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 Appellan!"#e!p$n%en!, by counsel, unto this Honorable Commission, most
respectfully state, thus
JURISDICTIONAL FACTS
!" #n December $, %&&$, appellant-respondent recei'ed a copy, throu(h its authorized
representati'e )r" Ed*in +" Lucas, of the sub,ect Decision of the Hon" Labor -rbiter
Eduardo ." Carpio in /LRC Case /o" &&-&0-&1%%$-&0 entitled .eem'ie 2uol and )a(en
-lda'e, .r" and 2he Company, 3nc"4
%" 2hus, appellant-respondent has until December !$, %&&$ *ithin *hich to file its -ppeal
and )emorandum of -ppeal4
5" -ppellant-respondent most respectfully appeals the Decision of the Hon" Carpio to the
Honorable Commission and submit the instant )emorandum of -ppeal"
6" 3n his Decision, the Hon" Carpio ruled, to *it
7WHEREFORE, premises considered, ,ud(ment is hereby rendered declarain(
complainants8 dismissal as ille(al" Respondents are hereby ordered to pay
complainant T&$l the total amount sixty se'en thousand six hundred pesos
9P0$,0&&"&&: 9sic: and complainant Al%a'e the total amount of ei(hty four
thousand fi'e hundred pesos 9P;6,1&&"&&: representin( their separation pay
and full bac<*a(es" -ll other claims are hereby ordered dismissed"=
1" 2he Hon" Carpio committed (ra'e abuse of discretion in renderin( the abo'e decision and
committed serious errors in the findin(s of facts *hich, if not corrected, *ould cause
(ra'e or irreparable dama(e or in,ury to the appellant-respondent as discussed in the
-ssi(nment of Errors and -r(uments belo*
ASSIGNMENT OF ERRORS
0" 2he Hon" Carpio committed (ra'e abuse of discretion in renderin( the abo'e decision and
committed serious errors in the findin(s of facts in findin( that
a" Complainants-appellees *ere ille(ally dismissed"
b" Complainants are entitled to separation pay and full bac<*a(es"
ARGUMENTS
C$(pla)nan!"appellee! *e#e )lle+all, %)!()!!e%.
$" >ith all due respect, it *as serious error for the Hon" Carpio to ha'e found that
appellees-complainants *ere ille(ally dismissed" -ppellees-complainants could not
ha'e been ille(ally dismissed because they *ere ne'er dismissed in the first place"
;" E'en a cursory examination of complainants-appellees? Position Paper and other pleadin(s
in the proceedin(s a quo *ill readily sho* that they failed to substantiate the alle(ed
dismissal, much more the alle(ed ille(al dismissal"
@" -ppellee 2uol claims to ha'e been dismissed on )ay !%, %&&0 but other than this barren
claim, he is unable to sho* ho* he *as dismissed or by *hom"
!&" 2he same could be said of appellee -lda'e" 3f indeed they *ere dismissed, they could
ha'e easily sho*n a copy of any letter or notice of terminationAdismissal comin( from
appellants"
!!" -ppellees ne'er did" -t no time *ere they able to sho* any such letter or notice or any
other document of terminationAdismissal comin( from appellants"
!%" /either *ere appellees able to sho* e'en any testimonial e'idence of such termination"
-ppellees themsel'es ha'e been unable to sho*, at least e'en by testimonial
e'idence, ho* they *ere terminated"
!5" Complainants-appellees failed to indicate the circumstances of their alle(ed termination,
includin( statin( the factual details of *ho terminated them, *hen, and ho*" 2his
failure to e'en ma<e such cursory alle(ation of the basic circumstances of the alle(ed
termination should demonstrate that the alle(ed tale of termination is no more than a
fairy tale that should not ha'e been (i'en credence by the Hon" Carpio"
!6" >hile it is true that an employer has the burden to pro'e the le(ality of any termination,
at the 'ery least, a complainin( employee must be able to substantiate an alle(ed
termination" 3n the recent case of McLeod vs. NLRC, et al. 9B"R" /o" !6000$, .anuary
%5, %&&$:, the Cupreme Court reiterated, thus
73t is a basic rule in e'idence that parties must pro'e their affirmati'e
alle(ations" >hile technical rules are not strictly follo*ed in the /LRC, this
does not mean that the rules on pro'in( alle(ations are entirely i(nored" +are
alle(ations are not enou(h" 2hey must be supported by substantial e'idence at
the 'ery least"=
!1" 3n the instant case, the complainin( *or<ers *ere ne'er dismissed" 2hey ha'e ne'er been
able to pro'e their dismissal" /ot *ith any documentary e'idence" /ot *ith any
testimonial e'idence" /ot e'en *ith any e'idence except their 'ery bare, scant
alle(ations"
!0" 3t is admitted that complainants *ere on different dates as<ed to (o on forced lea'e" +ut
the act of as<in( both complainants-appellees to (o on forced lea'e is not eDui'alent
to termination of their re(ular employment"
!$" -ppellants-respondents merely exercised their ri(ht under -rt" %;0 of the Labor Code to
suspend the *or< of some of its *or<ers *hen there is no *or< to be done"
!;" Ender the said pro'ision
7ART. -./" When employment not deemed terminated"- 2he bona fide
suspension of the operation of a business or underta<in( for a period not
exceedin( six 90: months, or the fulfillment by the employee of a military or
ci'ic duty shall not terminate employment" 3n all such cases, the employer
shall reinstate the employee to his former position *ithout loss of seniority
ri(hts if he indicates his desire to resume his *or< not later than one 9!: month
from the resumption of operations of his employer or from his relief from the
military or ci'ic duty"=
!@" 3n Philippine Industrial ecurity A!ency Corp. vs. "apiton, et al. 9B"R" /#" !%$6%!,
December ;, !@@@:, the Cupreme Court stated, to *it
7>e stress that -rticle %;0 applies only *hen there is a bona fide
suspension of the employer8s operation of a business or underta<in( for a period
not exceedin( six 90: months" 3n such a case, there is no termination of
employment but only a temporary displacement of employees, albeit the
displacement should not exceed six 90: months" 2he paramount consideration
should be the dire exi(ency of the business of the employer that compels it to
put some of its employees temporarily out of *or<"=
%&" 2he forced lea'e status of complainants-appellees 9durin( *hich the contract of 2he
Company, 3nc" *ith its clients had expired: *as for a brief period of time not
exceedin( six months" +efore the end of the six-month period from the time of their
forced lea'e, complainants-appellees *ere as<ed to report bac< for *or<"
%!" 2his explains *hy there is no notice or letter of termination on record *hatsoe'er"
+ecause the employment of complainants-appellees *as ne'er terminated"
%%" 3n par" 1 of respondents-appellants# P$!))$n Pape#, respondents-appellants made a
cate(orical and unconditional statement that 7they 9complainants: are no* bein(
recalled for the next pro,ect"=
%5" -(ain, in the respondents-appellants# Repl, $ P$!))$n Pape# $0 1e C$(pla)nan!, the
fact that complainants-appellees *ere ne'er terminated *as reiterated, thus
73n fact they *ere recalled to report for *or< since there *as another
pro,ect contracted by the respondents, ho*e'er, the complainants refused to
report for *or<" 2hus, they actually and inferentially resi(ned or abandoned
their employment"= 9Par" !:
%6" #nce more, in respondents-appellants? Re,oinder to Complainant?s Reply, the non-
termination of complainants?-appellees *as further demonstrated, to *it
7)oreo'er, there is no termination in Duestion because the complainants
*ere reDuired to report for *or< for the next pro,ect of the company but they
refused to accept it and instead, filed the instant case under the erroneous
belief that they *ere dismissed" Cuch alle(ed dismissal is unfounded
considerin( that the company next pro,ect is a'ailable to them"= 9Par" %:
%1" -ll the pleadin(s of respondents-appellants *ere consistent on three points
a" Complainants-appellees *ere ne'er terminated"
b" Complainants-appellees *ere as<ed to report for *or< in another pro,ect4
and
c" Complainants-appellees refused to report for *or< in the next pro,ect"
%0" E'en then, respondents-appellants did not terminate their employments *ith the
company"
%$" 2he fact that complainants-appellees *ere as<ed to be recalled for the next pro,ect
belies any claim of termination, much less of an ille(al termination"
%;" Complainants-appellees assert that respondents-appellees had no ,ust or authorized cause
for their alle(ed dismissal" /either did they comply *ith procedural due process"
%@" +ut as demonstrated beyond ca'il, respondents-appellants ne'er terminated the
employment of complainants-appellants"
5&" Complainants-appellees mista<enly understood their ha'in( been forced to (o on lea'e
under -rt" %;0 as termination of their employment" 3n fact, the declaration by
complainants-appellees that they did not *ant to be reinstated 97Relief= portion of
their Complaint: demonstrates that they had 'oluntarily refused to continue *ith their
employment *ith appellant-respondent"
5!" E'en then, appellant-respondent manifests that the t*o *or<ers can continue to *or<
*ith the former anytime"
5%" Durin( the period of forced lea'e *hen appellees-complainants did not do any *or<, they
are not entitled to any *a(es under the basic principle of 7a fair day8s *a(e for a fair
day8s *or<"=
55" 2he absolute lac< of e'idence to substantiate the claim of dismissal by the appellants-
respondents *as (larin(ly i(nored by the Hon" Carpio"
56" 2he commission of serious errors in the findin(s of facts by the Hon" Carpio, if not
corrected, *ould cause (ra'e or irreparable dama(e or in,ury to the appellants-
respondents"
C$(pla)nan! a#e en)le% $ !epa#a)$n pa, an% 0&ll 2a34*a+e!.
51" +ecause the complainants-appellees *ere ne'er dismissed, there could be no occasion for
any ille(al dismissal"
50" -nd there bein( no ille(al dismissal, they are not entitled to any separation pay and full
bac<*a(es"
PRAYER5
WHEREFORE, 2a!e% $n 1e 0$#e+$)n+, it is most respectfully prayed that the rulin( of the
Hon" Carpio
a" Declarin( complainants8 dismissal as ille(al be re'ersed and set aside"
b" Holdin( respondents-appellants liable for the payment to complainant 2uol of
the total amount sixty se'en thousand six hundred pesos 9P0$,0&&"&&: 9sic: and
complainant -lda'e the total amount of ei(hty four thousand fi'e hundred
pesos 9P;6,1&&"&&: representin( their separation pay and full bac<*a(es be
re'ersed and set aide"
Furthermore, the Complaint by complainants-appellees should be dismissed for bein( *ithout
any factual or le(al basis"
-ll other relief ,ust and eDuitable under the premises are li<e*ise prayed for"
Quezon City"
December !$, %&&$"
LAW 6 ASSOCIATES
Counsel $or Petitioner