REPUBLIC OF THE PHILIPPINES
NATIONAL LABOR RELATIONS COMMISSION
FOURTH DIVISION
Cebu City
JOEL SACAY, FATIMA LANGOYAN,
NLRC CASE NO. V-000197-2007
ROEUL B. SALA, MYRASO ENTROLEZO, [NLRC RAB-VII- 02-0362-06,
ARNEL RUBITE, ALDRIN PUNAY, LITO 03-0529-06,
MOZO. 03-0869-06, &
03-0721-06]
Complainants-
Appellants,
-versus-
WORK IDEAS AND SERVICES, INC.,
KANG CHOK AGENCY, BEST INN HOTEL,
MERLINDA ALVARES, JESUS KING
Respondents-Appellees.
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MOTION FOR RECONSIDERATION
COME now complainants-appellants, through the undersigned
counsel, most respectfully moves for the reconsideration of the Honorable
Commission’ Decision dated November 11, 2007, based on the following:
GROUND:
1. THAT THE DECISION OF THE HONORABLE COURT IS
CONTRARY TO ESTABLISHED SUPREME COURT DOCTRINES
ASIDE FROM THE FACT THAT THAT THE FINDINGS THEREON
ARE CONTRADICTED BY THE RECORDS OF THE CASE.
ARGUMENTS AND DISCUSSIONS:
With all due respect, the Decision dated November 11, 2007 made a
mistake in declaring that the complainants appellant were dismissed on
January 26, 2007.
The records of the case clearly indicates that they were prevented
from performing their specific work assignments on said January 26, 2007.
The contention of the respondents-appellants was that there was a letter
[Exhibits “7” and “8” of respondent Kang Chok’s Position Paper], purportedly
to establish that complainants were recalled by KANG CHOK.
The said letter is purely self-serving malicious and fraudulent lies and
to claim so is tantamount to being reckless on the part of KANG CHOK. A
mere perusal over the said “Memoranda” would readily reveal that they are
addressed to the Kang Chok and Dalunan Management Services,
respectively. They were neither addressed to the complainant nor were the
complainants served with copies of the same.
If a person wishes to recall Pedro, does addressing a Memorandum to
Juan serve the purpose?. The answer is a big No.
The Honorable Commission also failed to appreciate certain relevant
facts with was narrated in the complainant-appellant’s Memorandum,
which is worth repeating, to wit:
The cases before the Regional Arbitration branch, was, at first
individually docketed but was later on ordered consolidated by the
Honorable Labor Arbiter, in an Order dated, April 21, 2006.
It is worth stressing that the faithful date wherein the complainants –
appellants were prevented from going to work is January 25, 2006. Some of
the individual complainants filed their complaints as early as February
2006. Thus, mandatory Preliminary conferences were conducted, the first
being as early as February 2006. As a matter that can be verified by the
records of the instant case, another Preliminary Conference was conducted
on March 14, 2006, Atty. Alvarez arrived late for the scheduled preliminary
conference, thus the complainants and the undersigned confronted Atty.
Alvarez at the lobby wherein the complainants inquired about the amount
that Kang Chok was willing to offer. The latter just informed the
complainant that there was no offer to speak of and that the Parties will just
manifest to Honorable Julie Rendoque that they will just file their respective
Position Papers. During those meetings, Atty. Alvarez never mentioned nor
even hinted that the complainants are to return to their work.
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The other cases that was filed after Sacay, et al, were ordered
consolidated [at the instance of Kang Chok, through Atty. Deolito Alvarez
and Atty Arlan Richard Alvarez} and thereafter two preliminary conferences
were conducted, the last being April 27, 2006, this time none of
respondents or their counsel appeared as only the complainants appeared.
The foregoing allegation was never denied by the respondents, hence they
are deemed indubitable facts and must be heavily considered by the
Honorable Commission.
After the last mandatory preliminary conference with respect
to other complainants-appellant Aldrin Punay, Lito Mozo, Arnel Rubite
and Arnel Patalinghug, Atty. Arlan Richard Alvares failed to attend, the
clerk of Arbiter Rendoque just told the parties to submit their position
paper to be reckoned from the date of the receipt of the Arbiter’s Order.
During the interim, Atty. Richard Alvarez file four(!) (4) Motion for
Extentions, the first one dated May 26, 2006, the second, June 5,
2006, the third dated June 15, 2006 and the fourth dated June 23,
2006.
The fact that Atty, Richard Arlan Alvarez filed those four Motion
for Extension is very important to note because during those times, or
as of June 23, 2006, almost five (5) months have elapsed since the
complaints were dismissed illegally. During those times, complainants
never heard a single word from respondents.
During those times, the complainants were already waiting for
the decision of the labor case pending before Labor Arbiter Julie
Rendoque.
In deliberate attempt by the respondent to frustrate the claims of
the complainants and to muddle the issues, respondent Kang Chok
sent letters to complainants except Entrolezo requiring their presence
on June 24, 2006. The said letters were all dated May 31, 2006,
however, they were mailed only on June 19, 2006.
THE BIG QUESTION NOW IS WHAT HAPPENED DURING ALL
THOSE TIMES FROM JANUARY 25, 2006 UP TO JUNE 19, 2006,
OR FOR A PERIOD OF FOUR (4) MONTHS AND TWENTY SIX (26)
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DAYS.
What took the respondents to long when they know all along that
a labor case was already pending before Labor Arbiter Julie Rendoque.
The decision of the Honorable Commission is also contrary of the
series of Supreme Court Decisions as follows, to wit:
In the case of PEDRO CHAVEZ, versus NATIONAL LABOR
RELATIONS COMMISSION [Jan 17, 2005, G.R. No. 146530], the Supreme
Court also held as follows, to wit:
“Having established that there existed an employer-
employee relationship between the respondent company and the
petitioner, the Court shall now determine whether the respondents
validly dismissed the petitioner.”
“As a rule, the employer bears the burden to prove that the
dismissal was for a valid and just cause. In this case, the
respondents failed to prove any such cause for the petitioner’s
dismissal. They insinuated that the petitioner abandoned his job.
To constitute abandonment, these two factors must concur: (1) the
failure to report for work or absence without valid or justifiable
reason; and (2) a clear intention to sever employer-employee
relationship. Obviously, the petitioner did not intend to sever his
relationship with the respondent company for at the time that he
allegedly abandoned his job, the petitioner just filed a complaint
for regularization, which was forthwith amended to one for illegal
dismissal. A charge of abandonment is totally inconsistent with
the immediate filing of a complaint for illegal dismissal, more so
when it includes a prayer for reinstatement.
In the case of GSP MANUFACTURING CORPORATION versus
PAULINA CABANBAN [2006 Jul 14, G.R. No. 150454], the Supreme Court
likewise, ruled, to wit:
“We would like to reiterate some salient points laid down
in our prior pronouncements concerning abandonment of
employment. Abandonment as a just ground for dismissal
requires the deliberate, unjustified refusal of the employee to
perform his employment responsibilities. Mere absence or failure
to work, even after notice to return, is not tantamount to
abandonment. The records are bereft of proof that petitioners
even furnished respondent such notice.”
“Furthermore, it is a settled doctrine that the filing of a
complaint for illegal dismissal is inconsistent with abandonment
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of employment. An employee who takes steps to protest his
dismissal cannot logically be said to have abandoned his work.
The filing of such complaint is proof enough of his desire to
return to work, thus negating any suggestion of abandonment.
Clearly, petitioners’ claim that respondent’s complaint was
“an afterthought,” having been filed a long time after the date of
the supposed abandonment, was utterly without merit. As the
Court of Appeals correctly pointed out, citing the case of Pare v.
NLRC, respondent had four years within which to institute her
action for illegal dismissal. Compared to the six months it took
the aggrieved employee in that case to file his complaint for
illegal dismissal, respondent’s 84 days was not unreasonably
long at all.
Also, in the case of HODIENG CONCRETE PRODUCTS versus DANTE
EMILIA, [ 2005 Feb 14, G.R. No. 149180], the Supreme held, to wit:
“In this petition, the issue posed is whether the Court of
Appeals erred in holding that respondent was illegally dismissed
and that petitioners failed to prove by substantial evidence that
he abandoned his work.”
“The rule is that before abandonment can be considered a
valid cause for dismissal, there must be a concurrence of the
intention to abandon and some overt acts from which an
employee may be deduced as having no more intention to work.”
In Samarca vs. Arc-Men Industries, Inc., we held:
“x x x. Absence must be accompanied by overt acts
unerringly pointing to the fact that the employee simply does not
want to work anymore. And the burden of proof to show that
there was unjustified refusal to go back to work rests on the
employer.
xxx
Abandonment is a matter of intention and cannot lightly
be presumed from certain equivocal acts. To constitute
abandonment, there must be clear proof of deliberate and
unjustified intent to sever the employer-employee relationship.
Clearly, the operative act is still the employee’s ultimate act of
putting an end to his employment.
Settled is the rule that mere absence or failure to report for
work is not tantamount to abandonment of work. x x x.”
In this case, no such intent to abandon his work can be
discerned from respondent’s actuations. Neither are there overt
acts which could be considered manifestation of his desire to
abandon his work. On the contrary, respondent’s actions
demonstrate a desire on his part to continue his employment
with petitioners rather than to abandon it.
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As observed by the Appellate Court, if respondent had
truly forsaken his job, he would not have bothered to file a
complaint for illegal dismissal against petitioners. Indeed, the
filing of the complaint for illegal dismissal negates the allegation
of abandonment.
Thus, we find that respondent did not abandon his job but
was illegally dismissed by petitioners.
Further, in the case of MICRO SALES OPERATION NETWORK versus
THE NATIONAL LABOR RELATIONS COMMISSION [2005 Oct 11, G.R. No.
155279], the Supreme Court held, to wit:
“De Castro was likewise unlawfully terminated. Contrary to
petitioner’s claim, records show that de Castro was not merely
suspended. He was dismissed for alleged abandonment of work.
To constitute abandonment as a just cause for dismissal, there
must be: (a) absence without justifiable reason; and (b) a clear
intention, as manifested by some overt act, to sever the employer-
employee relationship.
Petitioners failed to prove that de Castro abandoned his job.
A clear intention to end the employer-employee relationship is
missing. He did not report for work simply because he was
indefinitely suspended. Moreover, the fact that de Castro filed a
case for illegal dismissal against petitioners belies abandonment.
In the case of Basinillo, petitioners rely solely on his
purported unsworn statement alleging he was never dismissed.
However, not having been sworn to, the said document has no
probative value. While the Court is liberal in the conduct of
proceedings for labor cases, proof of authenticity as a condition for
the admission of documents is nonetheless required.
Petitioners failed to present evidence of Basinillo’s
continuous contribution to SSS or uninterrupted pay slips to prove
he remained under the company’s employ. Hence, the
complaint[23] for illegal dismissal filed by Basinillo stands and
speaks for itself. Once a case for illegal dismissal is filed, the
burden is on the employer to prove that the termination was for
valid cause. Petitioners failed to discharge this burden
persuasively.
WHEREFORE, in view of the foregoing, it is most respectfully prayed
of this Honorable Court to reconsider its decision dated November 11, 2007
and in lieu thereof render judgment reversing the ruling of the Labor Arbiter
Julie Rendoque declaring complainants-appellants as having been illegally
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dismissed and to order the respondents-appellees to pay their money claims
pf the complainants-appellant.
It is also prayed that the respondents-appellees should also be
condemned to pay damages and attorney’s fees.
Respectfully submitted, January 23, 2008.
ATTY. FRANCIS GEORGE F. DINOPOL
Counsels for the Complainants-Appellants
Suites 201-205, SRA Building
54 D. Jakosalem Street, Cebu City
Roll of Attorneys Number 50084
PTR No. 3613379, 01-10-2008 Cebu Capitol
IBP No. 732319, 01-07-2008, Cebu Chapter
NOTICE:
THE CLERK IN CHARGE
NLRC 4th DIVISION, Cebu City
Please take submit the foregoing Motion for the consideration of the
Honorable Commission immediately upon receipt hereof.
FRANCIS GEORGE F. DINOPOL
Copy furnished:
Atty. Deolito Alvarez
Atty. Arlan Richrds S. Alvarez
9th Foor, Cebu holdings Center
Cebu Business Park, Cebu City
ATTY. NILO G. AHAT
3rd Floor Unit 25
The Atrium TownHouses,
Andres Abellana Ext., Guadalupe,
Cebu City
ATTY. TEDDY II PIACIDAD
UNIT 507, CEBU HOLDINGS CENTER
CARDINAL ROSALES AVENUE
CEBU BUSINESS PARK, AYALA
Hon. Julie Rendoque
NLRC-RAB-VII
3RD Floor LBF Building
J. Llorente St. Cor Osmena Blvd.
Cebu Ciy
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EXPLANATION
A copy of the foregoing was sent to the Atty. Arlan Richard Alvarez at
his given address by registered mail due to distance which renders personal
service impractical and expensive.
