Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region, Quezon City
_______ DIVISION

RAQUEL S. QUILLOSA
Complainant-Appellant.

NLRC LAC NO. ____________________

-versus- NCR CASE NO. 08-09585-14
Hon. Remedios Marcos
SJ GAS AND APPLIANCE CENTER, INC.
CORAZON SAN JUAN ./ RONALD VILLANUEVA
Respondents-Appellees.
x--------------------------------------------------x

MEMORANDUM OF PARTIAL APPEAL

COMPLAINANT-APPELLANT, by the undersigned counsel and unto the
Honorable Commission, most respectfully avers as follows:

TIMELINESS OF THE APPEAL

This is a TIMELY PARTIAL APPEAL of the decision of the Honorable Arbiter

dated October 7, 2014 which DISMISSED the complaint for illegal dismissal although
sustaining complainant’s money claims. The said Decision was received by the
undersigned on December 15, 2014, giving the complainant until CHRISTMAS DAY,
December 25, 2014 to file the appeal.

THE PARTIES

COMPLAINANT is of legal age, Filipino, with address at 43 Gutierrez

Compound, Bagumbayan, Taguig where she can be served with notices, orders,
pleadings and other processes; Respondent SJ GAS AND APPLIANCE
CENTER, INC. is a company organized under Philippine Laws, while CORAZON
SAN JUAN ./ RONALD VILLANUEVA are the responsible officers thereof, with
address at 25 Paso St., Bagumbayan Taguig where they could be served with
summons, notices and other legal processes.

STATEMENT OF THE FACTS AND OF THE CASE

Complainant is HUB OPERATOR / SALES CLERK under the REGULAR

employment of respondents who are engaged in the sale of LPGs. She was
assigned at the KAPITOLYO-PASIG BRANCH of the company, located at 818 Bldg,
169, Pasig Blvd., Kapitolyo, Pasig. She has been working for the respondents since
September 1, 2011 with a work schedule from 7:00 AM to 6:00 PM, Monday to
Saturday. For her work, she was paid only the sum of Php310.46 per day (per ruling

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of the Honorable Arbiter) without any Overtime Pay, 13 th month pay, or SILP. (As
proof thereof, attached in the Position Paper are the PAYSLIP of the complainant as
ANNEX A and series.)

Complainant diligently and faithfully performed all her duties and

responsibilities until her illegal dismissal on July 30, 2014. According to the
complainant, since 2012 she and her co-workers have been requesting respondent
Villanueva (Sales Manager) to increase her salary to at least that of the minimum
wage. Unfortunately, their requests fell on deaf ears as according to Villanueva,
“Ganoon lang ang pasahod ng kumpanya.” This left the complainant with no other
choice but to file a complaint with the NLRC through the SENA sometime on July 25,
2014 so that that her valid grievances will be looked into.

On July 28, 2014, at around 1:00P.M., AFTER LEARNING ABOUT THE

CASE FILED BY THE COMPLAINANT, respondent Villanueva, together with Mary
Ann Carpio (Office Administrator) and Mary May Bandong (HR officer) immediately
conducted a SURPRISE ACTUAL INVENTORY on all the sales and product
inventories of complainant’s branch. Right there and there, respondents accused the
complainant of having alleged shortages for the months of January, February and
April 2014. Respondents even forced the complainant to go with them to the local
Barangay Hall for “recording” or blotter purposes at around 4:00P.M. Respondents
confiscated her company cell phone and the keys to the branch office.
THEREAFTER, SHE WAS NO LONGER ALLOWED TO WORK. When the
complainant tried to go back to work on July 30, 2013 (July 29 is a holiday), she
found out that she was already REPLACED by Ms. Vangie Cerujano. Her earned
salary for the month of July was likewise never given to her.

During the mandatory conference, respondents never denied the fact that the
complainant was already dismissed from work. Neither did they make any offer to
the complainant to return to work. ADDING SALT TO INJURY, respondents even
had the audacity to file a CRIMINAL COMPLAINT against the complainant for
alleged QUALIFIED THEFT dated AUGUST 7, 2014, (a copy of which is attached in
the Position Paper as ANNEX B) in order to coerce the complainant from
withdrawing this labor complaint.

In the decision, the Honorable Arbiter, affirmed respondents’ liability to the

complainant in the total amount of Php102,076.13 representing salary differentials
and non-payments/underpayment of 13 th month pay, ECOLA and SILP, As ruled by
the Honorable Arbiter

Anent complainant’s claim for salary differentials, it appears that her

monthly wage is only P8,072.00. (supra at p. 92) which results only to a daily
wage of P310.46 for twenty six (26) days, which is certainly below the
minimum wage prescribed by law. xxx

However, it dismissed the complaint for illegal dismissal, arguing that:

“complainant failed to discharge the burden of the fact of dismissal.

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 From the foregoing, it is clear that SERIOUS ERRORS IN THE FINDING OF
FACTS were made by the Honorable Arbiter which, if not, corrected, will cause grave
and irreparable damage or injury to appellant. Hence this PARTIAL appeal.

THE ISSUES

1. WAS THE COMPLAINANT ILLEGALLY DISMISSED?

2. IS THE COMPLAINANT ENTITLED TO DAMAGES &
ATTORNEY’S FEES?
3. SHOULD INDIVIDUAL RESPONDENTS BE SOLIDARY AND
PERSONALLY LIABLE WITH THE RESPONDENT COMPANY.

ARGUMENTS AND DISCUSSION

COMPLAINANT WAS ILLEGALLY DISMISSED

Complainant no doubt was a REGULAR EMPLOYEE of the respondents

where she worked since 2011. As a Hub Operator / Sales Clerk, her work is
absolutely necessary and desirable to the usual business of the respondents. Being
a regular employee, complainant is therefore entitled to SECURITY OF TENURE as
enshrined in the Constitution and protected by law.

In the case at bar, it is clear that the complainant was ILLEGALLY and
UNJUSTLY DISMISSED IMMEDIATELY AFTER she complained about the low
salary she was receiving with the Honorable NLRC, To reiterate, the complainant
was only receiving the amount of Php310.46 per day (per ruling of the Honorable
Arbiter) which is way below the minimum wage of Php466.00 per day. NO notice to
explain was ever given to the complainant; NO due process was afforded to the
complainant; and, NO notice of termination was given to him, in complete
DISREGARD of the law. As explained by the Supreme Court in the case of JARDIN
vs. NLRC [G.R. No. 119268. February 23, 2000]:

As consistently held by this Court, termination of employment MUST

be effected in accordance with law. The just and authorized causes for
termination of employment are enumerated under Articles 282, 283 and 284
of the Labor Code. The requirement of notice and hearing is set-out in Article
277 (b) of the said Code. Hence, petitioners, being employees of private
respondent, can be dismissed only for just and authorized cause, and after
affording them notice and hearing prior to termination. In the instant case,
private respondent had no valid cause to terminate the employment of
petitioners. Neither were there two (2) written notices sent by private
respondent informing each of the petitioners that they had been dismissed
from work. These lack of valid cause and failure on the part of private
respondent to comply with the twin-notice requirement underscored the
illegality surrounding petitioners’ dismissal. (Emphasis ours.)

In the assailed decision, the Honorable Arbiter alleged that: “complainant

failed to discharge the burden of the fact of dismissal.” The Arbiter argued that “she
was illegally dismissed on April 30, 2014. xxx If there is truth to her allegations, why
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would she even go back to the respondent company’s Pasig branch to report for
work until July (id.) when she was allegedly dismissed two months ago or as early as
April 30, 2014.”

This should have been considered merely by the Honorable Arbiter as a

TYPOGRAPHICAL OR INADVERTENT ERROR, since it is clearly stated in her
complaint that she was dismissed on “July 30, 2014” and not on “April 30, 2014.
Moreover, complainant’s narration of facts will readily reveal that she was dismissed
on July 30, 2014. Thus:

On July 28, 2014, at around 1:00P.M., AFTER LEARNING ABOUT

THE CASE FILED BY THE COMPLAINANT, respondent Villanueva, together
with Mary Ann Carpio (Office Administrator) and Mary May Bandong (HR
officer) immediately conducted a SURPRISE ACTUAL INVENTORY on all the
sales and product inventories of complainant’s branch. Right there and there,
respondents accused the complainant of having alleged shortages for the
months of January, February and April 2014. Respondents even forced the
complainant to go with them to the local Barangay Hall for “recording” or
blotter purposes at around 4:00P.M. Respondents confiscated her company
cell phone and the keys to the branch office. THEREAFTER, SHE WAS NO
LONGER ALLOWED TO WORK. When the complainant tried to go back to
work on July 30, 2013 (July 29 is a holiday), she found out that she was
already REPLACED by Ms. Vangie Cerujano. Her earned salary for the
month of July was likewise never given to her.

From the foregoing, complainant has fully discharged the burden of proving
that she was illegally dismissed. Her termination from work is akin to a
CONSTRUCTIVE dismissal, as her continued employment was rendered
IMPOSSIBLE and UNLIKELY by the respondents in view of the following
circumstances.

1. Complainant was only receiving the amount of Php310.46 per day which
is way below the minimum wage of Php466.00 per day.
2. When the respondents denied her pleas for her salary to be adjusted to
that of the minimum wage as mandated by law, she filed a complaint with
the SENA-NLRC on July 25, 2014, initially for underpayment of wages.
3. On July 28, 2014, at around 1:00P.M., IMMEDIATELY AFTER LEARNING
ABOUT THE CASE FILED BY THE COMPLAINANT, respondents
conducted a SURPRISE ACTUAL INVENTORY on all the sales and
product inventories of complainant’s branch and thereafter accused the
complainant of having alleged shortages for the months of January,
February and April 2014
4. At around 4:00P.M of the same day, Respondents dragged the
complainant to the local Barangay Hall in order to have the alleged
“shortages” recorded in the blotter.
5. Respondents CONFISCATED her company cell phone and the KEYS to
the branch office.
6. THEREAFTER, RESPONDENTS WAS NO LONGER ALLOWED TO
WORK When the complainant tried to go back to work on July 30, 2013

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 (July 29 is a holiday), she found out that she was already REPLACED by
a certain Ms. Vangie Cerujano.
7. Her earned salary for the month of July was likewise never given to her.
8. Later, Respondents filed a CRIMINAL COMPLAINT dated AUGUST 7,
2014 against the complainant for alleged QUALIFIED THEFT

All of these facts have are borne by the evidence on record. In the case of
NELSON B. GAN vs. GALDERMA PHILIPPINES, INC. (G.R. No. 177167, January
17, 2013), the High Court explained that:

“CONSTRUCTIVE DISMISSAL is defined as quitting or cessation of

work because continued employment is rendered IMPOSSIBLE,
UNREASONABLE or UNLIKELY; when there is a demotion in rank or a
diminution of pay and other benefits. It exists if an act of clear discrimination,
insensibility, or disdain by an employer becomes so unbearable on the part of
the employee that it could foreclose any choice by him except to forego his
continued employment. xxx”

The fact that she was already dismissed from employment is bolstered by the
allegation in respondent’s Position Paper that complainant allegedly “ABANDONED”
her work. As alleged by the respondents:

26. The Complainant simply did not show up for work. Thus, the
Complainant abandoned her work. (page 8 thereof)

It has already long settled that the immediate filing of a complaint for illegal
dismissal belies the claim for abandonment. As ruled en banc by the Supreme Court
in the most recent case REPUBLIC vs. MINERVA M.P. PACHEO (EN BANC, G.R.
No. 178021, January 25, 2012):

“It is settled that the filing of a complaint for illegal dismissal is

INCONSISTENT with a charge of abandonment. The filing of the complaint is
PROOF enough of his desire to return to work, thus negating any suggestion
of abandonment.” (Emphasis mine.)

What is telling in their position paper is that although they claim that the
complainant was NOT dismissed from work, they also alleged AT THE SAME TIME
that the complainant committed several infractions worthy of her termination, such as
qualified theft. Thus, respondent alleged that complainant incurred “shortages” as
shown by a SURPRISE “AUDIT” which the respondents conducted on July 28, 2014
AFTER the complainant has already filed a case for underpayment of salary with the
SENA-NLRC on July 25, 2014.

Complainant categorically DENIED having incurred any shortages. The

aforesaid infractions are all FABRICATED by the respondents. Very clear is the fact
that they came up with the alleged “shortages” only AFTER the complainant has
already filed a labor case against them, INITIALLY for underpayment of wages.

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 Complainant made the brave move to file a complaint with the SENA-NLRC
for underpayment of wages on July 25, 2014 only after YEARS of begging the
respondents to increase her salary to at least the current minimum wage, to which
pleas the respondents always ignored. The usual excuse given to her by respondent
Villanueva: “Ganoon lang ang pasahod ng kumpanya.”

The respondents even alleged that they wrote “a letter to complainant

requiring her to explain her absences” sometime on August 6, 2014, Such alleged
BELATED return to work order can no longer cure the illegality of complainant’s
dismissal. As ruled in the case of CARLO RANARA vs. NATIONAL LABOR
RELATIONS COMMISSION (G.R. No. 100969 August 14, 1992):

The fact that his employer later made an offer to re-employ him did not
cure the vice of his earlier arbitrary dismissal. The wrong had been committed
and the harm done. Notably, it was only after the complaint had been filed
that it occurred to Chang, in a BELATED gesture of good will, to invite Ranara
back to work in his store. Chang's sincerity is suspect. We doubt if his offer
would have been made if Ranara had not complained against him. At any
rate, sincere or not, the offer of reinstatement could NOT correct the earlier
illegal dismissal of the petitioner. The private respondents incurred liability
under the Labor Code from the moment Ranara was illegally dismissed, and
the liability did not abate as a result of Chang's repentance. (Emphasis ours.)

At any rate, it must be noted that during the mandatory conferences before
the Honorable Arbiter, respondents never DENIED the fact that the complainant was
already dismissed from work. Neither did they make any offer to the complainant to
return to work. Respondents even filed a CRIMINAL COMPLAINT against the poor
complainant for alleged QUALIFIED THEFT.

This Honorable Office should take judicial notice of the fact that some
unscrupulous employers file BASELESS CRIMINAL COMPLAINTS against their
helpless workers who have filed labor complaints against them for underpayment or
non-payment of salaries and other legally mandated benefits. These malicious acts
are highly detestable, repugnant and abhorrent and should never be countenanced
by the Honorable Office. (Attached to her REPLY is the COUNTER-AFFIDAVIT of
the complainant prepared by the Public Attorney’s Office.)

Accordingly, when the complainant was dismissed by the respondents, her

constitutional right to SECURITY OF TENURE was clearly violated. This was her
reward after faithfully serving the respondents since 2011.

COMPLAINANT IS ENTITLED TO REINSTATEMENT & FULL BACKWAGES

As a direct consequence of complainant’s unjust termination from service

without due process of law, the complainant is entitled to IMMEDIATE
REINSTATEMENT with FULL BACK WAGES and SALARIES. Back wages represent
the compensation which an employee could have earned but was not collected
because of the unjust dismissal. In general, it is granted on ground of equity for
earnings lost due to illegally effected termination.

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 As clearly stated under Article 279 of the Labor Code, “ An employee who is
unjustly dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full back wages inclusive of allowance,
and to his other benefits of their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual reinstatement.”

Thus, an illegally dismissed employee is entitled to two reliefs: backwages

and reinstatement. The two reliefs provided are separate and distinct. In instances
where reinstatement is no longer feasible because of strained relations between the
employee and the employer, separation pay is granted. In effect, an illegally
dismissed employee is entitled to either reinstatement, if viable, or separation pay if
reinstatement is no longer viable, and backwages. The normal consequences of
respondents’ illegal dismissal, then, are reinstatement without loss of seniority rights,
and payment of backwages computed from the time compensation was withheld up
to the date of actual reinstatement. Where reinstatement is no longer viable as an
option, separation pay equivalent to one (1) month salary for every year of service
should be awarded as an alternative. The payment of separation pay is in addition to
payment of backwages. (MACASERO vs. SOUTHERN INDUSTRIAL GASES
PHILIPPINES; G.R. No. 178524, January 30, 2009)

RESPONDENTS ARE LIABLE FOR DAMAGES AND ATTORNEY’S FEES

In illegal dismissal cases, moral and exemplary damages are awarded to

compensate the affected employee for diverse injuries such as mental anguish,
besmirched reputation, wounded feeling and social humiliation suffered as a
consequence of the termination. In the case at bar, the respondents DISMISSED the
complainant in RETALIATION for her filing a LABOR COMPLAINT against them.
Clearly, the respondents are in BAD FAITH for their wanton disregard of the law and
are, therefore, liable for moral and exemplary damages.

Finally, in the pursuit of justice, the complainant was forced to secure the
services of counsel, thereby incurring legal fees in the process. Accordingly,
respondents should also be ordered to pay attorney’s fees equal to ten percent of the
amount of wages recovered as provided for in Art. 111 of the Labor Code.

Settled is the rule that in actions for recovery of wages, or where an employee
was forced to litigate and, thus, incur expenses to protect his rights and interests, a
monetary award by way of attorney’s fees is justifiable under Article 111 of the Labor
Code; Section 8, Rule VIII, Book III of its Implementing Rules; and paragraph 7,
Article 2208 of the Civil Code. The award of attorney’s fees is proper, and there
need not be any showing that the employer acted maliciously or in bad faith when it
withheld the wages. There need only be a showing that the lawful wages were not
paid accordingly. (Kaisahan vs. Manila Water Company, G.R. NO. 174179,
November 16, 2011)

INDIVIDUAL RESPONDENTS SHOULD BE MADE SOLIDARILY LIABLE

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 In the assailed decision, the Honorable Arbiter ruled that the individual
respondents are not solidarily liable with the respondent company. This finding
should also be overturned in light of the clear and PATENT violations of the law
committed by the respondents, from the proven UNDERPAYMENT of salaries and
non-payment of benefits which are flagrant violations of the Labor Code and
prevailing wage laws, to the RETALIATORY MEASURES initiated by the
respondents after finding out that the complainant filed a labor complaint against
them, culminating to the fabricated qualified theft charge which they filed against the
helpless complainant. Clearly, such actions prove beyond doubt the evident BAD
FAITH committed by the respondents which make them SOLIDARILY and
PERSONALLY liable with the respondent company.

As ruled by the Supreme Court in the case of SIBAL vs.NOTRE DAME OF

GREATER MANILA, NLRC (G.R. No. 75093, February 23, 1990):

The records show that when summons with attached complaint of

petitioner for money claims was served on respondent school on June 14,
1982, said respondent, on the very day, gave petitioner her walking papers.
Respondent did not waste any time in dismissing her in brazen violation of
these provisions of the Labor Code, as amended:

Art. 118 of the Labor Code provides:

Retaliatory measures. — It shall be unlawful for an employer to refuse

to pay or reduce the wages and benefits, discharges or in any manner
discriminate against any employee who has filed any complaint or instituted
any proceeding under this Title or has testified or is about to testify in such
proceedings. (Emphasis supplied)

Thus, too, Art. 249 (f) provides:

Art. 249. Unfair tabor practice of employers. — It shall be unlawful

for an employer to commit any of the following unfair labor practice. xxx

(f) to dismiss, discharge, or otherwise prejudice or

discriminate against an employee for having given or being about to
give testimony under this Code, xxx

For the aforestated violations, respondent becomes liable under Arts.

289 and 290 of the same Code. xxx

The series of discriminatory and oppressive acts of respondent school

against petitioner invariably makes respondent liable for moral damages
under Art. 1701, which prohibits acts of capital or labor against each other,
and Art. 21 on human relations in relation to Art. 2219 No. 10 and Art. 2220,
all of the Civil Code (citing Philippine Refining Co., Inc. v. Garcia, 18 SCRA
107). (Rollo, pp. 140-141, emphasis ours.)

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 In closing, time and again, the Supreme Court has invariably held that in
termination cases, the burden of proving that the dismissal of an employee was for a
just cause rests on the employer and his failure to do so would result in a finding that
the dismissal is unjustified. The right of an employee to security of tenure is
protected by the Constitution which must be respected unless a just cause exists for
the termination of employment. The determination of the existence and sufficiency of
a just cause must be exercised with fairness and in good faith and after observing
due process." (FIL-PRIDE SHIPPING vs. NLRC, G.R. No. 97068, March 5, 1993)

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Office to render judgment in favor of the complainant and against the
respondents, as follows:

1. To declare the dismissal of the Complainant as ILLEGAL, the same having

been effected without a just cause and without due process;
2. To order the respondents to REINSTATE the complainant to the former
position without loss of seniority rights and other privileges, and if this is no
longer possible, to pay the complainant SEPARATION PAY.
3. To order the respondents SOLIDARILY liable to pay the complainant full
BACK WAGES, inclusive of allowances and other benefits to be computed
from the time compensation was withheld up to actual reinstatement;
4. To order the respondents to pay her LAST EARNED SALARY.
5. To pay the complainant DOUBLE the amount owing to her pursuant to
Republic Act 8188.
6. To award her moral and exemplary damages, plus Attorney’s Fees.
7. To declare the individual respondents SOLIDARILY and PERSONALLY
liable to the complainant

Other just and equitable remedies are likewise prayed for.

Quezon City, December 19, 2014.

ATTY. PEARLITO B. CAMPANILLA

Suite B 2nd Floor Overland Park Bldg.,
No. 245 Banawe St. cor. Quezon Ave., Quezon City
Roll 37522 / IBP Life 010564 2-3-12 Pasig
PTR 9019138 1-7-14 QC / MCLE IV - 0018064

Copy Furnished:

ATTY. ARCHIESYL S. TORRES

2105 ROBINSONS EQUITABLE TOWER
4 ADB AVE. ORTIGAS CENTER,
PASIG CITY