Republic of the Philippines

COURT OF APPEALS
Manila

______________________________,
Petitioner,
- versus -
CA-G.R. SP NO. ______________
(NLRC LAC No. ______________)
FOR: CERTIORARI with prayer
for the issuance of a
temporary restraining
order and/or a writ of
preliminary injunction
THE NATIONAL LABOR
RELATIONS COMMISSION AND
_________________________,
Respondents.
xx - - - - - - - - - - - - - - - - - - - -xx

PETITION

NOW COMES the Petitioner ____________________________

CORPORATION, by its undersigned counsel, and to the
Honorable Court of Appeals respectfully states that

I. STATEMENT OF THE CASE

1.1 This is a petition for certiorari under Rule 65 of the

Rules of Court, to set aside and nullify the Decision of the
National Labor Relations Commission (“Respondent NLRC” for
brevity) in NLRC LAC NO. ___________________ dated 26
February 2016 - that denied its appeal – and the Resolution
dated 31 May 2016 – that denied its timely filed Motion for
Reconsideration. Certified true copies of said Decision and
Resolution are attached hereto as Annexes “A” and “B” and
made integral parts hereof.

1.2 The said Decision and Resolution of Respondent

NLRC were issued in grave abuse of discretion amounting to
lack/in excess of its jurisdiction - because in issuing such
rulings, the Respondent NLRC ruled upon a issue not raised
on appeal thus violating its very own 2011 NLRC Rules on
Appeal as well as the doctrine espoused by the Supreme Court
in the case of Luna v. Allado Construction Co., Inc., et al.
(G.R. No. 175251, 30 May 2011).
 1.3 Furthermore, it is respectfully submitted that the
Respondent NLRC acted in grave abuse of its discretion as its
Decision and Resolution upheld the improper action of the
Labor Arbiter allowing the filing of Respondent X X X X X’s
position paper in violation of the 2011 NLRC Rules of
Procedure.

1.4 Still furthermore, it is respectfully submitted that

the Respondent NLRC acted in grave abuse of its discretion in
disregarding material facts and jurisprudence which would
have clearly shown that the dismissal for cause of Respondent
Christopher X X X X X was proper, warranted and
commensurate to his established offense.

1.5 Thus, the resort to the instant Petition is proper

and warranted considering that said ruling in said questioned
Decision and Resolution (Annexes “A” and “B” hereof) are not
only null and void but did not and cannot become final and
executory and cannot be enforced (Estoesta v. Court of
Appeals, 179 SCRA 203, 212; Planas v. Collector of
Internal Revenue, 3 SCRA 395, 399-400).

1.6 All the foregoing, which will be discussed more

extensively below, show that the instant Petition is meritorious
and, it is respectfully submitted, that giving due course to it
and ruling in favor of herein Petitioner, is proper and
warranted.

II. TIMELINESS OF THE PETITION

2.1 Petitioner received through counsel a copy of the

Decision in NLRC Case No. NLRC LAC No. ___________________
dated 26 February 2016 (Annex “A” hereof) on 11 March
2016 and timely filed a Motion for Reconsideration thereof 21
March 2016.

2.2 Petitioner received through counsel a copy of the

Resolution of the NLRC denying its Motion for Reconsideration
(Annex “B” hereof) on 22 June 2016 such that the instant
Petition is timely filed within the required sixty (60) day period.

III. PARTIES

3.1 Petitioner ____________________________

CORPORATION is a domestic corporation, organized and
existing in accordance with Philippine law with corporate office
at ____________________. It is duly represented in this Petition
by ____________________________ as evidenced by the
____________________________ Corporation Board Resolution No.
16-4 (dated 24 June 2016) duplicate original of which is
attached hereto as Annex “C” and made an integral part
hereof.

3.2 Petitioner may be furnished with pleadings and all

processes of this Honorable Court through its undersigned
counsel with office address stated below.

3.3 Respondent NLRC is a government agency directly

under the Department of Labor and Employment and which
agency holds office at the PPSTA Building, Banawe St., Quezon
City. It may be served with pleadings, orders and court
processes, through its counsel - pursuant to the rule
enunciated in the case of Salazar v. Romaquin (G.R. No.
151068, May 21, 2004) - the Solicitor General of the
Philippines with office at 134 Amorsolo St., Legazpi Village,
Makati City.

3.4 Respondent Christopher X X X X X (“Respondent X

X X X X” for brevity) is a Filipino, of legal age, with present
address at ___________________ and he may be furnished with
pleadings and all processes of this Honorable Commission
through his counsel, ________________ with given address at
__________________________.

IV. STATEMENT OF THE FACTS

4.1 Respondent X X X X X worked as a project manager

of Petitioner.

4.2 At the onset of his employment by in 2008,

Respondent X X X X X voluntarily signed an Employment
Contract as well as a Confidentiality Agreement.

4.3 Sometime in July 2013, the management of

Petitioner caused an investigation and inventory to be made
of the company laptop assigned to Respondent X X X X X
wherein it was determined and found out that he had caused
several games, programs and applications - not related to nor
required for his work as project manager – to be downloaded
and installed in his laptop thus putting the office computer
system at risk and in violation of company policy and
regulations.
 4.4 On 06 February 2014, Respondent X X X X X
featured in an incident at the head office wherein he shouted
and uttered insulting and foul language at the company
general manager.

4.5 Respondent X X X X X was furnished on 11

February 2014 a Notice to Explain dated 11 February 2014
wherein he was informed that his actions against the general
manager, amounted not only to an offense against Conduct
and Decorum under the company’s rules and regulations but
amounted to an assault on a superior or company officer and
he was given the opportunity to provide an explanation or
justification for his action.

4.6 Respondent X X X X X submitted a written

explanation on 11 February 2014 wherein he admitted having
shouted at and uttered insulting language at Respondent-
Appellant Sacrez.

4.7 On 17 February 2014, an incident report was

submitted by the timekeeper of the Respondent company’s X X
X project – X X X X - describing that on 06 February 2014
while he was in the company’s site office, Respondent X X X X
X was already in a foul mood and was shouting and uttering
curses before leaving and going to the head office to talk to the
general manager.

4.8 On 01 March 2014, Respondent X X X X X was

furnished with another Notice to Explain wherein he was
informed of having committed the following violations:

a. Failure to regularly attend the coordination meeting

with a project client, HCC

b. Unauthorized installation of software/games

c. Sleeping while on duty

d. Causing others to fail in observing company quality

systems and procedures

with a directive to provide an explanation regarding the above-

described offenses alleged against him. However, Respondent X
X X X X never complied with the directive to provide an
explanation.
 4.9 On 01 March 2014, Respondent X X X X X was
furnished a Notice of Preventive Suspension that was to take
effect immediately upon his receipt thereof and until the
resolution of the administrative charges against him but for
not more than thirty days.

4.10 Since Respondent X X X X X never submitted an

explanation of the infractions charged against him in the
Notice of to Explain furnished him on 01 March 2014, on 02
May 2014, he was furnished a Notice of Termination effective
on the said date.

4.11 Respondent X X X X X soon thereafter filed a labor

complaint against the Petitioner. Copy of his signed Complaint
sheet filed with the NLRC is attached hereto as Annex “D” and
made an integral part hereof.

4.12 No amicable settlement could be had, however, as

there was no appearance during the preliminary conference by
Respondent X X X X X nor by his lawyer. Petitioner
maintained even then that Respondent X X X X X was
terminated for just cause and after being afforded due process.

4.13 Parties were required to submit their respective

position papers and Petitioner appeared before the Labor
Arbiter on 04 August 2014 and submitted its position paper.
A copy of said position paper – with copies of the documents
mentioned in pars. 4.2 to 4.10 hereof – is attached hereto as
Annex “E” and made an integral part hereof.

4.14 Respondent X X X X X however did not appear on

said such that the Labor Arbiter dismissed the complaint
without prejudice.

4.15 Respondent X X X X X filed a Motion to Re-open

and/or Admit on 12 August 2014. A copy of said pleading is
attached hereto as Annex “F” and made an integral part
hereof.

4.16 Before Petitioner could comment or oppose said

Motion to Re-open and/or Admit, the Labor Arbiter issued an
Order dated 22 August 2014 allowing the re-opening of the
complaint and directing the filing of parties’ position papers. A
copy of said Order is attached hereto as Annex “G” and made
an integral part hereof.
 4.17 Petitioner, who belatedly received a copy of the said
Motion to Re-open and/or Admit but was unaware of the 22
August 2014 Order of the Labor Arbiter, filed on 27 August
2014 a Comment/Opposition to the Motion to Re-open and/or
Admit. A copy of said Comment/Opposition is attached hereto
as Annex “H” and made an integral part hereof.

4.18 On 09 December 2015, counsel for Petitioner

received a copy of the 31 March 2015 Decision of Labor Arbiter
Hernandez finding that Respondent X X X X X was illegally
dismissed because of lack of due process and granted the
following monetary awards in his favor:

Backwages P540,000.00
Separation Pay P350,000.00
Exemplary Damages P150,000.00
Attorney’s Fees 10% of amount awarded

A copy of said Decision is attached hereto as Annex “I” and

made an integral part hereof.

4.19 Petitioner timely filed on 21 December 2015 a

Notice and Memorandum on Appeal with Motion to Reduce
Appeal Bond in accordance with par. 1, Sec. 1 of Rule VI of
the 2011 NLRC Rules of Procedure. A copy of said pleading
(without annexes – as said documents are already annexed to
the instant Petition) is attached hereto as Annex “J” and made
an integral part hereof.

4.20 In said Notice and Memorandum on Appeal,

Petitioner raised the following issues:

THE LABOR ARBITER ACTED WITH BIAS AND

PARTIALITY AND SERIOUSLY ERRED AND ACTED IN
GRAVE ABUSE OF HIS DISCRETION IN GRANTING THE
MOTION TO RE-OPEN AND/OR ADMIT FILED BY X X X
X X, AND THEREAFTER RULING IN HIS FAVOR,
DESPITE THE FACT THAT SAID ACTION/MOTION OF X
X X X X WAS CONTRARY TO THE PROVISIONS OF THE
2011 NLRC RULES OF PROCEDURE AND SHOULD
HAVE BEEN DISMISSED WITH PREJUDICE

THE LABOR ARBITER GRAVELY ERRED AND ACTED

IN GRAVE ABUSE OF HIS DISCRETION IN FINDING
THAT X X X X X WAS ILLEGALLY DISMISSED
BECAUSE THE LABOR ARBITER CONVENIENTLY
OMITTED AND DISREGARDED EVIDENCE SUBMITTED
 BY RESPONDENTS-APPELLANTS CLEARLY SHOWING
THAT THERE WAS JUST CAUSE TO TERMINATE X X X
X X AND THAT HE WAS TERMINATED AFTER BEING
AFFORDED PROCEDURAL AND SUBSTANTIAL DUE
PROCESS

THE LABOR ARBITER GRAVELY ERRED AND ACTED IN

GRAVE ABUSE OF HIS DISCRETION IN MAKING
MONETARY AWARDS TO X X X X X FOR FULL
BACKWAGES, SEPARATION PAY, EXEMPLARY
DAMAGES AND ATTORNEY’S FEES

THE LABOR ARBITER GRAVELY ERRED AND ACTED IN

GRAVE ABUSE OF HIS DISCRETION IN FINDING
RESPONDENTS-APPELLANTS WILLIAMS AND SACREZ
LIABLE TO X X X X X DESPITE A CLEAR LACK OF
SHOWING OF ANY MALICIOUS AND/OR OPPRESSIVE
ACTION BY THEM AGAINST X X X X X

4.21 It bears pointing out that no issue was raised on

appeal on the whether or not Respondent X X X X X’s
termination was commensurate to the offense he
committed because that was not one of the bases for the
Labor Arbiter’s finding of illegal dismissal.

4.22 In a Resolution dated 22 January 2016 (copy of

which is attached hereto as Annex “K” and made an integral
part hereof) Respondent NLRC denied Petitioner’s Motion to
Reduce Appeal Bond and required it to post an additional bond
to comply with the required amount of P890,000.00 which
directive Petitioner timely complied with.

4.23 All this time, Respondent X X X X X did not file any

responsive pleading to those filed by the Petitioner.

4.24 Petitioner received through counsel a copy of the

Decision in NLRC Case No. NLRC LAC No. X X X X dated 26
February 2016 (Annex “A” hereof) on 11 March 2016.

4.25 In said Decision, wherein Respondent NLRC reduced

the monetary award of the Labor Arbiter to P890,000.00 by
deleting the award for exemplary damages of P150,000.00, the
Respondent NLRC did not dispute and effectively upheld the
arguments of Petitioner on appeal that:
 a. The charges against Respondent X X X X X were
proven/substantiated and were not denied/disproven
by him

b. Respondent X X X X X was given a notice to explain

such that there was compliance with the two notice
rule

c. Respondent X X X X X was afforded procedural due

process, was given the opportunity to be heard thus
amounting to have been given an investigation as he
was given two months to respond/refute the charges
against him

4.26 Despite upholding – albeit impliedly – the arguments

of Petitioner on appeal, the Respondent NLRC nonetheless
ruled that Respondent X X X X X was illegally dismissed
because the penalty of dismissal that was meted on him was
not commensurate to the infraction charged against him such
that his dismissal was illegal and upheld the Labor Arbiter’s
award to X X X X X of P540,000.00 as back wages and
P350,000.00 as separation pay plus 10% attorney’s fees.

4.27 This, despite the fact that no issue regarding the

propriety or commensurateness of the penalty of
termination vis-à-vis the offense commited by Respondent
X X X X X was ever put in issue during proceedings before
the Labor Arbiter, nor ruled upon by the Labor Arbiter in
his appealed decision nor raised on appeal by herein
Petitioner.

4.28 Petitioner timely filed a Motion for Partial

Reconsideration on 21 March 2016, Aand l;ater a Supplement
to Motion for Partial Reconsideration with Respondent NLRC.
Copies of said pleadings are attached hereto marked as
Annexes “L” and “M” and made integral parts hereof.

4.29 Both pleadings were denied by the Respondent

NLRC in a Resolution dated 31 May 2016 (Annex ‘B” hereof).

4.30 Petitioner received through counsel a copy of said

Resolution on 22 June 2016 such that it had sixty (60) days
from that date – or up to and until 21 August 2016 – within
which to file a petition for certiorari under Rule 65 and
question the propriety of a portion of said Decision and
Resolution.
 4.31 The action of Respondent NLRC being clearly in
grave abuse of its discretion – as will be further discussed
below - Petitioner, has no other plain, speedy and legal remedy
under the law and the Rules other than the instant petition for
certiorari under Rule 65 which is timely filed and for which
Petitioner has paid the requisite docket fees.

V. GROUNDS IN FURTHERANCE OF THE PETITION

Petitioner respectfully submits that the instant petition
should be given due course and resolved in its favor because:

THE RESPONDENT NLRC GRAVELY ERRED AND

ACTED IN GRAVE ABUSE OF ITS DISCRETION IN
RULING ON AN ISSUE WAS NEVER BROUGHT UP ON
APPEAL IN VIOLATION OF SECTION 4 (d), RULE VI
OF THE 2011 NLRC RULES OF PROCEDURE

THE RESPONDENT NLRC GRAVELY ERRED AND

ACTED IN GRAVE ABUSE OF ITS DISCRETION IN
AAFFIRMING THE ACTION OF THE LABOR ARBITER
OF RE-OPENING THE CASE AND ALLOWING
RESPONDENT X X X X X TO FILE HIS POSITION
PAPER IN A MANNER THAT VIOLATED THE 2001
NLRC RULES OF PROCEDURE

THE RESPONDENT NLRC GRAVELY ERRED AND

ACTED IN GRAVE ABUSE OF ITS DISCRETION IN
RULING THAT X X X X X WAS ILLEGALLY DISMISSED
BECAUSE THE PENALTY WAS NOT COMMENSURATE
TO HIS OFFENSE

THE RESPONDENT NLRC GRAVELY ERRED AND

ACTED IN GRAVE ABUSE OF ITS DISCRETION
AFFIRMING THE LABOR ARBITER’S AWARDS OF
BACKPAY AND SEPARATION PAY AMOUNTING TO
P890,000.00

VI. ARGUMENT/DISCUSSION

THE RESPONDENT NLRC GRAVELY ERRED AND

ACTED IN GRAVE ABUSE OF ITS DISCRETION IN
RULING ON AN ISSUE WAS NEVER BROUGHT UP ON
 APPEAL IN VIOLATION OF SECTION 4 (d), RULE VI
OF THE 2011 NLRC RULES OF PROCEDURE

6.1 In the Labor Arbiter’s Decision favorable to

Respondent X X X X X (Annex “I” hereof), he ruled that
Respondent X X X X X was illegally dismissed because of lack
of due process (pp. 5-9 thereof). Nowhere in said Decision is
there a discussion nor ruling that Respondent X X X X X
was illegally dismissed because the penalty imposed on
him was not commensurate to his offense.

6.2 Hence, when herein Petitioner appealed said

Decision to Respondent NLRC, it limited the issues on appeal
to:

THE LABOR ARBITER ACTED WITH BIAS AND

PARTIALITY AND SERIOUSLY ERRED AND ACTED IN
GRAVE ABUSE OF HIS DISCRETION IN GRANTING THE
MOTION TO RE-OPEN AND/OR ADMIT FILED BY X X X
X X, AND THEREAFTER RULING IN HIS FAVOR,
DESPITE THE FACT THAT SAID ACTION/MOTION OF X
X X X X WAS CONTRARY TO THE PROVISIONS OF THE
2011 NLRC RULES OF PROCEDURE AND SHOULD
HAVE BEEN DISMISSED WITH PREJUDICE

THE LABOR ARBITER GRAVELY ERRED AND ACTED

IN GRAVE ABUSE OF HIS DISCRETION IN FINDING
THAT X X X X X WAS ILLEGALLY DISMISSED
BECAUSE THE LABOR ARBITER CONVENIENTLY
OMITTED AND DISREGARDED EVIDENCE SUBMITTED
BY RESPONDENTS-APPELLANTS CLEARLY SHOWING
THAT THERE WAS JUST CAUSE TO TERMINATE X X X
X X AND THAT HE WAS TERMINATED AFTER BEING
AFFORDED PROCEDURAL AND SUBSTANTIAL DUE
PROCESS

THE LABOR ARBITER GRAVELY ERRED AND ACTED IN

GRAVE ABUSE OF HIS DISCRETION IN MAKING
MONETARY AWARDS TO X X X X X FOR FULL
BACKWAGES, SEPARATION PAY, EXEMPLARY
DAMAGES AND ATTORNEY’S FEES
THE LABOR ARBITER GRAVELY ERRED AND ACTED IN
GRAVE ABUSE OF HIS DISCRETION IN FINDING
RESPONDENTS-APPELLANTS WILLIAMS AND SACREZ
LIABLE TO X X X X X DESPITE A CLEAR LACK OF
SHOWING OF ANY MALICIOUS AND/OR OPPRESSIVE
ACTION BY THEM AGAINST X X X X X
and did not put in as an issue the commensurateness of the
penalty of dismissal to his offense of violating company policy
by downloading non-work related software and programs in his
company computer.

6.3 The Respondent NLRC in its questioned Decision

(Annex “A” hereof) impliedly upheld herein Petitioner’s
argument on appeal that it had afforded Respondent X X X X X
due process – contrary to the finding of the Labor Arbiter –
because it did not deny nor rule against the propositions on
which Petitioner had anchored its appeal, viz.:

a. The charges against Respondent X X X X X were

proven/substantiated and were not denied/disproven
by him

b. Respondent X X X X X was given a notice to explain

such that there was compliance with the two notice
rule

c. Respondent X X X X X was afforded procedural due

process, was given the opportunity to be heard thus
amounting to have been given an investigation as he
was given two months to respond/refute the charges
against him

6.4 However, Respondent NLRC ruled in its Decision

(Annex “A” hereof) that Respondent X X X X X was illegally
terminated because the penalty imposed on him, dismissal,
was not commensurate to his offense – an issue that was
never brought up during proceedings before the Labor
Arbiter, an issue that was not a basis for the finding of illegal
dismissal by the Labor Arbiter and most importantly an issue
that was not raised as a basis for the appeal filed by herein
Petitioner.

6.5 The action of the Respondent NLRC on anchoring its

Decision adverse to herein Petitioner on a point that was not
raised on appeal is in violation of Section 4 (d), Rule VII of
the 2011 NLRC Rules of Procedure which states that –

“d) Subject to the provisions of Article 218 of the Labor

Code, 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.” (underscoring and emphasis
ours)

considering that issue of whether or not there was illegal

dismissal - because allegedly the penalty imposed on
Respondent BUOLSAN was not commensurate to his offense –
was not put in issue by Petitioner in it appeal to Respondent
NLRC (Annex “J” hereof).

6.6 In Luna v. Allado Construction Co., Inc., et al.

(supra.) the Supreme Court held that –

“Section 4(c), Rule VI of the 2002 Rules of Procedure of

the NLRC, which was in effect at the time respondents
appealed the Labor Arbiters decision, expressly provided
that, on appeal, the NLRC shall limit itself only to the
specific issues that were elevated for review, to wit:
 
‘RULE VI
Appeals
 
Section 4. Requisites for Perfection of Appeal. x x x.
 
xxxx
 
(c) Subject to the provisions of Article 218, once the
appeal is perfected in accordance with these Rules,
the Commission shall limit itself to reviewing and
deciding specific issues that were elevated on
appeal. (Emphasis supplied.)’
 
As a testament to its effectivity and the NLRCs
continued implementation of this procedural policy, the
same provision was retained as Section 4(d), Rule VI of
the 2005 Revised Rules of Procedure of the NLRC.
 
In the case at bar, the NLRC evidently went against its
own rules of procedure when it passed upon the issue of
illegal dismissal although the question raised by
respondents in their appeal was concerned solely with the
legality of the labor arbiters award of financial assistance
despite the finding that petitioner was lawfully
terminated.
 
To reiterate, the clear import of the aforementioned
procedural rule is that the NLRC shall, in cases of
perfected appeals, limit itself to reviewing those
 issues which are raised on appeal.  As a consequence
thereof, any other issues which were not included in
the appeal shall become final and executory.

x x x x

x x xit is already settled in jurisprudence that the NLRC

may not rely on Article 218(c) of the Labor Code as
basis for its act of reviewing an entire case above and
beyond the sole legal question raised. In Del Monte
Philippines, Inc. v. National Labor Relations
Commission, which was correctly pointed out by the
Court of Appeals as a case that is on all fours with the
case at bar, we held that the NLRC cannot, under the
pretext of correcting serious errors of the Labor
Arbiter in the interest of justice, expand its power of
review beyond the issues elevated by an appellant x x
x” (underscoring and emphasis ours)

6.7 Thus, more than just being grave error and a

violation of its very own 2011 Rules of Procedure, the act of the
Respondent NLRC of ruling adversely against herein Petitioner
on an issue that was not brought up on appeal is grave abuse
of discretion which can and should be corrected by the
Honorable Court of Appeals through the instant Petition.

THE RESPONDENT NLRC GRAVELY ERRED AND

ACTED IN GRAVE ABUSE OF ITS DISCRETION IN
AAFFIRMING THE ACTION OF THE LABOR ARBITER
OF RE-OPENING THE CASE AND ALLOWING
RESPONDENT X X X X X TO FILE HIS POSITION
PAPER IN A MANNER THAT VIOLATED THE 2001
NLRC RULES OF PROCEDURE

6.8 The record also shows that there was no appearance

by Respondent X X X X X nor his counsel during the
preliminary conference of the case which circumstance by itself
was already a ground for the outright dismissal of the instant
complaint in accordance with Section 10, Rule V of the 2011
NLRC Rules of Procedure.

6.9 The complaint of Respondent X X X X X was

dismissed by Labor Arbiter Hernandez on 04 August 2014 on
account of his failure to appear during the scheduled
submission of parties’ position papers on that day while
Petitioner was represented and submitted its position paper
(Annex “E” hereof).
 6.10 Thus, the non-appearance of Respondent X X X X X
during the next hearing and his non-submission of his position
paper – even as herein Petitioner was ready to submit its own
position paper – was proper and valid ground for the dismissal
by the Labor Arbiter of the complaint.

6.11 Respondent X X X X X thereafter sought the re-

opening of the complaint and/or the allowance of his position
paper (Annex “F” hereof) and the Labor Arbiter, without first
affording herein Petitioner the opportunity to comment on
and/or oppose the Motion to Re-open of Respondent X X X X X
(Annex “F” hereof) , issued an Order on 22 August 2014 (Annex
“G” hereof) granting his Motion to Re-open.

6.12 The granting by the Labor Arbiter of REspondent X

X X X X’s Motion to Re-open was in gross violation of the 2011
NLRC Rules of Procedure because said Motion to Re-open did
not conform to the requirements of such a motion to re-open
his labor complaint that had been dismissed.

6.13 Section 20, Rule V of the 2011 NLRC Rules of

Procedure provides that –

“SECTION 20. REVIVAL AND RE-OPENING OR RE-

FILING OF DISMISSED CASE and LIFTING OF WAIVER. -
A party may file a motion to revive or re-open a case
dismissed without prejudice, within ten (10) calendar
days from receipt of notice of the order dismissing
the same; otherwise, the only remedy shall be to re-file
the case. 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, 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.”
(underscoring and emphasis ours)

6.14 An examination of Respondent X X X X X’s Motion

to Re-Open and/or Admit (Complainant’s Position Paper)
(Annex “F” hereof) clearly shows that:

a. there is no showing therein that it was filed within ten

(10) days from receipt of a copy of the order/resolution
dismissing the instant complaint; as it is, there is no
statement nor indication therein as to when Respondent
X X X X X’s counsel actually received a copy of the
 order/resolution dismissing the instant complaint such
that from the contents of the pleading it cannot be seen
that the said Motion was timely filed and in accordance
with Section 20, Rule V of the 2011 NLRC Rules of
Procedure

b. anent the admission of Respondent X X X X X’s position

paper, his Motion is not under oath as is required by
Section 20, Rule V of the 2011 NLRC Rules of Procedure

c. there is no actual nor proper showing that the failure of

Respondent X X X X X and/or his counsel to appear and
to submit his position paper was due to justifiable and
meritorious grounds; his counsel’s allegation of “oversight
and excusable negligence” is vague, unelaborated and
cannot suffice to justify the admission of his position
paper

6.15 Respondent X X X X X’s Motion to Re-open and/or

Admit (Complainant’s Position Paper) having been filed in
contravention of Section 20, Rule V of the 2011 NLRC Rules of
Procedure, its outright denial by the Labor Arbiter was proper
and warranted.

6.16 The record will show that despite such glaring

violations of Section 20, Rule V of the 2011 NLRC Rules of
Procedure, the Labor Arbiter granted Respondent X X X X X’s
Motion to Reopen and allowed him to file his position paper.

6.17 The action of the Labor Arbiter of granting a

procedurally and substantially defective Motion to Re-open
which, under the 2011 NLRC Rules of Procedure, should have
been denied outright, and his subsequent ruling in favor of
Respondent X X X X X was not only manifest bias and
partiality towards him but is, worse, grave abuse of discretion
that herein Petitioner raised on appeal but that the
Respondent NLRC affirmed.

6.18 The affirmation by Respondent NLRC of the action of

the Labor Arbiter of allowing the re-opening of the complaint
and of allowing Respondent X X X X X to file his position paper
– in a manner that was totalling in violation of Section 20,
Rule V of the 2011 NLRC Rules of Procedure was not only
grave error and violation of its very own Rules of Procedure but
is grave abuse of its discretion which can and should be
corrected by the Honorable Court of Appeals through the
instant Petition.
 THE RESPONDENT NLRC GRAVELY ERRED AND
ACTED IN GRAVE ABUSE OF ITS DISCRETION IN
RULING THAT X X X X X WAS ILLEGALLY DISMISSED
BECAUSE THE PENALTY WAS NOT COMMENSURATE
TO HIS OFFENSE

6.19 Respondent NLRC, apart from acting in violation of

Section 4 (d), Rule VI of its 2011 Rules of Procedure by ruling
on an issue not raised in the appeal – that the penalty of
dismissal was not commensurate to the offense charged – also
gravely erred and acted in grave abuse of its discretion in
ruling that Respondent X X X X X was illegally terminated
because his dismissal was not commensurate/proportionate to
his offense because in so ruling, Respondent NLRC totally
disregarded, failed and/or refused to consider material facts
that clearly showed that dismissal was the proper penalty
meted to Respondent X X X X X.

6.20 Respondent X X X X X had installed, without

company authorization, computer software and games on his
office laptop in violation of company policy which was effected
in order to prevent the intrusion of malware and harmful
computer viruses into the company computer systems.

6.21 Such malware and computer viruses had they made

their way into the company’s computer systems would have
disrupted company operations and would have required a total
clean-up of the company’s computer systems both of which
would cost the Petitioner a considerable amount of money.

6.22 Respondent X X X X X, being a project manager,

and thus a managerial employee, was very well aware of the
company policy and the rationale for it but, despite this,
violated such policy and his refusal to present his side on the
matter - despite having been given on 01 March 2014 a Notice
to Explain– amounts to an admission of such violation.

6.23 Respondent NLRC gravely erred in failing/refusing

to consider that Respondent X X X X X was a managerial
employee because this distinction is very important as
jurisprudence provides an employer has a distinct prerogative
and wider latitude of discretion in dismissing a managerial
personnel who performs functions which by their nature
require the employer’s full trust and confidence.
 6.24 As distinguished from a rank and file personnel,
mere existence of a basis for believing that a managerial
employee has breached the trust of the employer justifies
dismissal. (cf. Reyes-Rayel v. Philippine Luen Thai Holdings
Corp./ L & T  International Group Philippines, Inc., G.R.
No. 174893, 11 July 2012)

6.25 For managerial personnel, the existence of such

single just cause is enough to justify his dismissal from
employment (cf. KAKAMPI and ITS MEMBERS, et al. v.
Kingspoint Express and Logistic, et al., G.R. No. 194813,
25 April 2012)

6.26 As regards a managerial employee, the mere

existence of a basis for believing that such employee has
breached the trust of his employer would suffice for his
dismissal. Hence, in the case of managerial employees, proof
beyond reasonable doubt is not required, it being sufficient
that there is some basis for such loss of confidence, such as
when the employer has reasonable ground to believe that the
employee concerned is responsible for the purported
misconduct, and the nature of his participation therein
renders him unworthy of the trust and confidence demanded
of his position (Triumph International (Phils.), Inc. v.
Apostol, G.R. No. 164423, 16 June 2009)

6.27 The Respondent NLRC, in ruling that Respondent X

X X X X’s admitted offense did not merit the penalty of
dismissal, did not take these facts, arguments and
jurisprudence into consideration and failed to understand how
such a innocent-looking violation of company rules could have
terribly adverse consequences to the Respondent-Appellant.

6.28 The Respondent NLRC in so ruling, seems to be

totally unaware of how a single computer virus or malware
can totally wipe out a company’s computer systems and
disrupt company operations to the point of causing
considerable financial loss to the company.

6.29 Herein Petitioner, in its Motion for Partial

Consideration (Annex “L” hereof) attached articles showing
how improper use of company computers by employees –
including indiscriminate downloading of computer programs
for personal use - can be dangerous to company computer
systems and can result in costly damage to them.
 6.30 That Respondent X X X X X was a project
manager by itself amplifies the gravity of his violation of
company policy considering that it set a bad example for other
employees who could have likewise imitated him and also
downloaded computer programs on the company’s computers
for their own personal use and putting the company computer
systems at risk also.

6.31 Respondent X X X X X’s being a project manager

and his having violated company policy – that put the company
computer systems at risk - also serves to justify his
termination for breaching the trust and confidence reposed on
him by the Petitioner.

6.32 Furthermore, while Respondent X X X X X was

terminated for illegally downloading computer programs into a
company computer, it is of record that he had committed other
infractions before, i.e.:

a. shouting and uttering insulting and foul language at

the company general manager

b. shouting and uttering curses in the company’s site

office

c. failure to regularly attend the coordination meeting

with a project client, HCC

d. sleeping while on duty

e. Causing others to fail in observing company quality

systems and procedures

and while he was not terminated because of those past

infractions, those violations necessarily eroded his employer’s
trust and confidence in him until he downloaded programs into
his company laptop in violation of company policy which was
the proverbial last straw that broke the camel’s back and
totally destroyed Petitioner’s trust and confidence in him as a
managerial employee.

6.33 Hence, while jurisprudence provides that a mere

existence of a basis for believing that a managerial employee
has breached the trust of the employer justifies dismissal. (cf.
Reyes-Rayel v. Philippine Luen Thai Holdings Corp./ L & T
International Group Philippines, Inc., G.R. No. 174893, 11
July 2012) and the existence of such single just cause is
enough to justify his dismissal from employment (cf.
KAKAMPI and ITS MEMBERS, et al. v. Kingspoint Express
and Logistic, et al., G.R. No. 194813, 25 April 2012) and
that proof beyond reasonable doubt is not required, it
being sufficient that there is some basis for such loss of
confidence, (Triumph International (Phils.), Inc. v. Apostol,
G.R. No. 164423, 16 June 2009), in Respondent X X X X X’s
case, there is not only one documented and proven cause for
his dismissal for violation of company policy leading to loss of
trust and confidence but several albeit prior violative acts that
altogether gave rise to loss of trust and confidence thus
justifying his termination.

6.34 Thus, not only was his act of illegally downloading

programs into a company computer not a simple or
insignificant offense that warranted a penalty lighter than
termination – because such infraction exposed company
operations to potentially dire consequences - it was also the
last in a string of violations of company rules by Respondent X
X X X X as a managerial employee that led to a total loss of
trust and confidence that further justified his termination for
cause.

6.35 In Mapili v. Philippine Rabbit Bus Lines, Inc., et

al. (G.R. No. 172506, 27 July 2011) the Supreme Court hled
that:

“An employees propensity to commit repetitious

infractions evinces wrongful intent, making him
undeserving of the compassion accorded by law to labor.
x x x x

x x x it is quite apparent that petitioner was aware that

the infraction he committed constituted a grave offense
but he still persisted in committing the same out of
gratitude to the passenger. Hence, as correctly found by the
CA, there was deliberate intent on the part of the
petitioner to commit the violation in order to repay a
personal debt at the expense of the company. Petitioner
chose to violate company rules for his benefit without
regard to his responsibilities to the company. x x x
 
It bears stressing that petitioner has been in the employ of
PRBLI for more than eight years already and is a member of
the company’s labor union. As such, he ought to know the
specific company rules pertaining to his line of work as a
bus conductor. For that matter, his length of service has
even aggravated the resulting consequences of his
transgressions. In addition, on April 8, 1994 and May 3,
1995, he committed similar infractions of extending free
ride to a police officer and a former employee,
respectively. These had been brought to the attention of
the petitioner and for which the penalties of relief from
duty and suspension were meted out upon him. Hence,
he ought to have known better than to repeat the same
violation as he is presumed to be thoroughly acquainted with
the prohibitions and restrictions against extending free rides.
We also cannot agree with petitioners contention that
his infraction was trivial. As a bus conductor whose duties
primarily include the collection of transportation fares, which
is the lifeblood of the PRBLI, petitioner should have exercised
the required diligence in the performance thereof and his
habitual failure to exercise the same cannot be taken for
granted. As correctly observed by the CA, petitioners
position is imbued with trust and confidence because it
involves handling of money and failure to collect the proper
fare from the riding public constitutes a grave offense
which justifies his dismissal. Moreover, petitioners series
of irregularities when put together may constitute
serious misconduct.
 
x x x x
 
 
Petitioners past infractions can be gleaned from his
employment record of offenses which was presented by
the respondents. This piece of evidence was not
disputed by petitioner. Hence, petitioner cannot claim
that the finding of his past company infractions was
based merely on allegations.

 As petitioners employment record shows, this is not the
first time that petitioner refused to collect fares from
passengers. In fact, this is already the third instance that he
failed to collect fares from the riding public. Although
petitioner already suffered the corresponding penalties
for his past misconduct, those infractions are still
relevant and may be considered in assessing his liability
for his present infraction. We thus held in Philippine
Rabbit Bus Lines, Inc. v. National Labor Relations Commission
that:
  
‘Nor can it be plausibly argued that because the
offenses were already given the appropriate
sanctions, they cannot be taken against him. They
are relevant in assessing private respondents
liability for the present violation for the purpose of
determining the appropriate penalty. To sustain
private respondents argument that the past
violation should not be considered is to disregard
the warnings previously issued to him.’
 
As suspension may not anymore suffice as penalty for
the violation done as shown by petitioners disregard of
previous warnings and propensity to commit the same
infraction over the years of his employment, and to
deter other employees who may be wont to violate the
same company policy, petitioners termination from
employment is only proper.” (underscoring and emphasis
ours)

6.36 Considering all the foregoing - the rationale for the

company policy violated by Respondent X X X X X, his
admission by silence of violation of such policy, the adverse
consequences sought to be averted by such policy, his being a
managerial employee and the trust and confidence he violated
as a result of his offense - it cannot be, as the the Respondent
NLRC has ruled, that the penalty imposed on X X X X X for
violating such company policy was not commensurate to the
offense he committed.

6.37 The deletion by the Respondent NLRC of the award

of exemplary damages is further showing that Respondent X X
X X X’S dismissal was legal and proper and that the penalty
imposed on him was correct.

6.38 Exemplary damages may be awarded only if the

dismissal was affected in a wanton, oppressive or
malevolent manner (cf. C & A Construction Co., Inc. v.
NLRC, 318 SCRA 784).

6.39 By deleting the award of exemplary damages to

Respondent X X X X X, it is respectfully submitted that the
Respondent NLRC recognized that his termination was proper,
lawful and fair and this contradicts its finding in its 26
February 2016 Decision (Annex “A” hereof).
 6.40 It is thus respectfully submitted that the rulings of
the Respondent NLRC questioned in the instant Petition
(Annexes “A” and “B” hereof) are acts in grave abuse of
discretion in ruling that Respondent X X X X X was illegally
terminated as the penalty was not commensurate to the
offense because in so ruling, the Respondent NLRC totally
disregarded material facts and jurisprudence that, had it so
considered such facts and jurisprudence, would have had it
rule otherwise and in favor of herein Petitioner (cf.
Commissioner of Customs v. Geronimo, 80 SCRA 74; Vda.
De Bacang v. Court of Appeals,125 SCRA 137).

6.41 Such acts in grave abuse of discretion can and

should be corrected by the Honorable Court of Appeals.

THE RESPONDENT NLRC GRAVELY ERRED AND

ACTED IN GRAVE ABUSE OF ITS DISCRETION
AFFIRMING THE LABOR ARBITER’S AWARDS OF
BACKPAY AND SEPARATION PAY AMOUNTING TO
P890,000.00

6.42 Having not only gravely erred in ruling that

Respondent X X X X X was illegally terminated, it necessarily
follows that the Respondent NLRC’s affirmation of the award of
Respondent X X X X X’s claim for backpay and separation pay
are also reversible error.

6.43 Since, from the foregoing, it is very clear that

Respondent X X X X X was properly and validly terminated
for cause, then there is no factual nor legal basis for the Labor
Arbiter’s award of full backwages of P540,000.

6.44 Considering that, as has been shown above, the

termination of Respondent X X X X X was valid, legal and for
justifiable cause, the award by the Labor Arbiter of separation
pay in the amount of P340,000.00 has no factual nor legal
basis because it is basic in labor law that employees who are
terminated for just cause are not entitled to separation pay.

6.45 As ruled by the Supreme Court in the recent case of

Apacible v. Multimed Industries, Inc., et al. (G.R. No.
178903, 30 May 2011) -

The law is clear. Separation pay is only

warranted when the cause for termination is not
attributable to the employee’s fault, such as those
provided in Articles 283 and 284 of the Labor Code, as
 well as in cases of illegal dismissal in which reinstatement
is no longer feasible. It is not allowed when an
employee is dismissed for just cause, such as serious
misconduct.
xxxx
the award of financial assistance shall not be given to
validly terminated employees, whose offenses are
iniquitous or reflective of some depravity in their
moral character. When the employee commits an act
of dishonesty, depravity, or iniquity, the grant of
financial assistance is misplaced compassion. It is
tantamount not only to condoning a patently illegal
or dishonest act, but an endorsement thereof. It will
be an insult to all the laborers who despite their
economic difficulties, strive to maintain good values
and moral conduct.
In fact, in the recent case of Toyota Motors Philippines,
Corp. Workers Association (TMPCWA) v. National Labor
Relations Commission, we ruled that separation pay
shall not be granted to all employees who are
dismissed on any of the four grounds provided in
Article 282 of the Labor Code. x x x (underscoring and
emphasis ours)

6.46 Anent the award of attorney’s fees, it being clear

from all the foregoing that there is no factual nor legal basis for
Respondent X X X X X’s complaint for illegal dismissal, the
award to him of attorney’s fees should be reversed and
nullified as he should bear the burden the costs and expenses
of such a baseless and frivolous suit.

6.47 Hence, the ruling of the Respondent NLRC affirming

the Labor Arbiter’s awards of backpay, separation pay and
attorney’s fees are all without any factual or legal basis and
are acts in grave abuse of discretion of the Respondent NLRC
that the Honorable Court of Appeals can and should correct

VII. ALLEGATIONS IN SUPPORT OF THE PRAYER FOR

THE ISSUANCE OF A TEMPORARY RESTRAINING
ORDER AND/OR A WRIT OF PRELIMINARY
INJUNCTION

Petitioner reiterates all the foregoing and in support of its

prayer for the issuance of a temporary restraining order
and/or a writ of preliminary injunction respectfully states that:
 7.1 Petitioner has deposited a bond – in cash and by
way of surety – in the total amount of P890,000.00 with the
Respondent NLRC as a requisite for its appeal.

7.2 Under the 2011 NLRC rules of Procedure, a Decision

of the said agency becomes final after fifteen (15) days from
receipt of a party and, after a certificate of final judgment is
rendered thereby, said deposited amount may be made subject
of execution by the prevailing party upon motion filed with the
Labor Arbiter.

7.3 The 2011 NLRC Rules of Procedure do not provide a

remedy for a party with the Respondent NLRC - who contests
a ruling thereof by way of certiorari to the Honorable Court of
Appeals – to prevent execution on the bond in the meantime.

7.4 Herein Petitioner, has no other remedy or relief

other than a temporary restraining order and/or a writ of
preliminary injunction issued by the Honorable Court of
Appeals to stay execution on its bond which, if effected, will not
only render moot whatever favorable ruling it may be able to
obtain from the Honorable Court of Appeals but- worse – will
cause it irreparable injustice, injury and harm considering
that it, realistically, will have no recourse in thereafter
recovering any and all amounts obtained by Respondent X X X
X X by way of execution.

7.5 Respondent X X X X X is merely awaiting an entry of

finality of judgment by respondent NLRC in order to seek
execution on the appeal bond deposited by herein Petitioner for
satisfaction of judgment and will do so as the opportunity
presents itself.

7.6 Thus, it is urgent and necessary that, upon the

filing of the instant Petition, the Honorable Court of Appeals
immediately issue a temporary restraining order and/or a writ
of preliminary injunction to enjoin/bar Respondent X X X X X,
the Labor Arbiter or his sheriff from executing upon the
P890,000 appeal bond deposited by the Petitioner by the NLRC
while the instant Petition is pending resolution.

7.7 Petitioner is willing and able to post a bond to

secure any temporary restraining order or injunctive writ that
the Honorable Court of Appeals may issue in its favor.

PRAYER
 WHEREFORE, above premises considered, it is
respectfully prayed of the Honorable Court of Appeals that:

1. Immediately upon the filing of the instant Petition, it

issue a temporary restraining order against the
Respondent NLRC, Respondent X X X X X, the Labor
Arbiter and its sheriff, enjoining and prohibiting any
and all of them from executing and obtaining
satisfaction of judgment from the P890,000 bond
deposited by the Petitioner with the Respondent NLRC
until final resolution of the instant Petition is
rendered.

2. After due hearing, it issue a writ of preliminary

injunction against the Respondent NLRC, Respondent
X X X X X, the Labor Arbiter and its sheriff, enjoining
and prohibiting any and all of them from executing and
obtaining satisfaction of judgment from the P890,000
bond deposited by the Petitioner with the Respondent
NLRC until final resolution of the instant Petition is
rendered.

3. After due hearing, it grant the instant petition by:

a. Reversing, dismissing and setting aside the Decision

of Respondent NLRC in NLRC LAC NO. X X X X
dated 26 February 2016 and the Resolution dated
31 May 2016 (Annexes “A” and “B” hereof)

b. Reversing, dismissing and setting aside the Decision

of Labor Arbiter Renaldo Hernandez in NLRC Case
No. X X X X

c. upholding as valid the dismissal of X X X X X from

his employment; and,

Respondent-Appellant prays for other just and equitable

reliefs.

Makati City for Quezon City. 28 June 2016

XXXX
Counsel for the Petitioner _________________
Roll of Attorney’s No. X X X X
PTR No. X X X X
 IBP OR No. X X X
MCLE Comp. No. X X X X
___________________________________
_____________________________________
Tel. No.: _____________ e-mail: ________________

EXPLANATION

Due to time and distance constraints and on account of

the heavy delivery schedule of his process server, undersigned
counsel for Petitioner caused service of copies the foregoing
pleading on the Solicitor General, the NLRC and Respondent
X X X X X’s counsel by registered mail.

In compliance with the Rule on Efficient Use of Paper, the

copy furnished Respondent X X X X X’s counsel was without
annexes except Annexes A, B and C.

PAUL JOMAR S. ALCUDIA

COPY . . .

. . . FURNISHED (BY REGISTERED MAIL):

NLRC
______________________________________
______________________________________

OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo St., Legaspi Village
Makati City

BENIPAYO & PARTNERS LAW OFFICE

3rd Floor HR Building
43 Mindanao Avenue, Quezon City