NLRC Memorandum of Appeal

Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION Quezon City THE COMPANY, INC., Appellant-Respondent. -

versus -

NLRC CASE NO. _________________

JEEMVIE TUOL AND MAGEN ALDAVE, JR., Appellees-Complainants. x----------------------x

APPEAL AND MEMORANDUM OF APPEAL COME NOW Appellants-respondents, by counsel, unto this Honorable Commission, most respectfully state, thus:

JURISDICTIONAL FACTS 1. On December 7, 2007, appellant-respondent received a copy, through its authorized representative Mr. Edwin B. Lucas, of the subject Decision of the Hon. Labor Arbiter Eduardo J. Carpio in NLRC Case No. 00-06-05227-06 entitled Jeemvie Tuol and Magen Aldave, Jr. and The Company, Inc.; 2. Thus, appellant-respondent has until December 17, 2007 within which to file its Appeal and Memorandum of Appeal; 3. Appellant-respondent most respectfully appeals the Decision of the Hon. Carpio to the Honorable Commission and submit the instant Memorandum of Appeal. 4. In his Decision, the Hon. Carpio ruled, to wit: “WHEREFORE, premises considered, judgment is hereby rendered declaraing complainants' dismissal as illegal. Respondents are hereby ordered to pay complainant Tuol the total amount sixty seven thousand six hundred pesos (P67,600.00) (sic) and complainant Aldave the total amount of eighty four thousand five hundred pesos (P84,500.00) representing their separation pay and full backwages. All other claims are hereby ordered dismissed.” 5. The Hon. Carpio committed grave abuse of discretion in rendering the above decision and committed serious errors in the findings of facts which, if not corrected, would cause grave or irreparable damage or injury to the appellant-respondent as discussed in the Assignment of Errors and Arguments below:

ASSIGNMENT OF ERRORS 6.

The Hon. Carpio committed grave abuse of discretion in rendering the above decision and committed serious errors in the findings of facts in finding that: a.

Complainants-appellees were illegally dismissed.

b.

Complainants are entitled to separation pay and full backwages.

ARGUMENTS Complainants-appellees were illegally dismissed. 7.

With all due respect, it was serious error for the Hon. Carpio to have found that appellees-complainants were illegally dismissed. Appellees-complainants could not have been illegally dismissed because they were never dismissed in the first place.

8. Even a cursory examination of complainants-appellees’ Position Paper and other pleadings in the proceedings a quo will readily show that they failed to substantiate the alleged dismissal, much more the alleged illegal dismissal. 9.

Appellee Tuol claims to have been dismissed on May 12, 2006 but other than this barren claim, he is unable to show how he was dismissed or by whom.

10. The same could be said of appellee Aldave. If indeed they were dismissed, they could have easily shown a copy of any letter or notice of termination/dismissal coming from appellants. 11. Appellees never did. At no time were they able to show any such letter or notice or any other document of termination/dismissal coming from appellants. 12. Neither were appellees able to show even any testimonial evidence of such termination. Appellees themselves have been unable to show, at least even by testimonial evidence, how they were terminated. 13. Complainants-appellees failed to indicate the circumstances of their alleged termination, including stating the factual details of who terminated them, when, and how. This failure to even make such cursory allegation of the basic circumstances of the alleged termination should demonstrate that the alleged tale of termination is no more than a fairy tale that should not have been given credence by the Hon. Carpio. 14. While it is true that an employer has the burden to prove the legality of any termination, at the very least, a complaining employee must be able to substantiate an alleged termination. In the recent case of McLeod vs. NLRC, et al. (G.R. No. 146667, January 23, 2007), the Supreme Court reiterated, thus: “It is a basic rule in evidence that parties must prove their affirmative allegations. While technical rules are not strictly followed in the NLRC, this does not mean that the rules on proving allegations are entirely ignored. Bare allegations are not enough. They must be supported by substantial evidence at the very least.” 15. In the instant case, the complaining workers were never dismissed. They have never been able to prove their dismissal. Not with any documentary evidence. Not with any testimonial evidence. Not even with any evidence except their very bare, scant allegations. 16. It is admitted that complainants were on different dates asked to go on forced leave. But the act of asking both complainants-appellees to go on forced leave is not equivalent to termination of their regular employment. 17. Appellants-respondents merely exercised their right under Art. 286 of the Labor Code to suspend the work of some of its workers when there is no work to be done. 18. Under the said provision: “ART. 286. When employment not deemed terminated.- The bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority

rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.” 19. In Philippine Industrial Security Agency Corp. vs. Dapiton, et al. (G.R. NO. 127421, December 8, 1999), the Supreme Court stated, to wit: “We stress that Article 286 applies only when there is a bona fide suspension of the employer's operation of a business or undertaking for a period not exceeding six (6) months. In such a case, there is no termination of employment but only a temporary displacement of employees, albeit the displacement should not exceed six (6) months. The paramount consideration should be the dire exigency of the business of the employer that compels it to put some of its employees temporarily out of work.” 20. The forced leave status of complainants-appellees (during which the contract of The Company, Inc. with its clients had expired) was for a brief period of time not exceeding six months. Before the end of the six-month period from the time of their forced leave, complainants-appellees were asked to report back for work. 21. This explains why there is no notice or letter of termination on record whatsoever. Because the employment of complainants-appellees was never terminated. 22. In par. 5 of respondents-appellants’ Position Paper, respondents-appellants made a categorical and unconditional statement that “they (complainants) are now being recalled for the next project.” 23. Again, in the respondents-appellants’ Reply to Position Paper of the Complainants, the fact that complainants-appellees were never terminated was reiterated, thus: “In fact they were recalled to report for work since there was another project contracted by the respondents, however, the complainants refused to report for work. Thus, they actually and inferentially resigned or abandoned their employment.” (Par. 1) 24. Once more, in respondents-appellants’ Rejoinder to Complainant’s Reply, the nontermination of complainants’-appellees was further demonstrated, to wit: “Moreover, there is no termination in question because the complainants were required to report for work for the next project of the company but they refused to accept it and instead, filed the instant case under the erroneous belief that they were dismissed. Such alleged dismissal is unfounded considering that the company next project is available to them.” (Par. 2) 25. All the pleadings of respondents-appellants were consistent on three points: a. Complainants-appellees were never terminated. b. Complainants-appellees were asked to report for work in another project; and c. Complainants-appellees refused to report for work in the next project. 26. Even then, respondents-appellants did not terminate their employments with the company. 27. The fact that complainants-appellees were asked to be recalled for the next project belies any claim of termination, much less of an illegal termination. 28. Complainants-appellees assert that respondents-appellees had no just or authorized cause for their alleged dismissal. Neither did they comply with procedural due process. 29. But as demonstrated beyond cavil, respondents-appellants never terminated the employment of complainants-appellants.

30. Complainants-appellees mistakenly understood their having been forced to go on leave under Art. 286 as termination of their employment. In fact, the declaration by complainants-appellees that they did not want to be reinstated (“Relief” portion of their Complaint) demonstrates that they had voluntarily refused to continue with their employment with appellant-respondent. 31. Even then, appellant-respondent manifests that the two workers can continue to work with the former anytime. 32. During the period of forced leave when appellees-complainants did not do any work, they are not entitled to any wages under the basic principle of “a fair day's wage for a fair day's work.” 33. The absolute lack of evidence to substantiate the claim of dismissal by the appellantsrespondents was glaringly ignored by the Hon. Carpio. 34. The commission of serious errors in the findings of facts by the Hon. Carpio, if not corrected, would cause grave or irreparable damage or injury to the appellantsrespondents.

Complainants are entitled to separation pay and full backwages. 35. Because the complainants-appellees were never dismissed, there could be no occasion for any illegal dismissal. 36. And there being no illegal dismissal, they are not entitled to any separation pay and full backwages.

PRAYER: WHEREFORE, based on the foregoing, it is most respectfully prayed that the ruling of the Hon. Carpio: a.

Declaring complainants' dismissal as illegal be reversed and set aside.

b.

Holding respondents-appellants liable for the payment to complainant Tuol of the total amount sixty seven thousand six hundred pesos (P67,600.00) (sic) and complainant Aldave the total amount of eighty four thousand five hundred pesos (P84,500.00) representing their separation pay and full backwages be reversed and set aide.

Furthermore, the Complaint by complainants-appellees should be dismissed for being without any factual or legal basis. All other relief just and equitable under the premises are likewise prayed for. Quezon City. December 17, 2007.

LAW & ASSOCIATES Counsel for Petitioner