Republic of the Philippines

COURT OF APPEALS
MANILA

CANOY, YEN WARREN P.

Petitioner,
-versus-

THE NATIONAL LABOR RELATIONS

COMMISSION (FIFTH DIVISION),
LABOR ARBITER LUDIVINA I. UBIÑA-
TAGUINOD, SM DEVELPOMENT
CORPORATION, AND JOSE MARI
BANZON,
Respondents.
x----------------------------------------------------------x

PETITION FOR CERTIORARI

PETITIONER YEN WARREN P. CANOY, by himself, unto this

Honorable Court, respectfully submits this Petition for Certiorari.

I.THE PARTIES

1. Petitioner YEN WARREN P. CANOY, is of legal age, with

present address at Km.12 Merville Access Road, Pasay City.

2. Public respondent NATIONAL LABOR RELATIONS

COMMISSIONS, FIFTH DIVISION, is impleaded herein being a quasi-
judicial body which rendered the assailed Decision and Resolution
which are the subject of this petition. It may be served with pleadings,
orders, notices and other court processes at its office in Quezon City.

3. Respondent SM DEVELOPMENT CORPORATION is a

corporation duly organized and existing under Philippine laws. It may
be served with pleadings, orders, notices and other court processes
through the undersigned counsel at its address indicated herein
below.

4. Respondent JOSE MARI BANZON is impleaded for being the

President/Manager responsible for the illegal dismissal of petitioner. It
may be served with pleadings, orders, notices and other court
processes through the undersigned counsel at its address indicated
herein below.

5. Respondent LUDIVINA I. UBIÑA-TAGUINOD, (the “Labor

Arbiter”) may be served with pleadings, orders, notices and other
court processes at NLRC, Quezon City.

II. NATURE OF THE PETITION

1. This Petition for Certiorari under Rule 65 of the Rules of Court

assailing the decision of the NATIONAL LABOR RELATIONS
COMMISSION (NLRC for brevity) Fifth Division dated 31 July
2023 dismissing petitioner’s appeal.

2. On 18 May 2023, petitioner filed a Motion for

Reconsideration of respondent NLRC’s assailed decision
 dated 31 July 2023. On 09 January 2024, petitioner received
the assailed Resolution dated 29 December 2023 of
respondent NLRC denying its Motion for Reconsideration.

3. That petitioner is now assailing the propriety of the NLRC

decision in dismissing the motion and hereby raises pure
questions of law, considering that there is no plain, speedy,
and adequate remedy available in the ordinary course of
law- hence, this petition;

III. TIMELINESS OF THE FILING OF THE PETITION

1. Thus, petitioner has until 09 March 2024 within which to file

this Petition for Certiorari. However, since 09 March 2024 falls on
weekend, petitioner had until the next working day, or on 11 March
2024 within which to file this Petition for Certiorari.

2. Hence, this Petition is filed within the period provided for

under Section 4, Rule 65, as amended, of the 1997 Rules of Civil
Procedure.

IV. ATTACHMENTS

In compliance with Revised Circular 1-88, the following

documents and attachments are made integral part of the foregoing
Petition for Certiorari, viz:

1. Annex “A”- Decision NLRC dated 31 July 2023.

2. Annex “B” - Denied Motion for Reconsideration by NLRC

dated 29 December 2023.
 V. STATEMENT OF THE FACTS AND CASE

1. Petitioner was hired as an ASSOCIATE SALES DIRECTOR 1. His

accreditation shall be valid and binding for Six (6) Months, beginning
May 16, 2021 until November 25, 2021. As such, his duty was to monitor,
track, and evaluate sales and sales documentation compliance by
the buyers of this Company’s offering.

2. On 08 October 2021, petitioner wrote his Deputy Sales

Head Ms. Ann Francis Tan who has the over-all Supervisory Authority in
his Sales Division an email letter requesting for an assistance for the
procurement of his presentation equipment specifically an IMAC
Laptop and a projector that he will be using for his presentation with
an investor who is looking for a Building Space to purchase with an
estimated area of at least 200 units as minimum requirements.
Petitioner asked Ms. Tan if she can borrow him at least Fifty Thousand
Pesos (PhP50,000.00) to be deducted in his commissions as
receivables for the procurement of the said equipment to give their
”prospect investor” a good impression on his presentation knowing
that he is not only “selling himself” but also representing SMDC as a
company. So Ms. Tan instructed Mr. Avelino Evangelista, petitioner’s
Sales Director and Immediate supervisor to make a STAF request for
the procurement presentation equipment.

3. That on 11 October 2021, Mr. Evangelista made a STAF

request worth One Hundred Fifty Thousand Pesos (P150,000.00) under
the petitioner’s name and to be charge to his Sales Production as a
quota in a form of Marketing Budget for the complainant’s
Deployment in UAE for October 7 up to November 5, 2021.

4. But eventually, on November 12, 2021 when petitioner

asked him about the release of the said budget, Mr. Evangelista
denied that it was released because of his none deployment in UAE,
and what really surprised the petitioner is upon making that inquiry
and telling Mr. Evangelista that he would like to verify with HR whether
the fund was really released or not, he was informed by Mr.
Evangelista that petitioner’s accreditation was cut short due to his
failure to meet the sales quota and he has only until November 15,
2021.

5. That the said unceremonious termination of petitioner’s

accreditation prompted him to request for an Administrative Hearing
with HR knowing that he still have until November 25, 2021 until the
expiration of his ACCREDITATION and there is NO SEF (Sellers Sales
Evaluation Form) was submitted two weeks prior to his expiration of
contract that will automatically renewed his contract under OP (Out-
of-Payroll) status.

6. On March 2022, when the petitioner made a follow-

up on the status of his clearance so that he can be reactivated
as an accredited agent of SMDC. He was surprised that he was
charged P9, 327.76 charge back to be deducted in his
commission as his deficiency of 5.37% for the P192, 343.86
deployment budget intended for the petitioner but was
released to Mr. Evangelista and was charged to petitioner’s
sales production as quota and another P1000.00 was charged
to him for his request for “BUMP-OFF” in re-holding the unit of his
client Mr. Richard Cordova that didn’t push through due to
ACCREDITATION concern.

7. It appears that the reason behind the termination of

petitioner’s accreditation contract despite in the middle of a Sales
Transaction and in the process of negotiating a “Big Ticket Account”
has only one intent which is to defraud the petitioner of his
deployment budget in a “willful deceit” which was facilitated by Ms.
Tan as his Sales Head who has the over-all supervisory authority in his
Sales Division with regards to all transactions and her use of influence
and authority in denying the petitioner’s ACCREDITATION knowing
that the petitioner is in a middle of a sales transactions.

8. Petitioner filed for illegal dismissal to the Labor Arbiter. He

alleged that he was not afforded due process. As an employee the
petitioner is entitled for a security of tenure and he was not given any
notice in violation of the two-notice rule by the Labor Code. Also, the
management failed to evaluate and submit a SELLER’S EVALUATION
FORM two weeks prior to the expiration of ACCREDITATION
CONTRACT as per company policy. Not to mention that the
termination was made immediately on NOVEMBER 15, 2021 which was
way ahead of the expiration that was written in the ACCREDITATION
CONTRACT which is November 25, 2021.

9. Petitioner prayed for reinstatement, back pays, Payment of

his Wage of Php192, 343.86 with interest for his SALES PRODUCTION
dated October 7 to November 5, 2021, Moral Damages of Php500,
000.00 and Exemplary Damages of Php500, 000.00 since he suffered a
mental anguish due to the unlawful termination of his contract that
resulted to a loss of sales/commission in the sum of P864, 000.00 as well
as Attorney’s Fees of Ten Percent (10%) of the total award.

10. Respondent avers that petitioner is an INDEPENDENT

CONTRACTOR and was hired as ASSOCIATE DIRECTOR 1 for a period
of six month from May 15, 2021 to November 16, 2021 and there is no
employer-employee relationship and that the NLRC has no jurisdiction
over the case.

11. The Labor Arbiter ruled in favor of Respondent. The

dispositive portion of which reads as follows:

“WHEREFORE, premises considered, judgement is hereby

rendered, DISMISSING the complaint for lack of factual and legal
basis for this tribunal to assume jurisdiction.

SO ORDERED.”

12. Petitioner appealed to NLRC and argued that when the

status of employment is in dispute, the employer bears the burden to
prove that the person whose service it pays for is an independent
contractor rather than a regular employee with or without the fixed
terms.1

13. Respondent failed to discharge its burden of proving that

the petitioner were independent contractor rather than regular
employee.

14. But the latter sustained the decision of the Labor Arbiter.
The dispositive portion of which reads as follows:

“WHEREFORE, premises considered, the Appeal filed by

complainant is hereby DENIED for lack of merit. The Decision of
Labor Arbiter Ludivina I. Ubiña-Taguinod dated April 28, 2023 is
AFFIRMED.

SO ORDERED.”

15. That a timely Motion for Reconsideration was filed before

the NLRC but was denied. The dispositive portion of which reads as
follows:

“WHEREFORE, premises considered, the Motion for

Reconsideration filed by complainant is DENIED for lack of merit. This
Commission’s Decision dated July 31, 2023 STANDS.

SO ORDERED.”

1
Ditiangkin, Et. Al. Vs. Lazada E-Services Philippines Inc. G.R. No. 246892 dated September 21, 2022
 VI. ERROR ASSIGNED

THE HONORABLE NLRC ERRED AND GRAVELY ABUSED

ITS DISCRETION IN A CAPRICIOUS, WHIMSICAL ARBITRARY
OR DESPOTIC MANNER IN THE EXERCISE OF THEIR
JURISDICTION EQUIVALENT TO LACK OF JURISDICTION WHEN
IT BASED ITS DECISION THAT THERE IS NO ILLEGAL DISMISSAL
ON THE ISSUES THAT WAS NOT BASED ON THE FACTS PROVEN
DURING THE PROCEDINGS.

II

THE HONORABLE NLRC ERRED AND GRAVELY ABUSED

ITS DISCRETION IN A CAPRICIOUS, WHIMSICAL ARBITRARY
OR DESPOTIC MANNER IN THE EXERCISE OF THEIR
JURISDICTION EQUIVALENT TO LACK OF JURISDICTION WHEN
IT FAILED TO APPLY EQUIPOISE DOCTRINE OF LABOR LAW,
ARTICLE 1702 OF THE CIVIL CODE AND ARTICLE 4 OF THE
LABOR CODE.

VII. DISCUSSION

THE HONORABLE NLRC ERRED AND GRAVELY ABUSED

ITS DISCRETION IN A CAPRICIOUS, WHIMSICAL ARBITRARY
OR DESPOTIC MANNER IN THE EXERCISE OF THEIR
JURISDICTION EQUIVALENT TO LACK OF JURISDICTION WHEN
IT BASED ITS DECISION THAT THERE IS NO ILLEGAL DISMISSAL
 ON THE ISSUES THAT WAS NOT BASED ON THE FACTS PROVEN
DURING THE PROCEDINGS.

To begin with, decisions or orders by any tribunal should be

based on the facts proven during the proceedings and only on the
issues raised by the parties;

In its decision dated 29 December 2023 states that the petitioner

is a fixed-term employee as his engagement with respondent SMDC
as Assistant Sales Director 1 (ASD1) covered by a fixed period
contract. Furthermore, the Honorable Commissioner points out that
there is no ILLEGAL DISMISSAL in the instant case as it only involves the
termination of a fixed-term contract of the petitioner on November
15, 2023. The lack of notice is of no consequence because when the
contract specifies the period of its duration, it terminates on the
expiration of such period.2

It must be emphasized that “Issues not being raise is deemed

waive”. The fact that the respondent did not submit a REPLY Affidavit
both on APPEAL and MOTION for RECONSIDERATION. The respondent
never alleged as an issue that pertains to type of employment or
petitioner was a fixed-term employee. Thus, nothing in the records of
the instant dispute that the respondent raised the issue of fixed-term
employee.

Among the issues raised by the respondents before the Labor

Arbiter and even during the initiation of this dispute is the general
allegation that there is no employer-employee relationship and the
petitioner is a Licensed Broker that makes him an Independent
Contractor and that the tribunal has no jurisdiction over the instant
case.

Hence, the respondents didn’t submit any supporting evidence

to support its allegation that the petitioner was an Independent
Contractor.
2
Decision dated December 29, 2023 Page 3 Par. 1
 Petitioner significantly agrees with the Honorable Commissioner
findings that the petitioner was able to present substantial proof to
establish employer-employee relationship.3

But humbly disagree in its decision that there is NO ILLEGAL

DISMISSAL that the lack of notice is of no consequence because when
the contract specifies the period of its duration, it terminates on the
expiration of such period4 which is a complete violation of Art. 279 of
the Labor Code known as Security of Tenure that an employee not to
be dismissed without cause and without due process.

Security of tenure is both constitutionally rights and statutory

rights. This is the right of every employee not to be dismissed without
just or authorized cause and in the absence of due process.5

The respondent failed to observe the substantive due process,

thus the termination of contract is illegal. The two (2) facet of a valid
termination of employment are (a) the legality of the act of dismissal,
i.e., the dismissal must be under any of the just causes provided under
Article 294 of the Labor Code; and (b) the legality of the manner of
dismissal, which means that there must be observance of the
requirements of due process, otherwise known as “the two-notice
rule”.6

In the respondent Reply Paper, they alleged that the petitioner’s

non-renewal of the contract is due to failure to reach the Sales Quota7
but they failed to submit Sellers Sales Evaluation Form ( SEF ) two weeks
prior to petitioner expiration of contract that will automatically
renewed his contract under OP (Out-of-Payroll) status pursuant to an

3
Decision dated July 31, 2023 Page 11 Par. 3
4
Decision dated December 29, 2023 Page 3 Par. 1
5
Imasen Phils. Vs. Alcon, October 22, 2014
6
EDUARDO BUGHAW, JR., v. TREASURE ISLAND INDUSTRIAL CORPORATION, [G.R. NO. 173151:
March 28, 2008].
7
Respondent’s Reply Paper Page 5 Par. 7
INTER-OFFICE MEMO, dated February 1, 2021 which is a form of first
written notice.

There was also no written notice provided by respondent when

they immediately terminated the petitioner’s contract on November
15, 2021 ten (10) days ahead of the petitioner’s contract expiration
date of November 25, 2021 that he signed with the respondent as
Accreditation Contract which will constitute as second written notice.

Clearly, the respondent failed to observe the requirements of

Due Process, otherwise known as “The Two-Notice Rule”.

It is a well-settled rule that to constitute a valid dismissal two (2)

requisites must concur, namely: (a) the dismissal must be or any of the
causes expressed in Art. 297 of the Labor Code, and (b) the employee
must have been accorded due process, basic of which is the
opportunity to be heard and to defend himself. 8

In illegal dismissal case, the burden of proof in a dismissal of an

employee rest on the employer and the employer has the burden of
proving that the termination was a valid or authorized cause shall rest
on the employer.9

Here, the respondent failed to discharge its burden of proving

the legality of the manner of dismissal, which means that there must
be observance of the requirements of due process, otherwise known
as “the two-notice rule”.

8
RDS TRUCKING vs. NATIONAL LABOR RELATIONS COMMISSION (G.R. No. 123941) August
27, 1998).
9
Charlie Hubilla vs. HSY Marketing (G.R. NO. 207354) January 10, 2018.
 II

THE HONORABLE NLRC ERRED AND GRAVELY ABUSED

ITS DISCRETION IN A CAPRICIOUS, WHIMSICAL ARBITRARY
OR DESPOTIC MANNER IN THE EXERCISE OF THEIR
JURISDICTION EQUIVALENT TO LACK OF JURISDICTION WHEN
IT FAILED TO APPLY EQUIPOISE DOCTRINE OF LABOR LAW,
ARTICLE 1702 OF THE CIVIL CODE AND ARTICLE 4 OF THE
LABOR CODE.

The Honorable Supreme Court in several cases declared the

strict adherence of this Honorable Commission to the rule that in all its
findings, orders, decisions or resolutions it must be supported with
substantial evidence when it ruled that “Indeed, when there is a
showing that the findings or conclusions drawn from the same pieces
of evidence, were arrived at arbitrarily or in disregard of the evidence
on record, they may be reviewed by the courts”. In particular, the CA
can grant petition for certiorari if it finds not supported by substantial
evidence is definitely tainted with grave abuse of discretion.10

The petitioner absolutely agree with the Honorable Labor Arbiter

findings on its decision dated April 28, 2023 that the accreditation
contract submitted by both parties are similar to the letter except only
on the duration of the agreement.11

It is well settled doctrine that if doubts exist between the

evidence presented by the employer and the employee, the scale of
justice must be tilted in favor of the latter. It is a time honored rule that
in controversies between labor and the employee, doubts necessarily
arising from the evidence, or in the implementation of the agreement
and writing should be resolved in favor of the labor.12

10
CONCURRING AND DISSENTING OPINION - Brion, J.: INC. SHIPMANAGEMENT, INC., CAPTAIN
SIGFREDO E. MONTERROYO AND/OR INTERORIENT NAVIGATION LIMITED, v. ALEXANDER L.
MORADAS, (G.R. No. 178564, January 15, 2014).
11
Decision dated April 28, 2023 Page 6.
12
Malabunga, Jr. vs. Cathay Pacific Steel Corp. (G.R. No. 198515) June 15, 2015.
 In the instant Appeal, the Honorable Commissioner points out
that the petitioner did not refute the finding of the Labor Arbiter that
the Accreditation Agreement submitted by respondents has
probative value as compared to the petitioner’s copy of the said
Accreditation Agreement. The Labor Arbiter noted that respondent’s
copy was signed under oath by both parties while the copy of
petitioner was only signed by him and was not notarized.

The Supreme Court make it clear that evidence thereon must be

clear, positive and convincing with regards to the rule when the
evidence of the employer and the employee are in Equipoise or Equal
Footing.13

When both parties in a labor case have not presented

substantial evidence to prove their allegations, the evidence is
considered to be in “Equipoise”. In such a case, the scales of justice
are tilted in favor of labor.

The employer cannot simply rely on the weakness of the

employee's evidence. Further, when the pieces of evidence
presented by the employer and the employee are in equipoise, the
scales of justice must be tilted in favor of the latter. This is in line with
the policy of the State.

As regards to the insistence of the petitioner that he was

qualified for an automatic renewal under OP (Out-of-Payroll) status
pursuant to an Inter-Office Memo dated February 1, 2021. The
Honorable Commissioner ruled that the automatic renewal pertains
to Seller’ contract and not to petitioner’s Accreditation Contract as
Associate Sales Director (ASD) is without factual and legal basis.

The fact that the petitioner is part of SMDC’s International Sales

under Sales Department. The petitioner was being evaluated based
on sales production.

13
Manuel Sarraga vs Marilyn Gimenez (G.R. No. 214419). November 17, 2021
 In case of doubt in the terms of the contract of employment
doubts should be resolved in favor of the employee. It is fundamental
that the interpretation of contracts of employment doubts are
generally resolved in favor of the worker. Any doubt or vagueness in
the provisions of the contract of employment should be interpreted
and resolved in favor of the employee.14

On the part of the Supreme Court, they have consistently upheld

Article 1702 of the Civil Code and Article 4 of the Labor Code that any
doubts in the interpretation of labor laws or contracts should be
resolved in favor of labor.

PRAYER

WHEREFORE, premises considered, it is hereby respectfully

prayed that the Decision dated 29 December 2023 of the Honorable
Commissioner Dolores M. Peralta-Beley be reversed and set aside and
a new one entered in favor of the petitioner.

Other measures of relief, just and equitable in the premises, are

likewise prayed for.

Respectfully submitted this 13th day of February 2024 at Pasay

City, Philippines.

14
CENTRO PROJECT MANPOWER SERVICES CORPORATION v. AGUINALDO NALUIS, (G.R. No.
160123) June 17, 2015.
Copy furnished:

National Labor Relations Commission

Fifth Division
8th Floor Ben-Lor Building
1184 Quezon Ave, Diliman
Quezon City

Atty. Modesto M. Alejandro, Jr.

Counsel for Respondents
ALEJANDRO AND PARTNERS
10TH Floor, One E-Com Center
Harbour Drive, Mall of Asia Complex
1300 Pasay City

Hon. Ludivina I. Ubiña-Taguinod

Executive Labor Arbiter
NCR
6th Floor, Ben-Lor Building
1184 Quezon Ave, Diliman
Quezon City

EXPLANATION

Copies of the foregoing Petition were filed and served by

registered mail due to distance of the place where the same will be
filed and served.
Republic of the Philippines)
City of ____________) S.S.
X-----------------------------X

VERIFICATION AND CERTIFICATION OF NON-FORUM

SHOPPING

I, Yen Warren P. Canoy, of legal age, Filipino citizen, married, with

residence address at Km. 12 Merville Access Road Balagbag, Pasay
City, MM, Philippines after having been duly sworn to an oath in
accordance with law, hereby depose and say:

1. That I am the petitioner in the above-stated case;

2. That I caused the preparation of the foregoing petition;

3. That I have read the contents thereof and the facts stated
therein are true and correct of my personal knowledge and/or
on the basis of copies of documents and records in my
possession;

4. That I have not commenced any other action or proceeding

involving the same issues in the Supreme Court, the Court of
Appeals, or any other tribunal or agency;

5. To the best of my knowledge and belief, no such action or

proceeding is pending in the Supreme Court, the Court of
Appeals, or any other tribunal or agency;

Yen Warren P. Canoy

Affiant
Republic of the Philippines)
City of __________ ) S.S.

SUBSCRIBED AND SWORN to before me this ________________________

City, affiant exhibiting to me his TIN ID with number 469-679-295
issued on June 01, 2015 at Manila City.

NOTARY PUBLIC

Doc. No.______;
Page No.______;
Book No.______;
Series of 2024.