be drawn to characterize this bad faith is the prohibition against forum-shopping under the Rules of Court. In forum-shopping, the Rules characterize as bad faith the act of filing similar and repetitive actions for the same cause with the intent of somehow finding a favorable ruling in one of the 6 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

actions filed. ABS-CBN’s actions in the two cases are of the same character, since its obvious intent was to defeat and render useless, in a roundabout way and other than through the appeal it had taken, the LA’s decision in the regularization case. Forum-shopping is penalized by the dismissal of the actions involved. The penalty against ABS-CBN for its bad faith in the present case should be no less. Petition granted. •

No pleading shall be considered without proof of service to the opposing parties except if filed simultaneously during a schedule set before the Labor Arbiter (Section 3b)

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For purposes of appeal, the period shall be counted from receipt of such decisions, resolutions, or orders by the counsel or representative of record (Section 4b, par. 2)

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Return is a prima facie proof of the facts indicated therein; service by registered mail or by private courier is complete upon receipt by the addressee or his/her agent (Section 5)

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A non-lawyer may appear in any of the proceedings before the Labor Arbiter BUT ONLY UNDER THE FOLLOWING CONDITIONS (Section 6b) o

He/she represents himself/herself as party to the case (Section 6b(1));

o He/she represents a legitimate labor organization, as defined under Articles 212 and 242 of the Labor Code, as amended, which is a party to the case: Provided, that he/she presents to the Commission or Labor Arbiter during the mandatory conference or initial hearing: (i) A certification from the Bureau of Labor Relations or Regional Office of the Department of Labor and Employment attesting that the organization he/she represents is duly registered and listed in the roster of legitimate labor organizations; (ii) A verified certification issued by the secretary and attested to by the president of the said organization stating that he/she is authorized to represent the said organization in the said case; and (iii) A copy of the resolution of the board of directors of the said organization granting him such authority (Section 6b(2)); o He/she represents a member or members of a legitimate labor organization that is existing within the employer’s establishment, who are parties to the case: Provided, that he/she presents: (i) A verified certification attesting that he/she is authorized by such member or members to represent them in the case; and (ii) A verified certification issued by the secretary and attested to by the president of the said organization stating that the person or persons he/she is representing are 7 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

members of their organization, which is existing in the employer’s establishment (Section 6b(3)); o He/she is a duly-accredited member of any legal aid office recognized by the Department of Justice or Integrated Bar of the Philippines: Provided, that he/she (i) Presents proof of his/her accreditation; and (ii) Represents a party to the case (Section 6b(4)); o He/she is the owner or president of a corporation or establishment which is a party to the case: Provided, that he/she presents: (i) A verified certification attesting that he/she is authorized to represent said corporation or establishment; and (ii) A copy of the resolution of the board of directors of said corporation, or other similar resolution or instrument issued by said establishment, granting him/her such authority (Section 6b(5)). •

Counsel cannot, without special power of attorney or express consent, enter into a compromise agreement with the opposing party in full or partial discharge of a client’s claim (Section 7)

RULE IV VENUE, ASSIGNMENT AND DISPOSITION OF CASES AT THE REGIONAL ARBITRATION BRANCH •

Venue: RAB having jurisdiction over the workplace of complainant/petitioner (Section 1a) o Workplace: The place or locality where the employee is regularly assigned at the time the cause of action arose; shall include the place where the employee is supposed to report back after a temporary detail, assignment, or travel o Field Employees, Ambulant, or Itinerant Workers: Workplace is where they are regularly assigned, or where they are supposed to regularly receive their salaries and wages or work instructions from, and report the results of their assignment to, their employers

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When venue is not objected to before the filing of position papers, such issue shall be deemed waived (Section 1c)

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The venue of an action may be changed or transferred to a different RAB other than where the complaint was filed by written agreement of the parties or when the Commission or Labor Arbiter before whom the case is pending so orders, upon motion by the proper party in meritorious cases (Section 1d)

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Cases involving OFWs may be filed before the RAB having jurisdiction over the place where the complainant/petitioner resides or where the principal 8 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

office or any of the respondents is situated, at the option of the complainant/petitioner (Section 1e) •

Where there are two or more cases or complaints pending before different LAs in the same RAB involving the same employer and common principal causes of action, or the same parties with different causes of action, the subsequent cases or complaints shall be consolidated with the first to avoid unnecessary costs or delay (Section 3) o In case of objection to the consolidation, the same shall be resolved by the Executive Labor Arbiter. An order resolving a motion or objection to consolidation shall be inappealable. (Section 3, par. 2)

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When the Secretary of Labor and Employment has assumed jurisdiction over a strike or lockout or certified the same to the Commission, the parties to such dispute shall immediately inform the Secretary or the Commission, as the case may be, of all cases directly related to the dispute between them pending before any RAB, and the LA handling the same of such assumption or certification. The LA concerned shall forward within 2 days from notice the entire records of the case to the Commission or to the Secretary of Labor, as the case may be, for proper disposition. (Section 4, par. 2) RULE V PROCEEDINGS BEFORE LABOR ARBITERS

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Jurisdiction of LA: original and exclusive (Section 1; Article 217 of the Labor Code) o

Unfair labor practices (Section 1a; Article 217a(1))

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Termination disputes (Section 1b; Article 217a(2))  Companies with CBA – not exclusively under LA; shared jurisdiction between LA and VA  Constitutional bias in favor of voluntary arbitration – even if there have already been proceedings with the labor arbiter, the same can at anytime be transferred with the voluntary arbitrator

o If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work, and other terms and conditions of employment (Section 1c; Article 217a(3)) o Claims for actual, moral, exemplary, and other forms of damages arising from employer-employee relations (Section 1d; Article 217a(4))

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o Cases arising from any violation of Article 264 of the Labor Code, as amended, including questions involving the legality of strikes and lockouts (Section 1e; Article 217a(5)) o Except claims for employees compensation not included in the next succeeding paragraph, social security, medicare, and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding P5,000.00, whether or not accompanied with a claim for reinstatement (Section 1f; Article 217a(6)) o Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to Republic Act No. 6727 (Section 1g) 

If the wage distortion is caused by a CBA, it is not actionable

o Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to Article 227 of the Labor Code, as amended (Section 1h)  LA has no power to review, amend, or critique compromise agreements; they can only order enforcement o Money claims arising out of employer-employee relationship or by virtue of any law or contract, involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary, and other forms of damages as provided by Section 10 of RA 8042, as amended by RA 10022 (Section 1i) o

Other cases as may be provided by law (Section 1j)

DEPARTMENT ORDER NO. 107-10, Series of 2010: GUIDELINES ON THE SINGLE ENTRY APPROACH PRESCRIBING A 30-DAY MANDATORY CONCILIATION-MEDIATION SERVICES FOR ALL LABOR AND EMPLOYMENT CASES Single Entry Approach (SEnA)(Section 3a) – an administrative approach to provide a speedy, impartial, inexpensive, and accessible settlement procedure of all labor issues or conflicts to prevent them from ripening into full blown disputes; uses the conciliation-mediation process as immediate intervention to effect amicable settlement among differing parties Coverage (Section 2): Cases falling under the administrative and quasi-judicial functions of all DOLE offices and attached agencies including the NLRC except: 1) Notices of strikes and lockouts, or preventive mediation cases which shall remain with the National Conciliation and Mediation Board (NCMB); and 10 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

2) Issues arising from the interpretation or implementation of the collective bargaining agreement and those arising from interpretation or enforcement of company personnel policies which should be processed through the Grievance Machinery Single Entry Assistance Desk Officer (Section 3b) – person designated to provide assessment, evaluation, and counseling services before the filing of any labor complaint or dispute Who may file request for assistance (Section 4) – any aggrieved worker, union, group of workers, or the employer Where request for assistance may be filed (Section 5) – any SEAD in the region where the employer principally operates; in case of a union or federation representing a local chapter, the request shall be made at the regional/provincial/district office where the union or local chapter is registered Issues subject of the 30-day mandatory conciliation-mediation (Section 6): a) Termination or suspension of employment issues; b) Claims for any sum of money, regardless of amount; c) Intra-union and inter-union issues, after exhaustion of administrative remedies; d) Unfair labor practice; e) Closures, retrenchments, redundancies, temporary lay-offs; f) OFW cases; and g) Any other claims arising from employer-employee relationship Upon receipt of the complaint or request for conciliation-mediation services, the designated Desk Officer shall initiate a pre-conference assessment, evaluation, counseling, and conciliation-mediation services (Section 8) Conduct of conciliation-mediation (Section 9): In facilitating the conciliation meeting, the Desk Officer shall: a) Clarify the issues and narrow down the disagreements; b) Validate the positions and the relief sought; c) Encourage parties to generate options and enter into stipulations; d) Offer proposals and options toward mutually acceptable solutions and voluntary settlement. 11 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

Unless the parties agree otherwise, conciliation-mediation shall be carried out and terminated within the prescribed 30-day period. The parties are required to appear at all times. Lawyers may be allowed to join the conference only to render advice to parties. (Section 12, pars. 1 and 2) In case of voluntary settlement, the Desk Officer shall reduce the agreement into writing, have the parties understand the contents thereof, sign the same in his/her presence, and attest the document to be the true and voluntary act of the parties. Any settlement agreement reached by the parties before the Desk Officer shall be final and binding. (Section 10) In case of partial settlement and/or partial execution of certain issues, all unresolved issues shall be referred before the DOLE office or agency having jurisdiction over the dispute, without prejudice to amendments on the complaint by the parties. (Section 10, par. 2 in relation to Section 15) Failure of the complaining party to appear in two scheduled meetings shall also result in the issuance of a referral to the appropriate office or agency that has jurisdiction over the dispute. (Section 12, par. 3) In case of non-appearance of the employer or the party complained of despite due notice, the complaining party may request for the issuance of the referral or for a re-setting of the conciliation-mediation conference at any day within the 30-day period. (Section 12, par. 4) Any or both parties, within the 30-day period, may pre-terminate the proceedings and request referral to the appropriate office or agency which has jurisdiction over the dispute, or, if both parties so agree, refer the unresolved issues to voluntary arbitration. (Section 13) Referral (Section 3d) – the document issued by the Desk Officer referring the unresolved issue/s to the appropriate DOLE office or agency that has jurisdiction over the dispute. The Desk Officer shall monitor the voluntary and faithful compliance with the settlement agreement by causing the parties to make a report of compliance or non-compliance within two weeks from the date of agreement or agreed period of compliance. Failure of the parties to make a report within the prescribed period shall render the said agreement deemed duly complied with absent proof to the contrary. (Section 11, par. 1) In case of non-compliance by the other party, the agreement shall be endorsed by the Desk Officer to the NLRC for enforcement. (Section 11, par. 2) In case of failure to reach an agreement within the 30-day mandatory conciliation period, the Desk Officer shall issue a referral to the appropriate DOLE office or agency which has jurisdiction over the dispute, or if both parties so agree, refer the unresolved parties to voluntary arbitration. (Section 14) In instances provided in Sections 12 and 14, the issuance of the referral on the date of termination of the conciliation-mediation services shall be motu proprio; 12 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

otherwise, upon request of any or both parties to the proceedings. Failure of the Desk Officer to observe the period to issue the referral shall be dealt with accordingly as an administrative offense. (Section 16) Information and statements given in confidence at the conciliation-mediation proceedings shall be treated as privileged communication and shall not be used as evidence in any arbitration proceedings, except the stipulation of facts voluntarily entered into by the parties. The Desk Officer shall not be required to testify in any court or body regarding any confidential matter and information taken during the conciliation proceedings conducted by them. (Section 17) NOTES: SEnA does not take into account the original and exlusive jurisdiction of the different agencies. After the SEADO refers a case to the NLRC, the complainant still needs to accomplish a complaint to allow the NLRC to send out summonses, so that jurisdiction over the person of the party shall be acquired. Complainant need not be sent summons; NLRC acquires jurisdiction at the time of the filing of the complaint. Only the respondent/s need to be summoned. •

Cases arising from the interpretation or implementation of CBAs and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the LA by referring the same to the grievance machinery and voluntary arbitration, as may be provided in said agreements (Section 1, par. 2)

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MOST IMPORTANT CONDITION: existence of employer-employee relationship, with the exception of OFWs pursuant to RA 8042, as amended by RA 10022

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LA has no jurisdiction over intra-corporate controversies; RTC is the correct forum

RURAL BANK OF CORON v. ANNALISA CORTES (GR No. 164888, 6 December 2006) Carpio Morales Facts: Annalisa Cortes was hired as the Corporate Secretary and Personnel Officer of the Rural Bank of Coron, and a Personnel Officer of both Empire Cold Storage and Development Corporation, and Citizens Development Incorporated, firms which were practically financially controlled by her sister-in-law, Anita Cortes-Garcia. Upon inspection of the books of the said corporations where Annalisa was hired as a personnel officer, it was discovered that the latter was involved in several anomalies, prompting them to terminate her services from the corporations. Annalisa stated her willingness to abide by the decision regarding her termination but stressed her right to separation pay. When her demand went unheeded, she 13 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

filed a complaint for illegal dismissal and non-payment of salaries and other benefits. The petitioners moved for the dismissal of the complaint on the ground that it was an intra-corporate controversy involving the removal of a corporate officer. The LA found that Annalisa was not a corporate officer, and thus the case falls within the ambit of the jurisdiction of the LA. Issue: W/N Cortes is a corporate officer of the said corporations. Ruling: NO. While, indeed, Cortes was the Corporate Secretary of the Rural Bank of Coron, she was also its Financial Assistant and the Personnel Officer of the two other petitioner corporations. Jurisprudence instructs that a corporation can engage its corporate officers to perform services under a circumstance which would make them employees. The Labor Arbiter has thus jurisdiction over Cortes’ complaint. •

LA has NO INJUNCTIVE POWER

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Nature of proceedings: NON-LITIGIOUS (Section 2) o Subject to the requirements of due process, the technicalities of law and procedure and the rules obtaining in the courts of law shall not strictly apply thereto o The LA may avail himself or herself of all reasonable means to ascertain the facts of the controversy speedily, including ocular inspection and examination of well-informed persons

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Manner of service of summons (Section 4): o

Personally  By the bailiff or a duly authorized public officer within 3 days from his/her receipt thereof

o

Registered Mail 

Made by Philpost Corporation • Enjoys presumption of regularity in performance of official functions • For purposes of appeal: the date of mailing will be deemed as the date of filing

o

Private Courier 

Must be authorized by the Commission

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 Required to accomplish a special undertaking, and if the special courier does not comply with the said undertaking, they may be blacklisted  Does not enjoy the presumption of regularity in performance of official functions • For purposes of appeal: the date of actual receipt will be deemed as the date of filing •

Prohibited Pleadings and Motions (Section 5) o Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, improper venue, res judicata, prescription, and forum shopping (Section 5a)

Notes on Jurisdiction: When one says that the NLRC has no jurisdiction, what particular point is one focusing on? Lack of employer-employee relationship. Corporate disputes are cognizable by the regular courts. Personnel of international agencies—such as World Health Organization, International Labor Organization, International Catholic Migration Commission—are IMMUNE FROM SUIT. Why are employees of international agencies immune from suit not allowed by the Labor Code to pursue their claims before the labor tribunals? RESEARCH: POLITICAL LAW. Q: A complainant was dismissed by his employer. He does not challenge his dismissal. Instead, he claims non-payment of his 13th month pay in the amount of P3,500.00. Who has jurisdiction over his case? A: LA, because there is no more employer-employee relationship. The RD’s jurisdiction can only be invoked when there is employer-employee relationship. Q: Complainant filed a complaint for labor standards violations. Labor standards violation amounted to P1.5M. The complaint was prompted by a routine inspection conducted in the company. The RD issued a compliance order. Before the compliance order can be enforced, the employer-employee relationship was severed. So the management filed a motion to dismiss alleging that the RD has lost jurisdiction over the case inasmuch as there is a severance of employer-employee relationship. Is management correct? A:

NO. Once jurisdiction has attached, it cannot be lost. o

Motion for a bill of particulars (Section 5b)

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No violation of procedural due process

 Take note that we have the SEnA; should there be no settlement during the SEnA, there is a mandatory conference conducted by the LA —rules of procedure speaks of 2 mandatory conferences wherein there are stipulations of facts which are recorded, thus providing the respondent with all the details and specificity that he needs o

Motion for new trial (Section 5c)

Q: Respondent received a copy of the summons. Instead of appearing, the respondent indorsed the same to a lawyer. The lawyer did not appear. Consequently, an ex parte decision was rendered. Respondent filed a motion for new trial. If you were the LA, would you grant that motion? A: NO. A motion for new trial is clearly a prohibited pleading. Proceedings before the NLRC and before all labor tribunals are not bound by the strict rules of procedure and technicalities. o

Petition for relief from judgment (Section 5d)  However, may be considered as an appeal when all the requirements for the perfection of an appeal have been complied with

Q: A decision had already been rendered by the LA. The respondent filed a petition for relief from judgment on the ground that there was no summons issued to him. The records do not show that he had been given the opportunity to be heard; worse, there is no showing on record that jurisdiction over his person had been acquired. Is he correct? A: NO. If respondent really had not been served with summons, his recourse is to file a petition for extraordinary remedies (Rule XII), pray for the issuance of a temporary restraining order, or a permanent injunction, and in addition, pray for the remand of the case to the LA so that appropriate proceedings may be taken— particularly, service of proper summons may be done. But he has to post a bond of P50,000.00 and above, depending on the discretion of the Commission. o

Motion to declare respondent in default (Section 5e)

o Motion for reconsideration of any decision or any order of the Labor Arbiter (Section 5f) o Appeal from any interlocutory order of the Labor Arbiter, such as but not limited to, an order (Section 5g): 

Denying a motion to dismiss (Section 5g(1))

16 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW



Denying a motion to inhibit (Section 5g(2))

 Denying a motion for issuance of writ of execution (Section 5g(3)) 

Denying a motion to quash writ of execution (Section 5g(4)) • Interlocutory order: An order that relates to some intermediate matter in the case; any order other than a final order. (Black’s Law Dictionary) A decree that is made during the course of an action and that does not settle all matters in dispute. (Merriam-Webster’s Dictionary of Law)

o Appeal from the issuance of a certificate of finality of decision by the Labor Arbiter (Section 5h) o Appeal from orders issued by the Labor Arbiter in the course of execution proceedings (Section 5i)  Examples: Opposition to the Motion for Issuance of a Writ of Execution; Motion to Quash Writ of Execution; Motion to Recompute Judgment Award  If respondent is really aggrieved, resort to extraordinary remedies under Rule XII o Such other pleadings, motions and petitions of similar nature intended to circumvent above provisions (Section 5j) •

Before the date set for the mandatory conciliation and mediation conference, the respondent may file a motion to dismiss, which shall be immediately resolved by the LA through a written order. An order denying a motion to dismiss, or suspending its resolution until the final determination of the case, is not appealable. (Section 6) No motion to dismiss shall be allowed or entertained after the lapse of the period provided in Section 6. (Section 7)

•

Purpose of the mandatory conciliation and mediation conference: (Section 8a) o

Amicably settling the case upon a fair compromise (Section 8a(1));

o

Determining the real parties in interest (Section 8a(2));

o Determining the necessity of amending the complaint and including all causes of action (Section 8a(3)); o

Defining and simplifying the issues in the case (Section 8a(4));

17 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

o

Entering into admissions or stipulations of facts (Section 8a(5)); and

o

Threshing out all other preliminary matters (Section 8a(6))

•

Any agreement entered into by the parties whether in partial or full settlement of the dispute shall be reduced into writing and signed by the parties and their counsel or the parties’ authorized representatives, if any (Section 8b)

•

A compromise agreement duly entered into shall be final and binding upon the parties and shall have the force and effect of a judgment rendered by the LA (Section 8d)

•

The mandatory conciliation and mediation conference shall, except for justifiable grounds, be terminated within 30 calendar days from the date of the first conference (Section 8e)

•

No motion for postponement shall be entertained except on meritorious grounds and when filed at least 3 days before the scheduled hearing. (Section 8f)

•

If the parties fail to agree on an amicable settlement, either in whole or in part, during the mandatory conciliation and mediation conference, the LA shall proceed to the other purposes of the said conference (Section 9)

•

The non-appearance of the complainant or petitioner during the two settings for mandatory conciliation and mediation conference scheduled in the summons, despite due notice thereof, shall be a ground for the dismissal of the case without prejudice (Section 10, par. 1) o In case of two dismissals, the second dismissal shall be with prejudice already

•

In case of non-appearance by the respondent during the first scheduled conference, the second conference as scheduled in the summons shall proceed. If the respondent still fails to appear at the second conference despite being duly served with summons, he/she shall be considered to have waived his/her right to file position paper. The LA shall immediately terminate the mandatory conciliation and mediation conference and direct the complainant or petitioner to file a verified position paper and submit evidence in support of his/her causes of action and thereupon render his/her decision on the basis of the evidence on record. (Section 10, par. 2)

•

No amendment of the complaint or petition shall be allowed after the filing of position papers, unless with leave of the LA (Section 11b) 18 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

•

The position papers of the parties shall cover only those claims and causes of action stated in the complaint or amended complaint, accompanied by all supporting documents, including the affidavits of witnesses, which shall take the place of their direct testimony, excluding those that may have been amicably settled (Section 11c)

•

The reply shall not allege and/or prove facts and any cause or causes of action not referred to or included in the original or amended complaint or petition or raised in the position paper (Section 11d)

•

After the submission by the parties of their position paper or reply, as the case may be, the LA shall, motu proprio, determine whether there is a need for a hearing or clarificatory conference (Section 12)

•

The LA shall make a written summary of the proceedings of the clarificatory conference, including the substance of the evidence presented, in consultation with the parties. The written summary shall be signed by the parties and shall form part of the records. (Section 13b)

•

The hearing or clarificatory conference shall be terminated within 30 calendar days from the date of the initial clarificatory conference. (Section 14a) o In cases involving OFWs, the aggregate period for conducting the mandatory conciliation and mediation conference, including hearing on the merits or clarificatory conference, shall not exceed 60 days, which shall be reckoned from the date of acquisition of jurisdiction by the LA over the person of the respondents. (Section 14c)

•

In case of non-appearance of any of the parties during the hearing or clarificatory conference despite due notice, proceedings shall be conducted ex-parte. Thereafter, the case shall be deemed submitted for decision. (Section 14b)

•

Grounds for inhibition (Section 16) o Relationship within the fourth civil degree of consanguinity or affinity with the adverse party or counsel

•

o

Question of partiality

o

Other justifiable ground

Motion for inhibition shall be resolved within 5 days from the filing thereof. An order denying or granting a motion for inhibition is inappealable. (Section 16)

19 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

•

The LA shall render his/her decision within 30 calendar days, without extension, after the submission of the case by the parties for decision, even in the absence of stenographic notes. (Section 17) o Except: OFW cases, to be decided within 90 calendar days after the filing of the complaint

•

Contents of decisions (Section 18) o

Facts of the case

o

Issues involved

o

Applicable laws or rules

o

Conclusions and the reasons therefor

o

Specific remedy or relief granted

o

If monetary award, the amount awarded

o

If order of reinstatement, shall also contain:  and

Statement that reinstatement aspect is immediately executory;

 Directive for the employer to submit a report of compliance within 10 calendar days from receipt of the said decision •

If no appeal is filed with the Commission within the time provided under Article 223 of the Labor Code, and Section 1, Rule VI of these Rules, the decision or order of the LA shall become final and executory after 10 calendar days from receipt thereof by the counsel or authorized representative or the parties if not assisted by counsel or representative (Section 20)

Article 223. Appeal. – Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within 10 calendar days from receipt of such decisions, awards, or orders. Such appeal may be entertained only on any of the following grounds: (a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter; (b) If the decision, order, or award was secured through fraud or coercion, including graft and corruption; (c) If made purely on questions of law; and 20 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

(d) If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed therefrom. In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein. To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose reasonable penalty, including fines or censures, upon the erring parties. In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall file an answer not later than 10 calendar days from receipt thereof. The Commission shall decide all cases within 20 calendar days from receipt of the answer of the appellee. The decision of the Commission shall be final and executory after 10 calendar days from receipt thereof by the parties. Any law enforcement agency may be deputized by the Secretary of Labor and Employment or the Commission in the enforcement of decisions, awards, or orders. •

Certificate of finality (Section 19) – may be issued after 60 calendar days from date of mailing in the absence of return cards, certifications from the post office, or other proofs of service to the parties o

Execution can commence after the issuance of said certificate

•

A party may file a motion to revive or re-open a case dismissed without prejudice, within 10 calendar days from receipt of notice of the order dismissing the same; otherwise, the only remedy shall be to re-file the case. (Section 20)

•

A party declared to have waived his/her right to file position paper may, at any time after notice thereof and before the case is submitted for decision, 21 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

file a motion under oath to set aside the order of waiver upon proper showing that his/her failure to appear was due to justifiable and meritorious grounds. (Section 20) RULE VI APPEALS •

Decisions, awards, or orders of the LA shall be final and executory unless appealed to the Commission by any or both parties within 10 calendar days from receipt thereof (Section 1, par. 1)

•

In case of decisions or resolutions of the Regional Director of the DOLE pursuant to Article 129 of the Labor Code, within 5 calendar days from receipt thereof. (Section 1, par. 1)

•

If the 10th or 5th day, as the case may be, falls on a Saturday, Sunday, or holiday, the last day to perfect the appeal shall be the first working day following such Saturday, Sunday, or holiday. (Section 1, par. 1) o Date of mailing = Date of filing EXCEPT in the case of a special courier, where date of actual receipt is the date of filing

•

No motion or request for extension of the period within which to perfect an appeal shall be allowed. (Section 1, par. 2)

•

Grounds for appeal are the same grounds enumerated in Article 223 of the Labor Code (Section 2)

•

The appeal shall be filed with the RAB o Regional Office where the case was heard and decided (Section 3)

•

Requisites for perfection of appeal (Section 4a) o

Filed within the reglementary period (Section 4a(1));  Mandatory and jurisdictional, except “in the interest of truth and justice”, or “to serve the broader interest of justice”—make sure you can justify why you cannot have filed it within the reglementary period, but make sure you’re only late within 1-5 days, OR ELSE  Another justification: Proceedings before the labor tribunals are not bound by the strict rules of procedure and technicalities

o

Verified by the appellant himself/herself (Section 4a(2));

o In the form of a memorandum of appeal which shall state the grounds relied upon and the arguments in support thereof, the relief prayed for, 22 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

and with a statement of the date the appellant received the appealed decision, award, or order (Section 4a(3));  Not just an appeal but also an appeal memorandum together with the notice of appeal—some lawyers, if they don’t have time, only file a notice of appeal and an appeal memorandum that’s quite sketchy, and in the prayer portion, they pray for time to be allowed to file a supplemental appeal memorandum o

In three legibly typewritten or printed copies (Section 4a(4))

o

Accompanied by (Section 4a(5)):  Proof of payment of the required appeal fee and legal research fee (Section 4a(5i)); 

Posting of a cash or surety bond (Section 4a(5ii)); and • NOTE: The appellee has the obligation to verify whether the bond is regular or not (Section 6, par. 4) • Cannot be just an ordinary personal check; must be either manager’s check or cashier’s check

 •

Proof of service upon the other parties (Section 4a(5iii))

A mere notice of appeal without complying with the other requisites shall not stop the running of the period for perfecting an appeal (Section 4b) o

A motion to reduce bond does not toll the reglementary period

•

The appellee should file his answer or reply to appellant’s memorandum of appeal not later than 10 calendar days from receipt thereof. Failure to file the same on the said period may be construed as a waiver on his/her part to file the same. (Section 4c)

•

Once the appeal is perfected in accordance with these Rules, the Commission shall limit itself to reviewing and deciding only the specific issues that were elevated on appeal, subject to the provisions of Article 218 of the Labor Code. (Section 4d) o

•

Only those parties who have appealed can pray for affirmative relief

In case the decision of the LA or the RD involves a monetary award, an appeal by the employer may be perfected only upon the posting of a bond, which shall either be in the form of cash deposit or surety bond equivalent in 23 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

amount to the monetary award, exclusive of damages and attorney’s fees. (Section 6) •

Requirements for surety bond (Section 6) o Must be issued by a reputable bonding company duly accredited by the Commission or the Supreme Court o Must be accompanied by original or certified true copies of the following:  A joint declaration under oath by the employer, his/her counsel, and the bonding company, attesting that the bond posted is genuine, and shall be in effect until final disposition of the case (Section 6a);  An indemnity agreement between the employer-appellant and the bonding company (Section 6b);  Proof of security deposit or collateral securing the bond: Provided, that a check shall not be considered as an acceptable security (Section 6c);  A certificate of authority from the Insurance Commission (Section 6d);  Certificate of registration from the Securities and Exchange Commission (Section 6e);  Certificate of accreditation and authority from the Supreme Court (Section 6f); and  Notarized board resolution or secretary’s certificate from the bonding company showing its authorized signatories and their specimen signatures (Section 6g). • IMPORTANT NOTE: The Commission through the Chairman may on justifiable grounds blacklist a bonding company, notwithstanding its accreditation by the Supreme Court (Section 6, par. 2)

•

A cash or surety bond shall be valid and effective from the date of deposit or posting, until the case is finally decided, resolved, or terminated, or the award satisfied. This condition shall be deemed incorporated in the terms and conditions of the surety bond, and shall be binding on the appellants and the bonding company. (Section 6, par. 3)

24 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

•

No motion to reduce bond shall be entertained except on meritorious grounds, and only upon the posting of a bond in a reasonable amount in relation to the monetary award. (Section 6, par. 6)

•

The mere filing of a motion to reduce bond without complying with the requisites in the preceding paragraphs shall not stop the running of the period to perfect an appeal. (Section 6, par. 7)

RURAL BANK OF CORON v. CORTES, supra. Facts: The LA decided in favor of Cortes. On the last day of the period of appeal, petitioners filed a notice of appeal and motion for reduction of bond to which they attached a memorandum on appeal, stating that the corporations were under financial distress. They prayed that the amount of bond be substantially reduced, preferably to one-half thereof or even lower. The NLRC dismissed the appeal for failure to comply with the requirement of the filing of the appeal bond. The CA also dismissed the petition. Issue: W/N the filing of an appeal bond is a condition precedent for perfecting an appeal, and non-compliance thereof warrants dismissal. Ruling: YES. Contrary to petitioners’ assertion, the CA dismissed its petition not “on a mere technicality.” For the non-posting of a bond within the reglementary period divests the NLRC of its jurisdiction to entertain the appeal. Article 223 of the Labor Code, which prescribes the appeal bond requirement, is a rule of jurisdiction and not of procedure. There is a little leeway for condoning a liberal interpretation thereof, and certainly none premised on the ground that its requirements are mere technicalities. It bears emphasis that all that is required to perfect the appeal is the posting of a bond to ensure that the award is eventually paid should the appeal be dismissed. Petitioners should thus have posted a bond, even if it were only partial, but they did not. No relaxation of the Rule may thus be considered. In the case at bar, the petitioners did not post a full or partial bond within the prescribed period, thus, no appeal was perfected from the decision of the LA. For this reason, the decision sought to be appealed to the NLRC had become final and executory and therefore immutable. Clearly then, the NLRC has no authority to entertain the appeal, much less to reverse the decision of the LA. Any amendment or alteration made which substantially affects the final and executory judgment is null and void for lack of jurisdiction, including the entire proceeding held for that purpose. Petition is denied. •

Once an appeal is filed, the LA loses jurisdiction over the case, without prejudice to immediate reinstatement pending appeal under Section 6, Rule XI (Section 9) 25 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

o Instead of a certificate of finality, once an appeal is filed, the LA issues an entry of judgment o A motion for reconsideration is a prohibited pleading; it MAY be treated as an appeal by the LA provided that all the requisites for the filing of an appeal are present o Additionally, only the reinstatement order COMING FROM THE LABOR ARBITER is immediately executory; all the others are not, even those coming from the Commission •

No appeal from an interlocutory order shall be entertained. To discourage frivolous or dilatory appeals, including those taken from interlocutory orders, the Commission after hearing may censure or cite in contempt the erring parties and their counsels, or subject them to reasonable fine or penalty. (Section 10)

•

ADDITIONAL NOTES: o New evidence may be adduced on appeal, subject to the requirement that an explanation why it was not submitted seasonably and that the reason why it was not earlier available be given, otherwise it shall be treated as forgotten evidence o

Raising new issues on appeal is not allowed.

o The theory of appeal may be changed due to the ground of lack of jurisdiction, but only as an exception. The general rule is that the theory of appeal should not be changed on whatever ground. o Filing a motion for reconsideration before the NLRC is a prerequisite for the filing of a petition for certiorari before the CA—exhaustion of administrative remedies o

Appeal from Voluntary Arbitrator to Supreme Court by way of Rule 43 RULE VII PROCEEDINGS BEFORE THE COMMISSION

•

Jurisdiction of the NLRC: exclusive, original, and appellate jurisdiction in accordance with law (Section 1)

•

Powers of the NLRC o

APPELLATE (Article 217b)

o RULE-MAKING: To promulgate rules and regulations governing hearing and disposition of cases before it and its regional branches, as well as 26 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

those pertaining to its internal functions and such rules and regulations as may be necessary to carry out the purposes of this Code (Article 218a); o POWER TO ISSUE COMPULSORY PROCESSES: To administer oaths, summon the parties to a controversy, issue subpoenas requiring the attendance and testimony of witnesses or the production of such books, papers, contracts, records, statements of accounts, agreements, and others as may be material to a just determination of the matter under investigation, and to testify in any investigation or hearing conducted in pursuance of this Code (Article 218b); o POWER TO HEAR: To conduct investigation for the determination of a question, matter or controversy within its jurisdiction, proceed to hear and determine the disputes in the absence of any party thereto who has been summoned or served with notice to appear, adjourn its hearings to any time and place, refer technical matters or accounts to an expert and to accept his report as evidence after hearing of the parties upon due notice, direct parties to be joined in or excluded from the proceedings, correct, amend, or waive any error, defect, or irregularity, whether in substance or in form, give all such directions as it may deem necessary or expedient in the determination of the dispute before it, and dismiss any matter or refrain from hearing further or from determining the dispute or part thereof, where it is trivial or where further proceedings by the Chairman are not necessary or desirable (Article 218c);  The complaint is pro forma; complainant only required to check the boxes pertaining to complainant’s cause/s of action o CONTEMPT: To hold any person in contempt directly or indirectly and impose appropriate penalties therefor in accordance with law (Article 218d); o INJUNCTIVE: To enjoin or rerstrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party (Article 218e) o OCULAR INSPECTION: The Chairman, any Commissioner, Labor Arbiter, or their duly authorized representatives may at any time during working hours conduct an ocular inspection on any establishment, building, ship, or vessel, place or premises, including any work, material, implement, machinery, appliance or any object therein, and ask any employee, laborer or any person as the case may be for any information or data 27 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

concerning any matter or question relative to the object of the investigation (Article 219) •

Forum non conveniens: The doctrine that an appropriate forum—even though competent under the law—may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place (Black’s Law Dictionary); A doctrine allowing a court with jurisdiction over a case to dismiss it because the convenience of the parties and the interest of justice would be better served if the case were brought in a court having proper jurisdiction in another venue (Merriam-Webster’s Dictionary of Law)

MANILA HOTEL CORP. v. NLRC (GR No. 120077, 13 October 2000) Pardo Facts: Marcelo Santos was an overseas worker employed as a printer in Oman. He was subsequently directly hired by the Palace Hotel, Beijing, and later terminated due to retrenchment. Manila Hotel Corporation was a government-owned and controlled corporation, and an incorporator of Manila Hotel International Company, which, by virtue of a “management agreement” with the Palace Hotel, trained the personnel and staff of the Palace Hotel. Santos, after his repatriation to the Philippines, demanded full compensation pursuant to the employment agreement. This being denied, he filed a complaint for illegal dismissal against MHC, MHICL, the Palace Hotel, and Mr. Gerhard Shmidt, Palace Hotel’s General Manager. The Palace Hotel and Mr. Shmidt were not served with summons and neither participated in the proceedings before the LA. The LA decided in favor of Santos and ordered them to jointly and severally pay unearned salaries, moral and exemplary damages, and attorney’s fees. Aggrieved, MHC and MHICL appealed to the NLRC, which dismissed Santos’ complaint for want of jurisdiction. It directed Santos to file a case with the POEA instead. Santos moved for reconsideration on the ground that the case was not cognizable by the POEA because he was not an “overseas contract worker”. The NLRC then reversed itself and directed an LA to hear the case on the question of whether Santos was retrenched or dismissed. The LA subsequently found that Santos was illegally dismissed from employment and recommended that he be paid actual damages equivalent to his salaries for the unexpired term of his contract. MHC’s motion for reconsideration and appeal to the NLRC were denied. Issue: W/N the NLRC had jurisdiction over the case. Ruling: NO. The NLRC was a seriously inconvenient forum. The main aspects of the case transpired in two foreign jurisdictions and the case involves purely foreign elements. The only link that the Philippines has with the case is that Santos is a

28 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

Filipino citizen. The Palace Hotel and MHICL are foreign corporations. Not all cases involving our citizens can be tried here. It cannot be seen how the NLRC is a convenient forum given that all the incidents of the case—from the time of recruitment, to employment to dismissal occurred outside the Philippines. The inconvenience is propounded by the fact that the proper defendants, the Palace Hotel and MHICL, are not nationals of the Philippines. Neither are they “doing business in the Philippines.” Likewise, the main witnesses are not residents of the Philippines. Neither can an intelligent decision be made as to the law governing the employment contract as such was perfected in foreign soil. This calls to fore the application of the principle of lex loci contractus. Neither can the NLRC determine the facts surrounding the alleged illegal dismissal as all acts complained of took place in Beijing, China. The NLRC was not in a position to determine whether the Tiannanmen Square incident truly adversely affected operations of the Palace Hotel as to justify Santos’ retrenchment. Even assuming that a proper decision could be reached by the NLRC, such would not have a binding effect against the employer, the Palace Hotel. The Palace Hotel is a corporation incorporated under the laws of China and was not even served with summons. Jurisdiction over its person was not acquired. Even assuming that the NLRC was the proper forum, even on the merits, the NLRC’s decision cannot be sustained. Considering the NLRC was forum non conveniens and considering the fact that no employer-employee relationship existed between MHICL, MHC, and Santos, the LA clearly had no jurisdiction over Santos’ claim. In all cases involving LA’s exclusive and original jurisdiction, an employer-employee relationship is an indispensable jurisdictional requirement. Since the lack of jurisdiction of the LA was obvious from the allegations of the complaint, the LA’s failure to dismiss the case amounts to grave abuse of discretion. Petition granted. NLRC resolutions annulled. •

Under the rule of forum non conveniens, a Philippine court or agency may assume jurisdiction over the case if it chooses to do so provided: (1) that the Philippine court is one to which the parties may conveniently resort to; (2) that the Philippine court is in a position to make an intelligent decision as to the law and facts; and (3) that the Philippine court has or is likely to have power to enforce its decision.

PHILIPPINE NATIONAL BANK v. FLORENCE CABANSAG (GR No. 157010, 21 June 2005) Panganiban Facts: Florence Cabansag was directly hired by the Singapore branch of Philippine National Bank, a private banking corporation organized and existing under the laws of the Philippines. She then filed an application with the Ministry of Manpower of the 29 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

Government of Singapore for the issuance of an “Employment Pass” as an employee of the PNB Singapore Branch. Her application was approved for a period of two years. Ruben Tobias, the General Manager and Vice President of the Singapore branch, offered Cabansag a temporary appointment on 7 December 1998 as Credit Officer and, upon her successful completion of her three-month probation, she may be extended a permanent appointment. Cabansag accepted the position and assumed office. In the meantime, the Philippine Embassy in Singapore processed her employment contract and on 8 March 1999, she was issued by the POEA an “Overseas Employment Certificate” certifying that she was a bona fide contract worker for Singapore. On 14 April 1999, Cabansag was informed by Cecilia Aquino, the Assistant Vice President and Deputy General Manager of the Bank, as well as by Rosanna Sarmiento, the Chief Dealer of the said branch, that Tobias had asked them to tell her to resign from her job. Tobias confirmed the veracity of the information, explaining that her resignation was a cost-cutting measure, and that the PNB Singapore branch will be sold or transformed into a remittance office. He forced her to submit a resignation letter, to which she refused, asking time to find a new job. Tobias gave her an ultimatum that she should resign by 15 May 1999, but ultimately terminated her services by 20 April 1999. The LA rendered judgment in favor of Cabansag and ordered PNB to reinstate her, and to pay her full backwages, mid-year bonus, allowance for Sunday banking, monetary equivalent of leave credits earned, unused sick leave benefits, and unused vacation leave benefits, as well as 13th month pay. PNB was also ordered to pay Cabansag actual, moral, and exemplary damages, as well as attorney’s fees. The NLRC affirmed the LA decision, only reducing the award of moral and exemplary damages. The CA also rendered judgment in favor of Cabansag. Issue: W/N the arbitration of the NLRC in the National Capital Region is the most convenient venue or forum to hear or decide the instant controversy. Ruling: YES. Las have original and exclusive jurisdiction over claims arising from employer-employee relations, including termination disputes involving all workers, among whom are overseas Filipino workers. Cabansag was directly hired, while on a tourist status in Singapore, by the PNB branch in that city-state. Prior to employing Cabansag, PNB had to obtain an employment pass for her from the Singapore Ministry of Manpower. Securing the pass was a regulatory requirement pursuant to the immigration regulations of that country. Similarly, the Philippine government requires non-Filipinos working in the country to first obtain a local work permit in order to be legally employed here. The permit, however, does not automatically mean that the non-citizen is thereby bound by local laws only. It does not at all imply a waiver of one’s national laws on labor. Absent any clear and convincing evidence to the contrary, such permit simply 30 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

means that its holder has a legal status as a worker in the issuing country. Noteworthy is the fact that Cabansag likewise applied for and secured an Overseas Employment Certificate from the POEA through the Philippine Embassy in Singapore, which declared her as a bona fide worker for Singapore. Under Philippine law, this document authorized her working status in a foreign country and entitled her to all benefits and processes under our statutes. Even assuming arguendo that she was considered at the start of her employment as a “direct hire” governed by and subject to the laws, common practices and customs prevailing in Singapore, she subsequently became a contract worker or an OFW who was covered by Philippine labor laws and policies upon certification by the POEA. At the time her employment was illegally terminated, she already possessed the POEA employment certificate. Moreover, PNB admits that it is a Philippine corporation doing business through a branch office in Singapore. Significantly, Cabansag’s employment by the Singapore branch office had to be approved by the president of the bank whose principal offices were in Manila. This circumstance militates against PNB’s contention that Cabansag was “locally hired” and totally “governed by and subject to the laws, common practices and customs” of Singapore, not of the Philippines. Instead, with more reason does this fact reinforce the presumption that Cabansag falls under the legal definition of “migrant worker,” in this case one deployed in Singapore. Hence, PNB cannot escape the application of Philippine laws or the jurisdiction of the NLRC and the labor arbiter. Petition denied. RULE VIII CERTIFIED CASES •

It is the declared policy of certification of labor disputes for compulsory arbitration to ensure and maintain industrial peace based on social justice and national interest by having a full, complete and immediate settlement or adjudication of all labor disputes between the parties, as well as issues that are relevant to or incidents of the certified issues (Section 1)

•

Certified labor disputes – cases certified to the Commission for compulsory arbitration under Article 263(g) of the Labor Code (Section 2)

•

Effects of Certification (Section 3) o Upon certification, the intended or impending strike or lockout is automatically enjoined, notwithstanding the filing of any motion for reconsideration of the certification order nor the non-resolution of any such motion which may have been duly submitted to the Office of the Secretary of Labor and Employment. If a work stoppage has already taken place at the time of the certification, all striking or locked out employees shall immediately return to work and the employer shall immediately 31 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout (Section 3a) o All cases between the same parties, except where the certification order specifies otherwise the issues submitted for arbitration which are already filed or may be filed, and are relevant to or are proper incidents of the certified case, shall be considered subsumed or absorbed by the certified case, and shall be decided by the appropriate Division of the Commission (Section 3b, par. 1) o Whenever a certified labor dispute involves a business entity with several workplaces located in different regions, the Division having territorial jurisdiction over the principal office of the company shall acquire jurisdiction to decide such labor dispute; unless the certification order provides otherwise (Section 3c) •

Effects of Defiance (Section 4): Non-compliance with the certification order of the Secretary of Labor and Employment shall be considered as an illegal act committed in the course of the strike or lockout, and shall authorize the Commission to enforce the same under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the lockingout employer of backwages, damages, and/or other affirmative relief, even criminal prosecution against the liable parties; the Commission may also seek the assistance of law enforcement agencies to ensure compliance and enforcement of its orders and resolutions

•

Procedure (Section 5) o When there is no need to conduct a clarificatory hearing, the Commission shall resolve all certified cases within 30 calendar days from receipt by the assigned Commissioner of the complete records, which shall include the position papers of the parties and the order of the Secretary of Labor and Employment denying the motion for reconsideration of the certification order, if any (Section 5a) o Where a clarificatory hearing is needed, the Commission shall, within five calendar days from receipt of the records, issue a notice to be served on the parties through the fastest means available, requiring them to appear and submit additional evidence, if any. All certified cases shall be resolved by the Commission within 60 calendar days from receipt of the complete records by the assigned Commissioner (Section 5b) o No motion for extension or postponement shall be entertained (Section 5c)

32 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

•

Upon issuance of the entry of judgment, the Commission, motu proprio or upon motion by the proper party, may cause the execution of the judgment in the certified case (Section 6) RULE IX CONTEMPT

•

Direct Contempt (Section 1) o

o

Who may issue: 

Chairman



Any Commissioner or Labor Arbiter

How issued: SUMMARILY

o Grounds: Committing any act of misbehavior in the presence of or so near the Chairman or any Commissioner or Labor Arbiter as to obstruct or interrupt the proceedings before the same, including: 

Disrespect toward said officials



Offensive acts toward others

 Refusal to be sworn or to answer as a witness or to subscribe to an affidavit or deposition when lawfully required to do so o

Punishment:  When committed against the Commission or any member thereof: •

Fine not exceeding P500.00 and/or

•

Imprisonment not exceeding five days When committed against any LA:



o

•

Fine not exceeding P100.00 and/or

•

Imprisonment not exceeding one day

Appeal:  From LA: to Commission within a period of five calendar days from notice of the judgment, and execution of said judgment shall be suspended pending resolution of the appeal upon the filing by said person of a bond on condition that he will abide by and perform the

33 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

judgment should the appeal be decided against him/her (Section 1, par. 2)  From Commission: immediately executory and inappealable (Section 1, par. 2) •

Indirect Contempt (Section 2) o

o

Who may issue: 

Commission



Any Labor Arbiter pursuant to Article 218(d) of the Labot Code

Grounds:  Misbehavior of any officer or employee in the performance of his/her official duties or in his/her official transaction (Section 2a);  Disobedience of, or resistance to, a lawful writ, order or decision (Section 2b);  Any abuse of, or any unlawful interference with the processes or proceedings not constituting direct contempt (Section 2c);  Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice (Section 2d);  Assuming to be an attorney or a representative of party without authority (Section 2e);

o

o



Failure to obey a subpoena duly served (Section 2f); or



Other grounds analogous to the foregoing (Section 2g)

Where charge to be filed (Section 2A) 

Against Commission or an Officer appointed by it: Commission;



Against LA: RAB subject to appeal to the Commission

How commenced (Section 2B):  Motu proprio by the Commission or any LA by an order or any other formal charge requiring the respondent to show cause why he/she should not be punished for contempt

34 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

 Other cases: Verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings in the Commission • If the contempt charge arose out of or is related to a principal action pending in the Commission or RAB, the petition for contempt shall allege that fact but said petition shall be consolidated, heard, and decided separately, unless the Commission or LA in its/his/her discretion, orders the consolidation of the contempt charge and the principal action for joint hearing and decision o Upon the date set for hearing, the Commission or LA shall proceed to investigate the charge and consider such comment, answer, defense, or testimony as the respondent may make or offer; failure to attend the scheduled hearing and to give a satisfactory explanation in writing to the Commission or the LA will result in the waiver of the respondent to be present during the hearing (Section 2C) o

Punishment (Section 2D):  Against the Commission or any member thereof: fine of P1,000.00 per day for every act of indirect contempt  Against any LA: fine of P500.00 per day for every act of indirect contempt • Each day of defiance of, or disobedience to, or non-enforcement of a final order, resolution, decision, ruling, injunction, or processes, shall constitute an indirect contempt of the Commission • If the contempt consists of the violation of an injunction or omission to do an act which is within the power of the respondent to perform, the respondent shall, in addition, be made liable for damages as a consequence thereof, which shall be measured by the extent of the loss or injury sustained by the aggrieved party by reason of the acts or omission of which the contempt is being prosecuted, and the costs of the proceedings, including payment of interest on damages  A writ of execution may be issued to enforce the decision imposing such fine and/or consequent damages as punishment (Section 2E)

LAND BANK OF THE PHILIPPINES v. SEVERINO LISTANA, SR. (GR No. 152611, 5 August 2003) Ynares-Santiago 35 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

Facts: Severino Listana is the owner of a parcel of land in Sorsogon. He voluntarily offered to sell the said land to the government, through the Department of Agrarian Reform under the Comprehensive Agrarian Reform Law. The DAR valued the property at an amount which was not acceptable to Listana, hence, the DAR Adjudication Board commenced summary administrative proceedings to determine the just compensation of the land. A writ of execution was then issued directing the manager of Land Bank to pay Listana the amount defined by DARAB as just compensation for Listana’s land. Subsequently, Listana filed a Motion for Contempt with the PARAD, alleging that Land Bank failed to comply with the writ of execution, and that such action constitutes contempt of the DARAB. The PARAD then issued an order granting the Motion for Contempt and subsequently ordered the issuance of an Alias Writ of Execution for the payment of the adjudged amount of just compensation to Listana. When it was not complied with, an arrest order against the Land Bank manager was issued. A preliminary injunction was prayed for by the Land Bank from the Sorsogon RTC, which was granted. On appeal, the CA nullified the order of the RTC. Issue: W/N the contempt order was validly issued against the Land Bank manager. Ruling: NO. There are only two ways a person can be charged with indirect contempt, namely, (1) through a verified petition; and (2) by order or formal charge initiated by the court motu proprio. In the case at bar, neither of these modes was adopted in charging the Land Bank manager with indirect contempt. Evidently, quasi-judicial agencies that have the power to cite persons in contempt pursuant to Rule 71 of the Rules of Court can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. These matters are still within the province of the RTCs. In the present case, the indirect contempt charge was filed, not with the RTC, but with the PARAD, and it was PARAD that cited the Land Bank manager with indirect contempt. Petition granted, CA decision reversed and set aside. NOTE: This rule does not apply anymore. The NLRC does not need to go to the RTC to issue indirect contempt orders, by virtue of the rule-making power of the Commission found in Article 218 of the Labor Code. RULE X INJUNCTION •

Ordinary labor disputes: a preliminary injunction or restraining order may be granted by the Commission when it is established on the basis of the sworn allegation in the petition that the acts complained of involving or arising from any labor dispute before the Commission, which, if not restrained or 36 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party (Section 1, par. 1) o Must be accompanied by a certification of non-forum shopping (Section 1, par. 2) o The writ of preliminary injunction or temporary restraining order shall become effective only upon posting of the required cash bond in the amount to be determined by the Commission to answer for any damage that may be suffered by the party enjoined, if it is finally determined that the petitioner is not entitled thereto (Section 1, par. 3) •

Strikes or lockouts (Section 2): a preliminary or permanent injunction may be granted by the Commission only after hearing the testimony of witnesses and with opportunity for cross-examination in support of the allegations of the complaint or petition made under oath, and testimony by way of opposition thereto, if offered, and only after a finding of fact by the Commission: o That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof (Section 2a) o That substantial and irreparable injury to petitioner’s property will follow (Section 2b) o That as to each item of relief to be granted, greater injury will be inflicted upon the petitioner by the denial of relief than will be inflicted upon respondents by the granting of relief (Section 2c) o

That petitioner has no adequate remedy at law (Section 2d)

o That the public officers charged with the duty to protect petitioner’s property are unable or unwilling to furnish adequate protection (Section 2e) •

Hearings shall be held after due and personal notice thereof has been served to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or committed charged with the duty to protect petitioner’s property (Section 3)

37 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

•

The Commission may delegate the reception of evidence to any of its Labor Arbiters, who shall conduct such hearings in such places as he/she may determine to be accessible to the parties and their witnesses (Section 4) o Submission of the LA’s report and recommendation shall be within 15 days from such delegation

•

An ocular inspection may be conducted by the Chairman, any Commissioner, LA, or their duly authorized representatives, at any time during working hours, on any establishment, building, ship or vessel, place or premises, including any work, material, implement, machinery, appliance, or any object therein, and ask any employee, laborer, or any person, as the case may be, for any information or data concerning any matter or question relative to the object of the petition, and the ocular inspection reports shall be submitted to the appropriate Division within 24 hours from the conduct thereof (Section 5)

•

Requisites of a Temporary Restraining Order: o Testimony under oath, or by affidavits of the petitioner’s witnesses alleging that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to petitioner’s property will be unavoidable (Section 6) o

Petitioner’s undertaking to answer for the damages (Section 7)

o Petitioner’s posting of a cash bond in the amount of P50,000.00 or such higher amount as may be determined by the Commission to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission (Section 7) •

A temporary restraining order shall be effective for no longer than 20 days reckoned from the posting of the cash bond required; during the said period, the parties shall be required to present evidence to substantiate their respective positions in the main petition (Section 8)

•

The order or resolution enjoining the performance of illegal acts shall be immediately executory in accordance with the terms thereof. In case of noncompliance, the Commission shall impose such sanctions, and shall issue such orders, as may be necessary to implement the said order or resolution, including the enlistment of law enforcement agencies having jurisdiction over the area for the purpose of enforcing the same (Section 9) 38 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

RULE XI EXECUTION PROCEEDINGS •

Execution upon finality of decision or order (Section 1): o A writ of execution may be issued motu proprio or on motion, upon a decision or order that has become final and executory. (Section 1a) 

Effectivity: 5 years

o If an appeal has been duly perfected and finally resolved by the Commission, a motion for execution may be filed before the Labor Arbiter, when the latter has possession of the case records or upon submission of certified true copies of the decisions or final order/s sought to be enforced including notice of decision or order and the entry of judgment, copy furnished the adverse party (Section 1b) o Final decisions CANNOT be disturbed: immutability of judgment doctrine  Finality of a decision is jurisdictional and it cannot be made to depend on the convenience of a party. 

Final decisions are immutable and unalterable.

 Judgment becomes final by operation of law and not by judicial declaration. • Exceptions: correction of clerical errors; harmonizing the body of the decision with the dispositive portion; existence of a supervening event as shown by substantial evidence; nunc pro tunc entries; motion for reconsideration ad cautelam (with extreme caution) Judgment nunc pro tunc: A judgment entered on a day after the time when it should have been entered, as of the earlier date (Black’s Law Dictionary) MANDAUE DINGHOW DIMSUM HOUSE v. NLRC (GR No. 161134, 3 March 2008) Nachura Facts: Mandaue Dinghow Dimsum House, a restaurant in Mandaue City, closed down due to business losses. It filed a Notice of Retrenchment with the DOLE. Several employees filed a case for illegal dismissal against Mandaue Dinghow and Henry Uytengsu, the President and former General Manager of the said restaurant, before the LA. The LA absolved Uytengsu from any liability, holding that he did not act in bad faith an in excess of his authority. However, the LA found Mandaue Dinghow liable and ordered it to pay the complainants their respective separation pay. 39 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

On appeal, the NLRC affirmed the LA decision with a few modifications. The NLRC subsequently issued an entry of judgment certifying that its decision had already become final and executory. A writ of execution was then issued by the LA. However, the complainants averred that the writ could not be executed as Mandaue Dinghow could no longer be found and had transferred elsewhere; that both Mandaue Dinghow and Uytengsu were impleaded as respondents, although in the NLRC decision, Uytengsu’s name was omitted; that Uytengsu is the President and majority stockholder of Mandaue Dinghow; and that it would be a mockery of justice if, despite the finality of the NLRC decision, the same could not be executed on a mere technicality. Invoking the doctrine of piercing the veil of corporate fiction, the complainants moved that the LA, in the exercise of his equity jurisdiction, issue an alias writ of execution directing the Sheriff to execute the judgment against Mandaue Dinghow and Uytengsu. The LA then issued an Order decreeing that a writ of execution be issued against the properties of the officers/stockholders of Mandaue Dinghow. On the basis of this Order, an Alias Writ of Execution was issued. Mandaue Dinghow and Uytengsu filed a motion to quash the writ of execution. When notices of garnishment were served on the banks, Uytengsu’s bank accounts were frozen. The LA then denied Uytengsu’s motion to quash the writ of execution. Uytengsu filed a motion for reconsideration, which was also denied on the ground that Uytengsu is jointly and severally liable with Mandaue Dinghow on the ground that he is the President/Chairman of Mandaue Dinghow and the latter is no longer existing. On appeal to the CA, the CA dismissed Uytengsu’s petition on the following grounds: (1) the petition failed to indicate the full names of all private respondents and their respective complete addresses; (2) the certificate of non-forum shopping attached to the petition was merely signed by Uytengsu without attaching the appropriate board resolution or secretary’s certificate showing his authority to file the said petition in behalf of Mandaue Dinghow; and (3) Mandaue Dinghow and Uytengsu failed to file a motion for reconsideration of the NLRC decision before going to the CA on certiorari without justifying the reasons for such failure. Uytengsu filed a motion for reconsideration claiming that the petition’s failure to indicate the full names of all private respondents and their respective addresses was not intentional but due merely to inadvertence. Uytengsu also manifested that he is the lone petitioner before the CA and that the petition did not include Mandaue Dinghow anymore as the decision against the latter had long become final and executory. Thus, Uytengsu claimed that direct resort to certiorari was justified because despite the finality of the decision holding Mandaue Dinghow solely liable and the writ of execution issued against the same, the LA in excess of his authority issued an Alias Writ of Execution making Uytengsu liable for the respondents’ claims, as a result of which Uytengsu’s bank accounts in different banks were garnished. Uytengsu prayed that technicalities be waived in order to serve the ends of justice. The CA denied the motion for reconsideration, holding that Uytengsu 40 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

failed to justify the non-filing of the required motion for reconsideration assailing the NLRC decision before resorting to certiorari. Issue 1: W/N the CA committed grave abuse of discretion and serious error in dismissing the petition for certiorari purely on technical grounds and in not giving due course to the same. Ruling: YES. A motion for reconsideration of an assailed decision is deemed a plain and adequate remedy expressly available under the law. The well-established rule is that a motion for reconsideration is an indispensable condition before an aggrieved party can resort to the special action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended. The purpose of such rule is to afford the erring court or agency an opportunity to rectify the error/s it may have committed without the intervention of a higher court. The requisite motion is not only an expeditious remedy of an aggrieved party but it also obviates an improvident and unnecessary recourse to appellate proceedings. Failure to file a motion for reconsideration with the NLRC before availing oneself of the special civil action for certiorari is a fatal infirmity. However, this rule is subject to certain recognized exceptions. The instant case falls within the recognized exceptions, namely, that the NLRC Order is a patent nullity considering that the LA and the NLRC were devoid of any jurisdiction to alter or modify the NLRC decision that had already attained finality. Issue 2: W/N the Alias Writ of Execution was validly issued despite the finality of the NLRC decision. Ruling: NO. The Order and Alias Writ of Execution issued by the LA are null and void for lack of jurisdiction and for altering the tenor of the NLRC decision which directed Mandaue Dinghow alone to pay the private respondents’ separation pay. The private respondents did not assail this ruling. Thus, the same became final and executory. Even granting that the NLRC committed a mistake in failing to indicate in the dispositive portion that Uytengsu was solidarily liable with Mandaue Dinghow, the correction—which is substantial—can no longer be allowed in this case because the judgment has already become final and executory. Petition granted. Alias writ of execution quashed. LA directed to implement the final and executory decision of the NLRC against all the assets of Mandaue Dinghow with utmost dispatch. Notes and Doctrines: Once a decision or order becomes final and executory, it is removed from the power or jurisdiction of the court which rendered it to further alter or amend it. It therefore becomes immutable and unalterable and any amendment or alteration which substantially affects a final and executory judgment is null and void for lack of jurisdiction, including the entire proceedings for that purpose. An order of 41 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

execution which varies the tenor of the judgment or exceeds the terms thereof is a nullity. •

Execution by motion or by independent action (Section 2): A decision or order may be executed on motion within five years from the date it becomes final and executory. After the lapse of such period, the judgment shall become dormant, and may only be enforced by an independent action before the RAB of origin and within a period of ten years from date of its finality. o

After five years, the remedy is revival of judgment

o In case of partial satisfaction of judgment during the lifetime of the writ, the LA shall motu proprio issue an updated writ reflecting the amount collected and the remaining balance (Section 6, par. 2) Article 224. Execution of decisions, orders, or awards. (a) The Secretary of Labor and Employment or any Regional Director, the Commission or any Labor Arbiter or Med-Arbiter, or the Voluntary Arbitrator or panel of voluntary arbitrators may, motu proprio or on a motion of any interested party, issue a writ of execution on a judgment within five years from the date it becomes final and executory, requiring a sheriff or a duly deputized officer to execute or enforce final decisions, orders or awards of the Secretary of Labor and Employment or Regional Director, the Commission, or the Labor Arbiter or Med-Arbiter or Voluntary Arbitrator or panel of voluntary arbitrators. In any case, it shall be the duty of the responsible officer to separately furnish immediately the counsels of record and the parties with copies of said decisions, orders or awards. Failure to comply with the duty prescribed herein shall subject such responsible officer to appropriate administrative sanctions. (b) The Secretary of Labor and Employment, and the Chairman of the Commission may designate special sheriffs and take any measure under existing laws to ensure compliance with their decisions, orders or awards and those of Labor Arbiters and Voluntary Arbitrators or panel of voluntary arbitrators, including the imposition of administrative fines which shall not be less than five hundred pesos nor more than one thousand pesos. •

The perfection of an appeal shall stay the execution of the decision of the Labor Arbiter except execution for reinstatement pending appeal (Section 3). o In case the decision includes an order of reinstatement, and the employer disobeys the directive to submit a compliance report or refuses to reinstate the dismissed employee, the LA shall immediately issue a writ of execution, even pending appeal, directing the employer to immediately reinstate the dismissed employee either physically or in the payroll, and 42 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

to pay the accrued salaries as a consequence of such non-reinstatement in the amount specified in the decision (Section 9, par. 1)  The Sheriff shall serve the writ of execution upon the employer or any other person required by law to obey the same. If he/she disobeys the writ, such employer or person may be cited for contempt in accordance with Rule IX (Section 9, par. 2) PIONEER TEXTURIZING CORP. v. NLRC (GR No. 118651, 16 October 1997) Francisco Facts: Lourdes de Jesus has been a reviser/trimmer of Pioneer Texturizing Corp. since 1980. As a reviser/trimmer, de Jesus based her assigned work on a paper note posted by Pioneer. The posted paper which contains the corresponding price for the work to be accomplished by a worker is identified by its P.O. Number. In 1992, she worked on P.O. No. 3853 by trimming the cloths’ ribs. She thereafter submitted tickets corresponding to the work done to her supervisor. Three days later, de Jesus received a memorandum from Pioneer’s personnel manager requiring her to explain why no disciplinary action should be taken against her for dishonesty and tampering of official records and documents with the intention of cheating as P.O. No. 3853 allegedly required no trimming. The memorandum also placed her under preventive suspension for 30 days. In her handwritten explanation, she maintained that she merely committed a mistake in trimming P.O. No. 3853 as it had the same style and design as P.O. No. 3824 which has an attached price list for trimming the ribs and admitted that she may have been negligent in presuming that the same work was to be done with P.O. 3853, but not for dishonesty or tampering. Pioneer nonetheless terminated her from employment and sent her a notice of termination upon expiry of her preventive suspension. De Jesus then filed a complaint for illegal dismissal against Pioneer. The LA noted that de Jesus was amply accorded procedural due process in her termination from service; however, after observing that de Jesus made some further trimming on P.O. No. 3853 and that her dismissal was not justified, the LA held Pioneer of illegal dismissal and ordered Pioneer to reinstate de Jesus to her former position with payment of full backwages. The NLRC ruled that de Jesus was negligent in presuming that the ribs of P.O. No. 3853 should likewise be trimmed for having the same style and design as P.O. No. 3824, thus Pioneer could not entirely be faulted for dismissing de Jesus. The NLRC declared that the status quo between the parties should be maintained and affirmed the LA’s order of reinstatement, but without backwages. The NLRC further directed Pioneer to pay de Jesus her back salaries from the date she filed her motion for execution up to the date of the promulgation of the decision. Pioneer filed a partial motion for reconsideration which the NLRC denied. Pioneer filed a petition to the SC, anchored substantially on the NLRC’s alleged error in holding that de Jesus is entitled to reinstatement and backwages, because it claims that de Jesus was not illegally dismissed in the first place. Pioneer also claims that an order for reinstatement is not self-executory and stresses that 43 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

there must be a writ of execution which may be issued by the NLRC or by the LA motu proprio or on motion of an interested party. It further maintains that even if a writ of execution was issued, a timely appeal coupled by the posting of an appropriate supersedeas bond, which it did in this case, effectively forestalled and stayed execution of the reinstatement order of the LA. Issue: W/N an order for reinstatement needs a writ of execution. Ruling: NO. Article 223 of the Labor Code expressly provides that “insofar as the reinstatement aspect is concerned, shall be immediately be executory, even pending appeal… The posting of a bond by the employer shall not stay the execution for reinstatement provided.” It must be construed to mean exactly what it says. In declaring that a reinstatement order is not self-executory and needs a writ of execution, the SC in a prior case adverted to the rule provided under Article 224. A closer examination, however, shows that the necessity for a writ of execution under Article 224 applies only to final and executory decisions which are not within the coverage of Article 223. Article 224 states that the need for a writ of execution applies only within five years from the date of a decision, an order or award becomes final and executory. It cannot relate to an award or order of reinstatement still to be appealed or pending appeal which Article 223 contemplates. The provision of Article 223 is clear that an award for reinstatement shall be immediately executory even pending appeal and the posting of a bond by the employer shall not stay the execution for reinstatement. The legislative intent is quite obvious, i.e., to make n award of reinstatement immediately enforceable, even pending appeal. To require the application for and issuance of a writ of execution as prerequisites for the execution of a reinstatement award would certainly betray and run counter to the very object and intent of Article 223, i.e., the immediate execution of a reinstatement order. The reason is simple. An application for a writ of execution and its issuance could be delayed for numerous reasons. A mere continuance or postponement of a scheduled hearing, for instance, or inaction on the part of the LA or the NLRC could easily delay the issuance of the writ thereby setting at naught the strict mandate and noble purpose envisioned by the said Article. In other words, if the requirements of Article 224 were to govern, then the executory nature of a reinstatement order or award contemplated in Article 223 will be unduly circumscribed and rendered ineffectual. In enacting the law, the legislature is presumed to have ordained a valid and sensible law, one which operates no further than may be necessary to achieve its specific purpose. In ruling that an order or award for reinstatement does not require a writ of execution, the Court is simply adhering and giving meaning to the rule that all doubts in the interpretation and implementation of labor laws should be resolved in favor of labor. Henceforth, it is ruled that an award or order for reinstatement is self-executory. After receipt of the decision or resolution ordering the employee’s reinstatement, the employer has a right to choose whether to re-admit the 44 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

employee to work under the same terms and conditions prevailing prior to his dismissal or to reinstate the employee in the payroll. In either instance, the employer has to inform the employee of his choice. The notification is based on practical considerations for without notice, the employee has no way of knowing if he has to report for work or not. On appeal, however, the appellate tribunal concerned may enjoin or suspend the reinstatement order in the exercise of its sound discretion. Petition denied, LA decision is reinstated. AIR PHILIPPINE CORPORATION v. ENRICO ZAMORA (GR No. 148247, 7 August 2006) Austria-Martinez Facts: Zamora was employed with AirPhil as a B-737 Flight Deck Crew. He applied for promotion to the position of airplane captain and underwent the requisite training program. After completing training, he inquired about his promotion but AirPhil did not act on it; instead, it continued to give him assignments as flight deck crew. Zamora then filed a complaint with the LA for constructive dismissal, arguing that AirPhil’s act of withholding his promotion rendered his continued employment with it oppressive and unjust. AirPhil denied that it dismissed Zamora, and stated that when the complaint was filed, Zamora was still in its employ. It was only subsequently that Zamora stopped reporting for work, not because he was forced to resign, but because he had joined a rival airline, Grand Air. The LA held AirPhil liable for constructive dismissal and ordered it to reinstate Zamora as a B-737 captain without loss of seniority rights, and to pay full backwages, moral and exemplary damages, and attorney’s fees. Zamora immediately filed a motion for execution of the order of reinstatement, which the LA granted and issued a writ of execution. AirPhil, on the other hand, filed with the NLRC an appeal assailing the LA’s finding. The NLRC held that no dismissal, constructive or otherwise, took place for it was Zamora himself who voluntarily terminated his employment by not reporting for work and by joining a competitor. Upon motion for reconsideration, the NLRC ordered AirPhil to pay Zamora his unpaid salaries from the date AirPhil received the copy of the LA directing the reinstatement of Zamora, until the time the NLRC reversed the same. AirPhil moved for reconsideration, but it was denied. AirPhil then filed a petition for certiorari with the CA to have the NLRC’s resolution partially annulled. AirPhil attached to its petition certified true copies of the said resolutions and the prior decision of the LA, the notice of garnishment, the Order of the LA authorizing the sheriff to implement the writ of execution, and the NLRC resolution enjoining the implementation of the writ of execution. The CA dismissed the same for AirPhil’s failure to attach copies of all pleadings and other material portions of the record as would support the allegations therein. As such, 45 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

AirPhil filed a motion for reconsideration and attached to its pleadings and portions of the case record required by the CA, while Zamora filed an opposition to the said motion for reconsideration. The CA denied the motion for reconsideration on the ground that AirPhil failed to dispute Zamora’s opposition. Issue 1: W/N the NLRC committed grave abuse of discretion in holding AirPhil liable for unpaid salaries. Ruling: NO. The premise of the award of unpaid salary to Zamora is that prior to the reversal by the NLRC of the LA’s decision, the order of reinstatement embodied therein was already the subject of an alias writ of execution even pending appeal. Although AirPhil did not comply with this writ of execution, its intransigence made it liable nonetheless to the salaries of Zamora pending appeal. Issue 2: W/N the CA committed grave abuse of discretion when it dismissed AirPhil’s petition on the ground that it supposedly failed to attach copies of all pleadings and other materials as would support the allegations therein. Ruling: YES. It appears that the CA in this case was overzealous in its enforcement of the rules. To begin with, the pleadings and other documents it required of AirPhil were not at all relevant to the petition. It is noted that the only issue raised by AirPhil was whether the NLRC committed grave abuse of discretion in granting Zamora unpaid salaries while declaring him guilty of abandonment of employment. Certainly, copies of the resolutions of the NLRC would have sufficed as basis for the CA to resolve this issue. After all, it is in these resolutions that the NLRC purportedly made contrary findings. There was no need at all for copies of the position papers and other pleadings of the parties; these would have only cluttered the docket. Besides, a summary of the material allegations in the position papers can be found in the decision of the LA and the resolution of the NLRC. Quick reference to copies of the decision and resolution would have already satisfied any question the court may have had regarding the pleadings of the parties. The attachments of AirPhil to its petition for certiorari were already sufficient even without the pleadings and portions of the case record. It was therefore unreasonable of the CA to have dismissed it. More so that AirPhil later corrected the purported deficiency by submitting copies of the pleadings and other documents. Issue 3: W/N the CA committed grave abuse of discretion in denying AirPhil’s motion for reconsideration. Ruling: YES. In its resolution, the CA cited as basis for denying AirPhil’s motion for reconsideration the latter’s failure to contravene the opposition filed by Zamora. This is certainly a curious ground to deny a motion for reconsideration. As pointed out by AirPhil, a reply to an opposition to a motion for reconsideration is not filed as a matter of course. An order from the court may issue though to direct the movant to file a reply. In this case, no such order came from the CA instructing AirPhil to 46 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

counter the opposition filed by Zamora. Hence, it cannot be assumed that in failing to file a reply, AirPhil, in effect, conceded to Zamora’s opposition. Furthermore, it is not as if Zamora’s opposition required any answer. The matters discussed therein were not even germane to the issue raised in the motion for reconsideration. Petition granted. CA resolutions annulled and set aside; NLRC resolutions affirmed. Notes and Doctrines: Paragraph 2, Section 1 of Rule 65, and Section 3, Rule 46 of the Rules of Court speak of two sets of documents to be attached to the petition. The first set consists of certified true copies of the judgment, order, or resolution subject of the petition. Duplicate originals or certified true copies thereof must be appended to enable the reviewing court to determine whether the court, body or tribunal, which rendered the same committed grave abuse of discretion. The second set consists of the pleadings, portions of the case record and other documents which are material and pertinent to the petition. Mere photocopies thereof may be attached to the petition. As a general rule, a petition lacking copies of essential pleadings and portions of the case record may be dismissed. This rule, however, is not petrified. As the exact nature of the pleadings and parts of the case record which must accompany a petition is not specified, much discretion is left to the appellate court to determine the necessity for copies of pleadings and other documents. There are, however, guideposts it must follow: First, not all pleadings and parts of the case records are required to be attached to the petition. Only those which are relevant and pertinent must accompany it. The test of relevancy is whether the document in question will support the material allegations in the petition, whether said document in question will support the material allegations in the petition, whether said document will make out a prima facie case of grave abuse of discretion as to convince the court to give due course to the petition. Second, even if a document is relevant and pertinent to the petition, it need not be appended if it is shown that the contents thereof can also be found in another document already attached to the petition. Thus, if the material allegations in a position paper are summarized in a questioned judgment, it will suffice that only a certified true copy of the judgment is attached. Third, a petition lacking an essential pleading or part of the case record may still be given due course or reinstated (if earlier dismissed) upon showing that petitioner later submitted the documents required, or that it will serve the higher interest of justice that the case be decided on the merits. •

A petition for certiorari with the CA or the SC shall not stay the execution of the assailed decision unless a restraining order is issued by said courts (Section 4) 47 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

AM No. 07-7-12,4 December 2007: AMENDMENTS TO RULES 41, 45, 58, AND 65 0F THE RULES OF COURT RULE 65, Section 7. Expediting proceedings; injunctive relief. The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case. The public respondent shall proceed with the principal case within ten days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. o Where the executed judgment is totally or partially reversed or annulled by the CA or the SC, the LA shall, on motion, issue such orders of restitution of the executed award, except wages paid during reinstatement pending appeal (Section 14)  Purely monetary awards: IF reversed, LA is required to issue an order to restitute or to refund the same to the employer, except backwages as a consequence of reinstatement pending appeal o While there is a so-called “courtesy rule” (which probably states that execution should be stayed while the case is on appeal), it is no longer applicable Q: The decision of the LA contains a provision for reinstatement pending appeal. Complainant did not receive reinstatement wages; neither was he reinstated to his old position. Subsequently, the decision was reversed. Is complainant still entitled to the uncollected reinstatement wages? A: It depends. If the employer is at fault, the complainant is entitled to receive said uncollected reinstatement wages. Otherwise, he is no longer entitled to it. ALEJANDRO ROQUERO v. PHILIPPINE AIRLINES (GR No. 152329, 22 April 2003) Puno Facts: Alejandro Roquero and Rene Pabayo were ground equipment mechanics of Philippine Airlines. They were caught red-handed possessing and using shabu in a raid conducted by PAL security officers and NARCOM personnel. The two alleged that they did not voluntarily indulge in the said act but were instigated by a certain Jojie Alipato who was introduced to them by the Manager of PAL’s Airport Maintenance Division, who gave them the drugs immediately prior to the entrance 48 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

of the security and NARCOM personnel. Roquero and Pabayo were subjected to a physical examination where the results showed that they were positive of drugs. They were also brought to PAL’s security office where they executed written confessions without the benefit of counsel. Roquero and Pabayo subsequently received “notices of administrative charge” for violating the PAL Code of Discipline. They were required to answer the charges and were placed under preventive suspension. Roquero and Pabayo stuck to their story of being instigated by Alipato, who had no record of employment with PAL. PAL then dismissed the two employees through a Memorandum. They then filed a case for illegal dismissal. The LA upheld the dismissal of both employees, finding both parties at fault— PAL for applying means to entice both employees into committing the infraction and the two employees for giving in to the temptation and eventually indulging in the prohibited activity. Nonetheless, the LA awarded separation pay and attorney’s fees to the complainants. While the case was on appeal with the NLRC, the complainants were acquitted by the RTC in the criminal case which charged them with “conspiracy for possession and use of a regulated drug” on the ground of instigation. The NLRC ruled in favor of complainants as it likewise found PAL guilty of instigation. It ordered reinstatement to their former positions but without backwages. Complainants did not appeal from the decision but filed a motion for writ of execution of the order of reinstatement. The LA granted the motion but PAL refused to execute the said order on the ground that they have filed a petition for review with the SC. PAL’s petition was referred to the CA. Pabayo then entered into a compromise agreement and filed a motion to withdraw/dismiss the case with respect to himself. The CA later reversed the decision of the NLRC and reinstated the decision of the LA insofar as it upheld the dismissal of Roquero. However, it denied the award of separation pay and attorney’s fees to Roquero on the ground that one who has been validly dismissed is not entitled to those benefits. Issue 1: Can the executory nature of the decision, more so the reinstatement aspect of a labor tribunal’s order, be halted by a petition having been filed in higher courts without any restraining order or preliminary injunction having been ordered in the meantime? Ruling: NO. Article 223 of the Labor Code, as amended by Section 12 of RA 6715, provide that an order of reinstatement by the LA is immediately executory even pending appeal. Technicalities have no room in labor cases where the Rules of Court are applied only in a suppletory manner and only to effectuate the objectives of the Labor Code. Thus, even if the order of reinstatement of the LA is reversed on 49 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court. On the other hand, if the employee had been reinstated during the appeal period and such reinstatement order is reversed with finality, the employee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period. Issue 2: Would the employer who refused to reinstate an employee despite a writ duly issued be held liable to pay the salary of the subject employee from the time that he was ordered reinstated up to the time that the reversed decision was handed down? Ruling: YES. The unjustified refusal of the employer to reinstate a dismissed employee entitles him to payment of his salaries effective from the time the employer failed to reinstate him despite the issuance of a writ of execution. Unless there is a restraining order issued, it is ministerial upon the LA to implement the order of reinstatement. In the case at bar, no restraining order was granted. Thus, it was mandatory on PAL to actually reinstate Roquero or reinstate him in the payroll. Having failed to do so, PAL must pay Roquero the salary he is entitled to, as if he was reinstated, from the time of the decision of the NLRC until the finality of the decision of the SC. Dismissal of Roquero is affirmed, but PAL is ordered to pay the wages to which Roquero is entitled from the time the reinstatement order was issued until the finality of this decision. Notes and Doctrines: Serious misconduct is defined as “the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment.” For serious misconduct to warrant the dismissal of an employee, it (1) must be serious; (2) must relate to the performance of the employee’s duty; and (3) must show that the employee has become unfit to continue working for the employer. Instigation is only a defense against criminal liability. It cannot be used as a shield against dismissal from employment especially when the position involves the safety of human lives. JUANITO GARCIA & ALBERTO DUMAGO v. PHILIPPINE AIRLINES (GR No. 164856, 20 January 2009) Carpio Morales Facts: Juanito Garcia and Alberto Dumago were administratively charged by PAL after they were allegedly caught in the act of sniffing shabu when a team of company security personnel and law enforcers raided the PAL Technical Center’s Toolroom Section. After due notice, PAL dismissed the two for transgressing the PAL 50 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

Code of Discipline, prompting the latter to file a complaint for illegal damages. The LA ruled against PAL, ordering the same to immediately comply with the reinstatement aspect of the decision. Prior to the promulgation of the LA’s decision, the SEC placed PAL, which was suffering from severe financial losses, under an Interim Rehabilitation Receiver, who was subsequently replaced by a Permanent Rehabilitation Receiver. From the LA’s decision, PAL appealed to the NLRC. NLRC reversed the LA decision and dismissed Garcia and Dumago’s complaint for lack of merit. Their motion for reconsideration was denied and an entry of judgment was issued. The LA subsequently issued a writ of execution respecting the reinstatement aspect of his decision, and he subsequently issued a notice of garnishment. PAL moved to quash the writ and to lift the notice, while Garcia and Dumago moved to release the garnished amount. PAL also filed an urgent petition for injunction with the NLRC, which affirmed the validity of the writ and the notice issued by the LA but suspended and referred the action to the Rehabilitation Receiver for appropriate action. PAL then elevated the matter to the CA which nullified the NLRC decision on two grounds, essentially espousing that: (1) a subsequent finding of a valid dismissal removes the basis for implementing the reinstatement aspect of an LA’s decision; and (2) the impossibility to comply with the reinstatement order due to corporate rehabilitation provides a reasonable justification for the failure to exercise the options under Article 223 of the Labor Code. The SC then partially granted PAL’s petition and effectively reinstated the NLRC resolution insofar as it suspended the proceedings, their claims being money claims for wages. The SC then stated that the LA, the NLRC, as well as the CA should have abstained from resolving their case for illegal dismissal and should instead have directed them to lodge their claim before PAL’s receiver. When PAL’s rehabilitation proceedings were terminated, the SC resolved the remaining issue for consideration. Issue 1: W/N Garcia and Dumago may collect their wages during the period between the LA’s order of reinstatement pending appeal and the NLRC decision overturning that of the LA, now that PAL has exited from rehabilitation proceedings. Ruling: NO. The peculiar predicament of a corporate rehabilitation rendered it impossible for PAL to exercise its option under the circumstances. The legal effects arising from a judicial order placing a corporation under rehabilitation includes the effective deprivation of the corporation’s choices under Article 223 of the Labor Code, not only by virtue of the statutory injunction but also in view of the interim relinquishment of management control to give way to the full exercise of the powers of the rehabilitation receiver. Had there been no need to rehabilitate, PAL may have opted to physical reinstatement pending appeal to optimize the utilization of resources. Then again, though the management may think this wise, the rehabilitation receiver may decide otherwise, not to mention the subsistence of the injunction on claims. 51 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

In the case at bar, Garcia and Dumago exerted efforts to execute the LA’s order of reinstatement until they were able to secure a writ of execution, albeit issued after the reversal by the NLRC of the LA’s decision. Technically, there was still actual delay which brings to the question of whether the delay was due to PAL’s unjustified act or omission. It is apparent that there was inaction on the part of PAL to reinstate them, but whether such omission was justified depends on the onset of the exigency of corporate rehabilitation. It is settled that upon appointment by the SEC of a rehabilitation receiver, all actions for claims before any court, tribunal or board against the corporation shall ipso jure be suspended. During the pendency of Garcia and Dumago’s complaint before the LA, the SEC placed PAL under an Interim Rehabilitation Receiver. After the LA rendered his decision, the SEC replaced the Interim Rehabilitation Receiver with a Permanent Rehabilitation Receiver. Case law recognizes that unless there is a restraining order, the implementation of the order of reinstatement is ministerial and mandatory. The injunction or suspension of claims by legislative fiat partakes of the nature of a restraining order that constitutes a legal justification for PAL’s noncompliance with the reinstatement order. PAL’s failure to exercise the alternative options of actual reinstatement and payroll reinstatement was thus justified. Such being the case, PAL’s obligation to pay the salaries pending appeal, as the normal effect of the non-exercise of the options, did not attach. While reinstatement pending appeal aims to avert the continuing threat or danger to the survival or even the life of the dismissed employee and his family, it does not contemplate the period when the employer-corporation itself is similarly in a judicially monitored state of being resuscitated in order to survive. Petition partially denied. Notes and Doctrines: A dismissed employee whose case was favorably decided by the LA is entitled to receive wages pending appeal upon reinstatement, which is immediately executory. Unless there is a restraining order, it is ministerial upon the LA to implement the order of reinstatement and it is mandatory on the employer to comply therewith. The employer has to either re-admit the dismissed employee to work under the same terms and conditions prior to his dismissal, or to reinstate him in the payroll, during the period of appeal until reversal by the higher court. Failing to exercise the options in the alternative, the employer must pay the employee’s salaries. The social justice principles of labor law outweigh or render inapplicable the civil law doctrine of unjust enrichment. The new NLRC Rules of Procedure now require the employer to submit a report of compliance within 10 calendar days from receipt of the LA’s decision, 52 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

disobedience to which clearly denotes a refusal to reinstate. The employee need not file a motion for the issuance of the writ of execution since the LA shall thereafter motu proprio issue the writ. With the new rules in place, there is hardly any difficulty in determining the employer’s intransigence in immediately complying with the order. After the LA’s decision is reversed by a higher tribunal, the employee may be barred from collecting the accrued wages, if it is shown that the delay in enforcing the reinstatement pending appeal was without fault on the part of the employer. The test is two-fold: (1) There must be actual delay or the fact that the order of reinstatement pending appeal was not executed prior to its reversal; and (2) The delay must not be due to the employer’s unjustified act or omission. If the delay is due to the employer’s unjustified refusal, the employer may still be required to pay the salaries notwithstanding the reversal of the LA’s decision. The parallelism between a judicial order of corporation rehabilitation as a justification for the non-exercise of its options, on the one hand, and a claim of actual and imminent substantial losses as a ground for retrenchment, on the other hand, stops at the red line on the financial statements. Unlike the ground of substantial losses contemplated in a retrenchment case, the state of corporate rehabilitation is judicially predetermined by a competent court. •

The Commission or the LA may schedule a pre-execution conference to thresh out relevant to execution including the final computation of monetary award within two working days from receipt of a motion for the issuance of a writ of execution. The writ of execution shall be accompanied by a computation of a judgment award, if necessary. (Section 5, par. 1) o The pre-execution conference shall not exceed 15 calendar days from the initial schedule, unless the parties agree to an extension (Section 5, par. 1) o Any order issued by the LA in the pre-execution conference is not appealable, subject to the remedies available under Rule XII (Section 5, par. 2)

•

The writ of execution shall issue in the name of the Republic of the Philippines (Section 6)

•

Contents of the Writ of Execution (Section 6, par. 1): o

Signature of the Commission or Labor Arbiter

o Order of Commission or LA to the Sheriff to execute the decision, order, or award 53 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

o Complete name of the party, whether natural or juridical, against whom the writ of execution was issued o

Dispositive portion of the decision, order, or award to be enforced

o The amount, if any, to be demanded, and all legal fees to be collected from the losing party or any other person required by law to obey the same •

The Sheriff or other authorized officer acting as Sheriff of the Commission shall serve the writ within three days from receipt of the same (Section 7) o The Sheriff shall enforce a monetary judgment by demanding the immediate payment of the full amount stated in the writ of execution and all legal fees from the losing party or any other person required by law to obey the same (Section 8a)  In event of failure or refusal of the losing party to pay the judgment award, the Sheriff shall immediately proceed against the cash deposit or surety bond posted by the losing party, if any (Section 8b) • If the bonding company refuses to pay or the bank holding the cash deposit of the losing party refuses to release the garnished amount despite the order or pertinent processes issued by the LA or the Commission, the president or responsible officers or authorized representatives of the said bonding company or the bank who resisted or caused such non-compliance shall be either cited for contempt, or held liable for resistance and disobedience to a person in authority or the agents of such person as provided under the RPC; this rule shall likewise apply to any person or party who unlawfully resists or refuses to comply with the break open order issued by the LA or the Commission. A bonding company cited for contempt, or for an offense defined and punishable under the RPC shall be barred from transacting business with the Commission (Section 8c) • Should the cash deposit or surety bond be insufficient, or in case the surety bond cannot be proceeded against for any reason, the Sheriff shall, within five days from demand, execute the monetary judgment by garnishing bank deposits, credits, receivables, and other personal property not capable of manual delivery. If the same is not enough, proceed to levy the personal property of the losing party, and if still insufficient, against the real property not exempt from execution, sufficient to cover the judgment award, which may 54 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

be disposed of for value at a public auction to the highest bidder (Section 8d) – proceeds of execution shall be deposited with the Cashier of the concerned Division or RAB, or with an authorized depositary bank. Where payment is made in the form of a check the same shall be payable to the Commission (Section 8e) Levy: To impose or assess (a fine or a tax) by legal authority; To take or seize property in execution of a judgment (Black’s Law Dictionary); The seizure according to a writ of execution of real or personal property in a judgment debtor’s possession to satisfy a judgment debt (Merriam-Webster’s Dictionary of Law) Garnishment: A judicial proceeding in which a creditor (or potential creditor) asks the court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party (Black’s Law Dictionary); A remedial device used by a creditor to have property of the debtor or money owed to the debtor that is in the possession of a third party attached to pay the debt to the creditor (MerriamWebster’s Dictionary of Law) Judgment: A court’s final determination of the rights and obligations of the parties in a case. Includes an equitable decree and any order from which an appeal lies (Black’s Law Dictionary); A formal decision or determination on a matter or case by a court (Merriam-Webster’s Dictionary of Law) Property Exempt From Execution: 1. Present Property – Articles 152, 155, and 205 of the Family Code; Section 13, Rule 39 of the Rules of Court; Section 118 of CA 141 Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. Art. 155. The family home shall be exempt from execution, forced sale, or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. 55 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

Art. 205. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or execution. Rule 39, Section 13. Property exempt from execution. Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (a) The judgment obligor’s family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood; (c) Three horses, or three cows, or three carabaos, or other beasts of burden such as the judgment obligor may select necessarily used by him in his ordinary occupation; (d) His necessary clothing and articles for ordinary personal use, except jewelry; (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding P100,000.00; (f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding P300,000.00 in value; (h) One fishing boat and accessories not exceeding the total value of P100,000.00 owned by a fisherman and by the lawful use of which he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor or his personal services within the four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;

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(l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m)

Properties specially exempt by law.

But no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. 2. Future Property – Those related to the insolvency of a debtor 3. Property in custodial egis and of public dominion • If the property levied is claimed by any person other than the losing party, such person may file a third party claim not later than five days from the last day of posting or publication of the notice of execution sale, otherwise the claim shall be forever barred (Section 11a); the said claim shall be filed with the Commission or LA where the execution proceeding is pending, with proof of service of copies thereof to the Sheriff and the prevailing party (Section 11b); and shall automatically suspend the proceedings with respect to the execution of the properties subject of the said claim (Section 11c) o

Requisites of a third party claim (Section 11a): 1. An affidavit stating title to property or right to the possession thereof with supporting evidence; 2. Posting of a bond equivalent to the amount of the claim or judgment award, whichever is lower; and 3. Payment of the prevailing fee.

o Upon approval of the bond, the LA shall issue an order releasing the levied property or a part thereof subject of the claim unless the prevailing party posts a counterbond in an amount not less than the value of the levied property (Section 11c, par. 2); the LA may also require the posting of additional bond upon showing by the other party that the bond is insufficient (Section 11c, par. 3) o The propriety of the third party claims shall be resolved within ten working days from submission of the claim for resolution. The decision of the LA is not appealable but may be elevated to the Commission and resolved in accordance with Rule XII. Pending resolution thereof, execution shall proceed 57 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

against all other properties not subject of the third party claim. (Section 11d)  The issue NOT the resolution of ownership of the property (cognizable by the RTC), but the resolution of the propriety of the third party claim  For monetary judgment on cases involving OFWs, the manner of execution shall be in accordance with RA 10022 (Section 8f) o Immediately after full satisfaction of the judgment award, the writ of execution shall be returned to the Commission or LA. In case of partial or non-satisfaction of the judgment, the sheriff enforcing the writ shall submit a report updating the Commission or LA who issued the writ of execution on the status of the enforcement thereof, not later than 30 days from receipt of such writ and every 30 days thereafter during the lifetime of the writ unless fully satisfied (Section 12)  A copy of the report shall be furnished the Chairman and the Executive LA  Failure on the part of the Sheriff to submit the report or return required within the stated period shall subject him/her to administrative fine or suspension for 15 days without pay, or both (Section 12, par. 2) •

A motion to quash the writ of execution shall be resolved by the LA within 10 working days from submission of said motion for resolution. The mere filing of a motion to quash shall not stay execution proceedings (Section 10) RULE XII EXTRAORDINARY REMEDIES

•

A party aggrieved by any order or resolution of the LA including those issued during execution proceedings may file a verified petition to annul or modify such order or resolution. This petition may be accompanied by an application for the issuance of a temporary restraining order and/or writ of preliminary or permanent injunction to enjoin the LA, or any person acting under his/her authority, to desist from enforcing said resolution or order (Section 1) o Except by way of a petition filed in accordance with this Rule, no appeal from the order or resolution issued by the LA during the execution proceedings or in relation to incidents other than a decision or disposition of the case on the merits, shall be allowed or acted upon by the Commission (Section 15)

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o The LA shall be jointly impleaded with the private respondent as a public respondent in a nominal capacity. It shall be the duty of the private respondent to appear and defend, both in his/her behalf and that of the public respondent and the cost awarded in such proceedings in favor of the petitioner shall be against the private respondent only. The public respondent shall not appear or file an answer or comment to the petition or any pleading therein (Section 5) o The writ of preliminary injunction shall be effective for a nonextendible period of 60 calendar days from service on the private respondent (Section 10, par. 1)  Grounds for issuance of Preliminary Injunction (Section 3, Rule 58 of the Rules of Court).—A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance, or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency, or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. o If it shall appear from the facts shown by the verified application and affidavits that great and irreparable damage and/or injury would result to the petitioner before the petition can be resolved, the Commission may issue a temporary restraining order ex-parte effective for a non-extendible period of 20 calendar days from service on the private respondent (Section 10, par. 2) o In the issuance of a temporary restraining order or writ of preliminary injunction, the Commission shall require the posting of a cash bond in the amount of P50,000.00, or such higher amount as may be determined by the Commission, to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs. An additional cash bond may be 59 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

required by the Commission in the issuance of a writ of preliminary injunction. (Section 10, pars. 3 & 4)  The temporary restraining order or writ of preliminary injunction shall become effective only upon posting of the required cash bond (Section 11, par. 1)  The cash bond cannot anymore be reacquired unless a permanent injunction is issued •

Grounds for issuance (Section 2): o If there is prima facie evidence of abuse of discretion on the part of the LA (Section 2a) o If serious errors in the findings of facts are raised which, if not corrected, would cause grave or irreparable damage or injury to the petitioner (Section 2b) o If a party by fraud, accident, mistake, or excusable negligence has been prevented from taking an appeal (Section 2c)

•

o

If made purely on questions of law (Section 2d)

o

If the order or resolution will cause injustice if not rectified (Section 2e)

When filed: Not later than 10 calendar days from receipt of the order or resolution of the LA (Section 3) o If the last day to serve and file a pleading falls on a Saturday, Sunday, or holiday, the pleading shall be served and filed on the first working day immediately following such Saturday, Sunday, or holiday (Section 6, par. 2)

•

Where filed: Commission (Section 3) o The party filing the pleadings shall serve the other party with copies thereof in accordance with Rule 13 of the Rules of Court, furnishing the LA with a copy (Section 6, par. 1)

•

Requisites (Section 4): o Accompanied by a clear original or certified true copy of the order or resolution assailed, together with clear copies of documents relevant or related to the said order or resolution for the proper understanding of the issue/s involved (Section 4a) 60 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

o Contain the arbitral docket number and appeal docket number, if any (Section 4b) o State the material date showing the timeliness of the petition (Section 4c) o

Be verified by the petitioner himself/herself (Section 4d)

o Be in the form of a memorandum which shall state the ground/s relied upon, the arguments in support thereof, and the reliefs prayed for (Section 4e) o

Be in three legibly written or printed copies (Section 4f)

o Be accompanied by: (i) Certificate of non-forum shopping; (ii) Proof of service upon the other party/ies and the LA who issued the order or resolution being assailed or questioned; and (iii) Proof of payment of the required fees (Section 4g) •

Upon filing of the petition, the proceedings before the LA shall continue unless restrained. In case of execution, the proceedings in accordance with Rule XI of these Rules shall be suspended, but no money collected or credit garnished may be released or properties levied upon be sold by public auction within 15 calendar days from the filing of the petition. If no temporary restraining order or writ of preliminary injunction is issued within the said period, the money collected or credit garnished shall be released and/or the properties levied upon sold by public auction and the proceeds of the sale applied, to satisfy the judgment (Section 9, par. 1). The issuance of a temporary restraining order or a writ of preliminary injunction, unless otherwise declared by the Commission, shall not suspend the proceedings before the LA or stay the implementation of the writ of execution but shall only restrain or enjoin such particular act/s as therein decreed to be restrained or enjoined (Section 12) o In case of execution proceedings, the LA shall immediately inform in writing the Commission or the Division where the petition is pending of the satisfaction of the judgment, and, if circumstances warrant, the Commission shall dismiss the petition for being moot. (Section 9, par. 2) o The records of the case shall not be elevated to the Commission unless otherwise ordered (Section 9, par. 3)

•

Within 10 calendar days from the receipt of the petition, the private respondent shall file his/her answer therein stating the ground/s why the petition should be denied. Failure on the part of the private respondent to file 61 LABOR LAW REVIEW NOTES: 2011 NLRC RULES OF PROCEDURE MACAPAGAL, STEPHANIE LUZETTE M. BSU COLLEGE OF LAW

his/her answer within the said period may be construed as a waiver to file the same (Section 7) o In case the petitioner also prays for an injunctive relief, the private respondent may file his/her verified opposition or comment to the application for injunctive relief not later than five calendar days from receipt of a copy of the petition (Section 8) •

If the Commission finds that the allegations of the petition are true, it shall: a) render judgment for the relief prayed for or to which the petitioner is entitled, and/or b) grant a final injunction perpetually enjoining the LA or any person acting under his/her authority from the commission of the act/s or confirming the preliminary injunction. However, the Commission may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration (Section 13) o In the event that the application for a writ of preliminary injunction is denied or not resolved within the said period (15 calendar days), the temporary restraining order is deemed automatically vacated (Section 11, par. 2) o

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