Republic of the Philippines
COURT OF APPEALS
Manila
TENTH DIVISION
CA-G.R. SP No. 134515
MID-SOUTH SHIP AND CREW (NLRC LAC No. [OFW-M] 11-001039-13)
MANAGEMENT, INC., ET. AL., (NLRC CASE No. (M) NCR-02-03126-13)
Petitioner,
-versus-
NATIONAL LABOR RELATIONS
COMMISSION and LUBESPERE
C. GONZALES,
Respondents.
x ----------------------------------------x
PRIVATE RESPONDENT’S
MEMORANDUM
Private Respondent, LUBESPERE C. GONZALES by counsel,
PAGE 1 OF 10 - PRIVATE RESPONDENT’S MEMORANDUM (GONZALES)
by this Memorandum, respectfully moves that the instant special
civil action for certiorari filed by petitioner be dismissed on
jurisdictional grounds, inter alia, on account of their failure to
perfect an appeal from the Decision of the Hon. Labor Arbiter
Raymund Celino in NLRC CASE No. (M) NCR-02-03126-13 to the
National Labor Relations Commission. In support hereof, private
respondent Gonzales respectfully states as follows –
1. First of all, private respondent respectfully manifests that
he is adapting and incorporating hereto the ratiocinations,
findings and rulings of the Honorable Labor Arbiter
Raymund Celino in the Decision dated 23 September 2013
in NLRC CASE No. (M) NCR-02-03126-13; the Honorable
NLRC in their Resolutions dated 21 November 2013 and 26
December 2013 in NLRC LAC No. [OFW-M] 11-001039-13.
These Decision and Resolutions are appended by herein
petitioners in their petition filed before this Honorable
Court as part of the records of this litigation proceedings.
2. Antecedent to the filing of the above-captioned petition for
certiorari, in NLRC CASE No. (M) NCR-02-03126-13 the
Hon. Labor Arbiter Raymund Celino rendered a Decision
dated 23 September 2013 awarding in favor of herein
private respondent, as follows:
“WHEREFORE, premises considered,
respondents are hereby ordered to pay
complainant, jointly and severally, disability
benefits in the sum of US$60,000.00 or its
equivalent in Philippine Peso plus ten (10%)
percent attorney’s fees.”
3. Herein petitioners (being the respondents in NLRC CASE
No. (M) NCR-02-03126-13) filed a Memorandum of Appeal
with Motion To Reduce Bond before respondent NLRC
which was docketed as NLRC LAC No. [OFW-M] 11-001039-
13. No appeal bond in any amount whatsoever was posted.
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4. Herein private respondent (being the complainant in NLRC
CASE No. (M) NCR-02-03126-13) filed a Motion To Dismiss
the Appeal of the respondents (herein petitioners), pointing
out that their Memorandum of Appeal which contained a
motion to reduce appeal bond merely alleged that
“respondent-appellant Mid-South Ship Crew Management,
Inc., presently has no business and does not have the funds
to post an appeal bond in the total amount of US$60,000.00
x x x.” It was argued by herein private respondent that the
appeal was immediately dismissible on the basis of the
following observations and reasons herein discussed.
4.1. First, herein private respondent (being the
complainant in NLRC CASE No. (M) NCR-02-03126-
13), observed that herein petitioner’s MEMORANDUM
OF APPEAL AND THEIR MOTION TO REDUCE BOND (in
NLRC LAC No. [OFW-M] 11-001039-13) ARE NOT
ACCOMPANIED BY ANY ACTUAL BOND IN A
REASONABLE AMOUNT. A mere motion to reduce
bond is not enough. The appeal must be accompanied
by an actual bond. Hence, the appeal was not
perfected and was rightfully dismissed by the NLRC.
The decision of the Labor Arbiter therefore became
final and executory and the NLRC (Commission
Proper) lost jurisdiction to entertain an appeal. In the
case of THE HERITAGE HOTEL MANILA versus NLRC,
ET., AL., G.R. Nos. 180478-79; 3 September 2009, the
Supreme Court held as follows –
“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.”
“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.”
(Emphasis and underscoring supplied)
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“This rule, however, admits exceptions. Sy v.
ALC Industries, Inc., reflects so:”
“Although the NLRC Rules of Procedure
may be liberally construed in the determination
of labor disputes, there is, however, a caveat to
this policy. Liberal construction of the NLRC
rules is allowed only in meritorious cases, where
there is substantial compliance with the NLRC
Rules of Procedure or where the party involved
demonstrates a willingness to abide by the rules
by posting a partial bond. In Bunagan v. Sentinel
Watchman and Protective Agency, Inc., we held:
Although the NLRC is not bound by the technical
rules of procedure and is allowed to be liberal in
the interpretation of the rules in deciding labor
cases, such liberality should not be applied
where it would render futile the very purpose for
which the principle of liberality is adopted; the
liberal interpretation stems from the mandate
that a workingman’s welfare should be the
primordial and paramount consideration.”
“Respondents have not shown any reason
to warrant a liberal interpretation of the NLRC
Rules of Procedure. For one, their failure to post
an appeal bond during the reglamentary period
was directly violative of Article 223 of the Labor
Code. In a long line of cases, we have ruled that
the payment of the appeal bond is a
jurisdictional requisite for the perfection of an
appeal to the NLRC. The lawmakers intended to
make the posting of a cash or surety bond by the
employer the exclusive means by which an
employer’s appeal may be perfected. The
rationale for this rule is:”
“The requirement that the employer post a
cash or surety bond to perfect its/his appeal is
PAGE 4 OF 10 - PRIVATE RESPONDENT’S MEMORANDUM (GONZALES)
apparently intended to assure the workers that if
they prevail in the case, they will receive the
money judgment in their favor upon the
dismissal of the employers’ appeal. It was
intended to discourage employers from using an
appeal to delay, or even evade, their obligation
to satisfy their employee’s just and lawful claims.
(Emphasis and underscoring supplied; citations
omitted)
“From the immediately quoted
pronouncement of the Court in Sy, petitioner’s
MERE FILING OF THE MOTION FOR REDUCTION
OF BOND DID NOT SUFFICE TO PERFECT HIS
APPEAL. As correctly found by the appellate
court, petitioner filed a Motion for Reduction of
Bond dated June 24, 1999 (which was received
by the appellate court on June 28, 1999)
ALLEGING FINANCIAL CONSTRAINTS WITHOUT
SHOWING "SUBSTANTIAL COMPLIANCE WITH
THE RULES" OR DEMONSTRATING A
WILLINGNESS TO ABIDE BY THE [R]ULES BY
POSTING A PARTIAL BOND." That petitioner
questioned the computation of the monetary
award ─ basis of the computation of the amount
of appeal bond did not excuse it from posting a
bond in a reasonable amount or what it believed
to be the correct amount.”
“Since no exceptional circumstances obtain
in the present case warranting the relaxation of
the Rules, the Labor Arbiter’s Decision had
become final and executory.” [THE HERITAGE
HOTEL MANILA versus NLRC, ET., AL., G.R. Nos.
180478-79; 3 September 2009]
4.2. Second, herein private respondent (complainant in
NLRC LAC No. [OFW-M] 11-001039-13) observed that
THE MERE ALLEGATION POSITED BY HEREIN
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PETITIONERS IN THEIR MOTION TO REDUCE BOND
before the NLRC WAS NOT SUPPORTED BY ANY
EVIDENCE attached to their motion. Hence, it was just
an allegation and cannot be considered a fact.
Without substantiation to prove any valid or
justifiable ground, the motion to reduce bond was a
mere scrap of paper. Without such substantiation,
there could be no parameter or weighing of
circumstances as to whether or not the amount
sought to be posted as reduced bond is reasonable or
not.
4.3. Third, it herein private respondent (complainant in
NLRC LAC No. [OFW-M] 11-001039-13) observed that
HEREIN PETITIONERS, (RESPONDENTS IN NLRC LAC
No. [OFW-M] 11-001039-13) WAS NOT ONLY MID-
SOUTH SHIP AND CREW MANAGEMENT BUT ALSO
LINDEN SHIPPING INTERNATIONAL LCC and MR.
NESTOR ILANO. Therefore, their allegation that
respondent Mid-South Ship and Crew Management
has no business and has no funds would not be
sufficient to support the motion to reduce bond for all
the respondents-appellants. The Memorandum of
Appeal manifestly showed that the appellants are all
the respondents joined together in the appeal and
represented by one and the same law firm. While the
motion stated that Mid-South Ship and Crew
Management has no business and has no funds, it
does not say so for the other respondents.
4.4. Fourth observation: Section 6 of Rule VI of the 2011
NLRC Rules of Procedure provides that –
“SECTION 6. BOND. - In case the decision of
the Labor Arbiter or the Regional Director
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
amount to the monetary award, exclusive of
PAGE 6 OF 10 - PRIVATE RESPONDENT’S MEMORANDUM (GONZALES)
damages and attorney’s fees.”
“In case of surety bond, the same shall be
issued by a reputable bonding company duly
accredited by the Commission or the Supreme
Court, and shall be accompanied by original or
certified true copies of the following:”
“a) 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.”
“b) an indemnity agreement between the
employer-appellant and bonding
company;”
“c) proof of security deposit or collateral
securing the bond: provided, that a check
shall not be considered as an acceptable
security;”
“d) a certificate of authority from the
Insurance Commission;”
“e) certificate of registration from the
Securities and Exchange Commission;”
“f) certificate of accreditation and authority
from the Supreme Court; and”
“g) notarized board resolution or secretary’s
certificate from the bonding company
showing its authorized signatories and
their specimen signatures.”
“The Commission through the Chairman
may on justifiable grounds blacklist a bonding
company, notwithstanding its accreditation by
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the Supreme Court.”
“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.”
“The appellant shall furnish the appellee
with a certified true copy of the said surety bond
with all the above-mentioned supporting
documents. The appellee shall verify the
regularity and genuineness thereof and
immediately report any irregularity to the
Commission.”
“Upon verification by the Commission that
the bond is irregular or not genuine, the
Commission shall cause the immediate dismissal
of the appeal, and censure the responsible
parties and their counsels, or subject them to
reasonable fine or penalty, and the bonding
company may be blacklisted.”
“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.”
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. (Italics and
capitalization supplied for emphasis.)
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4.5. Fifth observation: It was very clear that herein
petitioners (as respondents-appellants in NLRC LAC
No. [OFW-M] 11-001039-13) failed to observe the
above-stated requirements of Section 6, Rule VI of the
2011 NLRC Rules of Procedure. Petitioners (as
respondents-appellants NLRC LAC No. [OFW-M] 11-
001039-13) failed to post the required bond. The
memorandum of appeal with motion to reduce bond
was not accompanied by any bond in a reasonable
amount in relation to the judgment award. Therefore
their appeal of was a mere scrap of paper.
5. As a result of the foregoing, the appeal of herein petitioners
(as respondents-appellants in NLRC LAC No. [OFW-M] 11-
001039-13) was not perfected. The Labor Arbiter’s
judgment award of US$66,000.00 in NLRC CASE No. (M)
NCR-02-03126-13 became final and executory since the
passing and expiration of the period to appeal was not
stopped by mere filing of a memorandum of appeal with
motion to reduce bond; but without any bond actually
posted in a reasonable amount in relation to the monetary
judgment award.
6. The Honorable NLRC (5th Division) in its Resolution of 21
November 2013, correctly dismissed the appeal of herein
petitioners (respondents-appellants in NLRC LAC No. [OFW-
M] 11-001039-13) due to its non-perfection for failure to
post any appeal bond. Hence, the judgment award in favor
of herein private respondent was undisturbed.
Subsequently another resolution dated 26 December 2013
was promulgated by the Honorable Commission (NLRC-5th
Division), denying herein petitioners’ motion for
reconsideration of the Resolution dated 21 November 2013.
7. An Entry of Judgment dated 21 March 2014 was issued in
due course declaring that the resolutions of the Honorable
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Commission (NLRC-5th Division) attained final and
executory status. Such final and executory decision and
resolution in effect rendered the judgment award in the
Decision of the Honorable Labor Arbiter dated 23
September 2013, likewise final and executory.
CONCLUSION
8. Clearly therefore, based on the immutable and clear records
of this case, THERE CAN BE NO GRAVE ABUSE OF
DISCRETION THAT MAY POSSIBLY BE ATTRIBUTED TO
PUBLIC RESPONDENT NLRC in its challenged Resolutions
dated 21 November 2013 and 26 December 2013 in NLRC
LAC No. [OFW-M] 11-001039-13.
RELIEF SOUGHT
WHEREFORE, it is respectfully asked of this Honorable
Court that the instant petition be dismissed for lack of merit.
Other reliefs just and equitable under the premises are likewise
respectfully sought.
RESPECTFULLY SUBMITTED; Quezon City and Santa Cruz,
Laguna for the City of Manila, this 10th of November 2014.
Atty. EMMANUEL E. SANDICHO
Counsel for Lubespere C. Gonzales
(CSWAP) Rm. 402-B Web-Jet Bldg., No. 64
Quezon Ave. cor. BMA Ave., Quezon City
Email address: attysandicho@gmail.com
IBP No. 941754, 03 January 2014, Laguna
PTR No. 1653109, 03 January 2014, Laguna
Roll No. 42246, admitted on 9 May 1997
MCLE Compliance No. IV-0021894/4.9.2013
__________________________________________________
Copy furnished:
PAGE 10 OF 10 - PRIVATE RESPONDENT’S MEMORANDUM (GONZALES)
DEL ROSARIO & DEL ROSARIO Reg. Receipt No. __________
LAW OFFICES Post Office ________________
15th Flr Pacific Star Bldg., cor. Gil Puyat Date _______________________
& Makati Avenues, Makati City 1200
NATIONAL LABOR RELATIONS COMMISSION
FIFITH DIVISION (NLRC-5th DIVISION) Reg. Receipt No. __________
PPSTA Building, Banawe Avenue corner Post Office ________________
P. Florentino Street, Quezon City Date _______________________
EXPLANATION: Service of this pleading to above-named
address/ees was/were done by way of registered mail due to
time constraints, distance and unavailability of messenger.
