Motion For Reconsideration Petition For Cancellation of The Certificate of Live Birth Lucila Esquivel Austria Natividad

 

REPUBLIC OF THE PHILIPPINES DEPARTMENT DEP ARTMENT OF LABOR AND EMPL EMPLOYMENT OYMENT  NATIONAL  NA TIONAL LABOR RELA RELATIONS TIONS COMMISSION NATIONAL CAPITAL REGION QUEZON CITY SPECIAL SECOND (2nd) DIVISION

EDUARDO V. REBAGAY,   Complainant-Appellee,

-versus-

NLRC NCR Case No. 11-16461-12 NLRC LAC NO. 11-16461-12

JEOSA TRANSPORT/ MR. DOMINGO PAGUYO,   Respondents-Appellees. x-------------------------------------------x

MOTION FOR RECONSIDERATION

COMPLAINANT COMPLAINA NT-APP -APPELLAN ELLANT, T,  by counsel, to this Honorable Comm Co mmis issi sion on,, mo most st re resp spec ectf tful ully ly mo move vess for for th thee re reco cons nsid ider erat atio ion n of th thee nd Decision of the Honorable Special Second (2 ) Division of the National Labor Relations Commission (NLRC) promulgated on 31 July 2014, a copy of which was received on 06 August 2014, and in support hereof, avers:

1. On 31 JJuly uly 201 2013, 3, the Hon Honora orable ble Lab Labor or Arb Arbite iterr Ado Adolfo lfo C. B Babi abiano ano rendered a decision, the dispositive portion of which reads:

“WHEREFORE, judgment is hereby rendered dismissing the case for lack of merit. SO ORDERED.” 1

2. On appea appeal, l, the said decisi decision on was affi affirmed rmed by the Hono Honorable rable Speci Special al nd Second (2 ) Division of the NLRC through its Decision promulgated on 31 July 2014, which reads:

“WHEREFORE, premises considered and subject to the above disquisitions, Eduardo’s appeal is DISMISSED for lack  of merit. The Labor Arbiter’s assailed Decision in the aboveentitled case is hereby AFFIRMED. 1 Page 7, Honorable Labor Arbiter’s Arbiter’s Decision.

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SO ORDERED.”2 (Emphasis in the original)

3.

The ratiocination for the granting of the appeal was stated in this wise:

“In this case, We find that there was no dismissal. Hence, there is no question that can be entertained regarding its legality or illegality. Specifica Specif ically lly,, res respon ponden dents ts wer weree abl ablee to sho show w tha thatt the they y never dismissed Eduardo. It was shown that on November 4, 2012 20 12,, Fe Fern rnan ando do se serv rved ed on Ed Edua uard rdo o a no noti tice ce to ex expl plai ain n th thee latter's absences together with a demand to pay his short rentals. Since then, Eduardo never reported back to work. Other than Eduardo’s bare and self-serving claim, that he did did no nott re rece ceiv ivee the the no noti tice ce on No Nove vemb mber er 4, 20 2012 12 an and d hi hiss unsubstantiated allegation of having been verbally terminated from his work and refus refused ed entry into respond respondents' ents' premise premisess on  November 6, 2012, there was no evidence presented to show that he was indeed dismissed from work or was prevented from returning to his work. In the absence of any showing of an overt or positive act proving that respondents had dismissed Eduardo, the latter's claim of illegal dismissal cannot be sustained - as the same would be self-serving, conjectural and of no probative value. xxx

xxx

xxx

Hence, Henc e, as be betw twee een n Ed Edua uard rdo’ o’ss ge gene nera rall al alle lega gati tion on of  having been orally dismissed from work and refused entry into respondents’ premises vis-a-vis those of respondents which was subs substa tant ntia iate ted d by the the sw swor orn n Af Affi fida davi vitt of Fe Fern rnan ando do,, We are are  persuaded by the latter latter.. Absent any showing of an overt -or   positive act proving that respondents had dismissed Eduardo, the lat latter ter's 's cla claim im of illega illegall dis dismis missal sal can cannot not be sus sustai tained ned.” .”3 (Citations omitted)

4. Th Thee Ho Hono nora rabl blee Co Comm mmis issi sion on,, in de deny nyin ing g th thee co comp mpla lain inan antt-ap appe pell llan ant’ t’ss appeal, based its ruling on the sworn affidavit of one of the latter’s coempl em ploy oyee ees, s, Mr. Mr. Fe Fern rnan ando do Vino, ino, wh who o is a cu curr rren entt em empl ploy oyee ee of th thee respondents-appellees. He could, however, be reasonably expected to sign documents such as an affidavit prepared by his employer for fear of reprisal or losing his emplo employment yment.. Indee Indeed, d, the Hono Honorable rable Suprem Supremee Court in Uy v. 2 Page 7, Honorable Commission’s Decision. 3 Pages 4-5, Decision of the Honorable Special Second (2nd) Division of the NLRC..

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Centro Ceramica Corporation4 held that the affidavits submitted by the respondents in that case “are “are at best self-serving having been executed by employees beholden to their employer.” employer. ”

5. Th Thee stat statem emen entt of Mr Mr.. Vino ino be bein ing g self self-s -ser ervi ving ng,, th thee Ho Hono nora rabl blee Commission, with all due respect, should not have denied the instant appeal solely on such ground. This is also granting that his statement was countered  by the complainant-appellant complainant-appellant in his positio position n paper, which was under oath. 6. Thus, contrary to the ruling of the Honorable Comm mmiission, the te term rmin inat atio ion n of the the co comp mpla lain inan antt-ap appe pell llan ant’ t’ss em empl ploy oyme ment nt wi with th th thee respondents-appellees should be declared illegal for the latter’s failure to validly counter the allegations of the former.

PRAYER  WHEREFORE,  premises considered, it is most respectfully prayed of this Honorable Commission that its Decision dated 31 July 2014, be RECONSIDERED and a new one be rendered GRANTING the claims of  the complaint-appellant in his position paper.

Quezon City, 13 August 2014.

DEPARTMENT OF JUSTICE PUBLIC ATTORNEY’S ATTORNEY’S OFFI OFFICE CE DOJ Agencies Building  NIA Road cor cor.. East Avenue 1104 Diliman, Quezon City Tel. No. 929-9436, loc. 121 or 122 By: CARMELA A. ABLAZA OIC, Legal Research Service Roll No. 53609 Lifetime IBP No. 06591 MCLE Compliance No. IV-0004795, March 05, 2012

MA. KATRINA J. AGLIBOT Public Attorney III

RollIBP No.No. 59769 Lifetime 012846 4 G.R. No. 174631, 19 October 2011

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MCLE Compliance No. IV-0013977, 27 March 2013 And: MAE BELLE D. DIMAANO Public Attorney III Roll No. 59486 Lifetime IBP No. 012845 MCLE Compliance No. IV-0017635, 19 April 2013

NOTICE OF HEARING GREETINGS:  NOTICE IS HEREBY GIVEN that the undersigned counsel shall submit the foregoing Motion for the consideration and resolution of the Honorable Arbiter Arbiter immediately upon receipt hereof.

MAE BELLE D. DIMAANO

EXPLANATION The foregoing Motion is being served by registered mail, personal se serv rvic icee be bein ing g im impr prac acti tica cabl blee owin owing g to th thee la lack ck of me mess ssen enge gers rs in th thee undersigned counsel’s office.

MAE BELLE D. DIMAANO

Copy furnished:

JEOSA TRANSPORT/MR. DOMINGO PAGUYO Sampaguita St. corner IBP Road (Beside DSWD) Quezon City  NCR 1100

ATTY. ARNOLD C. BAYOBAY Counsel for the Respondents Room 301, Margarita Building,  No. 8 Matalino St. cor. Masikap Masikap St.,

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Central District, Quezon City

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