REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

SPECIAL FOURTH DIVISION

MAUREEN ANGELI A. GIANAN,

Petitioner,

-versus-
CA-G.R.SP.NO.148801

NATIONAL LABOR RELATIONS COMMISSION,

MARVIN JOHNSON MANPOWER
CORPORATION, DIONALD PORNEL
AND GERALD TAN.
Respondents,
x------------------------------------------------------x
MEMORANDUM
(IN RE: RESOLUTION DATED 18 MAY 2018)

PRIVATE RESPONDENTS, through the undersigned counsel, and

unto this Honorable Court of Appeals, most respectfully set forth
the following:

PREFATORY STATEMENT

Security of tenure is indeed constitutionally guaranteed.

However, this should not be indiscriminately invoked to deprive an
employer of its management prerogatives and right to shield itself
from errant employees.1

This privilege is inherent in the right of the employers to

control and manage their business as effectively as possible. Our
laws and jurisprudence extend the recognition and respect to such
exercise by the employers of their rights and prerogatives. For this
reason, courts often decline to interfere in employers’ judgment
concerning the conduct of their business2.

Further, cases involving the instant case should be decided on

the merits and not on the sentiments of the petitioner portraying
herself as victim. “While it is true that compassion and human
consideration should guide the disposition of cases involving
termination of employment since it affects one's source or means
of livelihood, it should not be overlooked that the benefits
accorded to labor do not include compelling an employer to
retain the services of an employee who has been shown to be a

1
Realda vs. New Age Graphics, Inc, GR No. 192190, April 25, 2012
2
Supreme Steel Corporation vs. Nagkakaisang Manggagawa ng Supreme Independent Union, GR No.
185556, March 28, 2011

Page 1 of 22
 gross liability to the employer. The law in protecting the rights
of the employees authorizes neither oppression nor self-
destruction of the employer. It should be made clear that when
the law tilts the scale of justice in favor of labor, it is but a
recognition of the inherent economic inequality between labor and
management. The intent is to balance the scale of justice; to put
the two parties on relatively equal positions. There may be cases
where the circumstances warrant favoring labor over the interests
of management but never should the scale be so tilted if the result
is an injustice to the employer. Justitia nemini neganda est (Justice
is to be denied to none).”3

Also, the Supreme Court has held that “while the Constitution
is committed to the policy of social justice and the protection of
the working class, it should not be supposed that every labor
dispute will be automatically decided in favor of labor.
Management also has its rights which are entitled to respect and
enforcement in the interest of simple fair play. Out of its concern
for the less privileged in life, the Court has inclined, more often
than not, toward the worker and upheld his cause in his conflicts
with the employer. Such favoritism, however, has not blinded the
Court to the rule that justice is in every case for the deserving, to
be dispensed in the light of the established facts and the
applicable law and doctrine”.4

TIMELINESS

1. On 01 June 2018, the private respondents received a copy of

the abovementioned Resolution dated 18 May 2018, the
pertinent portion of which states:

“Considering that Comment and Reply thereto have

been filed, the Court RESOLVES to DIRECT the
parties to FILE their simultaneous memoranda
within fifteen (15) days from notice.”

2. Thus, the private respondents have until 16 June 2018 within

which to submit their Memorandum. However, considering that
16 June 2018 is a Saturday, the private respondents have until
18 June 2018, Monday to file their Memorandum.

3. Hence, this Memorandum for the private respondents is timely

filed.
STATEMENT OF THE CASE

4. This case stems from a Petition for Certiorari filed by the

petitioner Guinan seeking to reverse and set aside the Decision
of the public respondent dated 30 September 2016 denying for

3
Philippine Long Distance and Telephone Company Inc. vs. Balbastro, G.R. No. 157202, March 28, 2007.
4
Philippine Rural Reconstruction Movement (PRRM) v. Virgilio E. Pulgar, G.R. No. 169227, July 5, 2010,
623 SCRA 244, 257.

Page 2 of 22
 lack of merit her Motion for Partial Reconsideration filed on 7
July 2016, the pertinent portion of which states:

“ACCORDINGLY, let the instant Motion for Partial

Reconsideration be, as it is hereby, DENIED for lack of
merit. The Decision of this Commission dated July 30,
2016 STANDS undisturbed.

No further motion of similar nature shall be

entertained.

SO ORDERED.”

STATEMENT OF THE RELEVANT FACTS

5. Petitioner Gianan was an employee of respondent company

holding the position of Account Executive where she is
entrusted with the authority to negotiate and close deals with
prospective clients. Thus she is holding a position that requires
utmost trust and confidence.

6. On 10 December 2014, she was served with Written Warning5

for insubordination for failure to obey her superior’s order.

7. Sometime in the first quarter of 2015, respondent company

receive information that petitioner was engaged in
moonlighting. However, Petitioner told Ms. Elisa A. Sia, the
President of respondent company at that time that the said
reports regarding her moonlighting is untrue.

8. Despite this, Sia then started to investigate further. Upon

further investigation, respondent company, through its
Discipline Committee, discovered that petitioner Gianan sought
permission to negotiate a deal with a prospective client Hafele
Phils. Inc at its office. This permission was required only for
proper channeling of reimbursement requests.

9. However, upon inquiry with the prospective client there was

no Gianan or any employee of the respondent company that
visited the office during that day or any day prior to it. As per
the Security Guard of the building, two individuals however
came to meet for a meeting and these individuals were
employees of a rival corporation.

10. Not convinced, Sia politely approached petitioner Gianan

regarding the incident and allegations of moonlighting.
However, she denied the accusations and reaffirmed her loyalty
to the respondent company.

5
See Annex 6-1 of Respondents’ Position Paper

Page 3 of 22
11. Respondent company conducted further investigations and
found out that on 10 April 2015, petitioner Gianan requested
for reimbursement of the amount seven hundred ninety-eight
pesos (P798.00), which was allegedly spent in a meeting with a
certain Jenilyn A. Mesa of Hafele Phils. Inc.

12. In the said Reimbursement Form6 duly signed by petitioner

Gianan, she requested for reimbursement of seven hundred
ninety-eight pesos (P798.00) as food for three since she
indicated “Food for 3 pax” and transportation costs.

13. Thereafter, petitioner Gianan already received the said amount

for reimbursement upon approval of the reimbursement form.
Based on the Cash Vouchers7 duly signed by Gianan, she
actually received the amount of seven hundred ninety-eight
pesos (P798.00) as per her signed reimbursement request form.

14. However, upon verification from Ms. Jenilyn A. Mesa, the latter
categorically denied that she had a meeting with Gianan.
Jenilyn A. Mesa stated such categorical denial in the
Reimbursement Form8, it is hereby quoted verbatim, viz:

“I AM NOT INCLUDED NOR I GO

WITH MS. MAUREEN TO DINE OUT
AT CHOWKING C5 DIEGO SILANG
BRANCH.”

15. Furthermore, a certain Baltazar Ferrera, who is one of the

persons allegedly present when Gianan dined-in at Chowking,
stated in his Affidavit9 that indeed Jenilyn A. Mesa was not
present when they ate at the said fast food chain. Much less,
there was no meeting that transpired on the said date.

16. However, the respondent company continued further its

investigation of the matter in order to avoid any untoward
incident that will happen.

17. On another matter, another Memorandum10 was issued by

respondent company to petitioner on 17 April 2015 for
persistently violating company rules and regulations particularly
on insubordination, absences and tardiness.

18. On 4 May 2015, petitioner submitted her Application for Leave

of Absence11 for three (3) days from 6 May 2015 to 8 May 2015.
The said application for leave was however denied.

6
See Annex 1 of Respondents’ Position Paper.
7
See Annex 2 and 3 of Respondents’ Position Paper.
8
See Annex 4 of Respondents’ Position Paper.
9
See Annex 5 of Respondents’ Position Paper.
10
See Annex 6- 2 of Respondents’ Position Paper.
11
Please see ANNEX 2 of Respondents’ Memorandum of Appeal.

Page 4 of 22
19. However, despite the said application being DENIED, petitioner
was still absent the following morning of 5 May 2015.

20. Thus, respondent company thru Management made repeated

calls to the petitioner, but to no avail, she failed to report back
for work the days after.

21. On 8 May 2015, a Memorandum12 was again issued by

respondent company informing petitioner of her infractions and
violations against company rules and policies in connection to
her absences.

22. However, petitioner still did not report to work not until 12 May
2015.

23. Unfortunately, on 12 May 2015, a Notice to Explain due to

Gianan’s unyielding character of being tardy and always absent,
though titled as such Notice to Explain, mistakenly and
erroneously indicated that Gianan was then dismissed from
work. The correct and proper phraseology of the statement
should have been that Gianan may be dismissed from
employment if found guilty of breach of trust and confidence
being an employee holding high trust and confidence from the
management.

24. Thus, a correct Notice to Explain was sent and personally

received by petitioner on 13 May 2015 requiring her to explain
why she should not be terminated in relation to her frequent
and unauthorized absences including her numerous infractions
of company rules and policies. Attached as ANNEX 3 and
ANNEX 4 in the Respondents’ Memorandum of Appeal are the
Notice to Explain dated May 13, 2015 and a copy of the LBC
Receipt dated May 14, 2015, respectively, for your reference.
Attached also as ANNEX 5 in the Respondents’ Memorandum of
Appeal is a photo showing petitioner personally receiving the
said notice.

25. As such, on 15 May 2015, a letter recalling the previously sent

Notice to Explain13 dated 12 May 2015 was sent to and
received by Gianan14.

26. Respondent company also tried its best to reach petitioner

Gianan through various means such as sending of an envoy and
messenger to her residence, instructing her friends and
colleagues to send her text messages and call her mobile phone
to inform her that the Notice to Explain is being recalled and
that she is ordered to report back to work immediately.
However, all these efforts failed. Attached as ANNEX 6 in the
Respondents’ Memorandum of Appeal is a copy of the exchange
12
See Annex 6- 3 of Respondents’ Position Paper.
13
See Annex 6- of Respondents’ Position Paper.
14
See Annex 7-1 AND 7-2 of Respondents’ Position Paper.

Page 5 of 22
 of communication between the petitioner and the
management dated 18 May 2015 requiring her to report back to
work.

27. On 20 May 2015, another Memorandum was sent and issued to

petitioner Gianan requiring her to report to work and provide
an explanation regarding the 10 April 2015 falsification of
documents that could amount to Qualified Theft when she took
away the money worth seven hundred ninety eight pesos
(P798.00) as allegedly costs of transportation and food in a
meeting with a certain Jenilyn A. Mesa, to which Jenilyn A.
Mesa categorically denied such facts and claims of petitioner
Gianan.

28. A few weeks after from her long silence, petitioner Gianan, to
the surprise of respondent company, filed this instant case for
illegal dismissal.

29. During the Single Entry Approach (SEnA) Conferences,

respondent company kept in reiterating to the petitioner that
she is still an employee of respondent company and was never
dismissed. In fact, she received various notices to return to
work.

30. Also, during the Conciliation Hearings before this Honorable

Labor Arbiter, petitioner Gianan was again offered by
respondent company to return to work and to pick up her salary
which she failed to receive since she never went back to work
anymore and she kept on ignoring the communications from the
respondent company and its envoys.

31. In the presence of the Honorable Labor Arbiter, respondent

company once again ordered petitioner Gianan to return to
work as she was not dismissed in view of the letter sent the day
immediately after the erroneous Notice to Explain was sent to
her.

32. In fact, the Honorable Labor Arbiter Associate explained to

petitioner Gianan that her prayer for reinstatement plus
payment of salary for the days worked are already the gist of
Gianan’s demands.

33. However, petitioner Gianan desires more than what she is

entitled. Gianan wants to earn from this case by demanding
from the respondent company full backwages from the time she
did not report to work up to the time when she feels she wants
to report back to work, utterly and scandalously violating the
no work no pay principle that our jurisdiction has immemorially
observed.

Page 6 of 22
34. However, despite repeated calls and offers from respondent
company for petitioner to return to work, all of them fell on
deaf ears.

35. Respondent company thus scheduled an Administrative Hearing

on 29 June 2015 for the petitioner to be given opportunity to be
heard against her infractions on AWOL and Dishonesty.
However, petitioner failed to attend the said hearing despite
due notice.

36. Due to the failure of the petitioner to attend to the scheduled

hearing and for humanitarian consideration to her, it was
rescheduled on 7 July 2015. Unfortunately, still, the latter
failed to appear despite due notice.

37. Thus, the respondent company was constrained to file a

criminal case against petitioner on 6 July 2015 for Qualified
Theft before the Office of the City Prosecutor of Quezon City.

38. On 20 August 2015, respondent company sent petitioner Notice

of Termination. Attached hereto as ANNEX 7 in the
Respondents’ Memorandum of Appeal is a copy of the LBC
Receipt indicating that the said Notice was delivered to
petitioner on 21 August 2015.

39. On the other hand, a Decision dated 30 March 2016 rendered by

Honorable Labor Arbiter Fedriel S. Panganiban, which was
received by respondents through counsel on 30 April 2016, to
wit:

"WHEREFORE premises considered, judgment is

hereby rendered, finding respondents guilty of
illegal dismissal. Concomitantly, respondents
are ordered to pay complainant her backwages
and separation pay plus ten (10%) percent of
the total judgment award of way of and/as
attorney’s fees, computed as follows:

BACKWAGES 186,978.97
SEPARATION PAY 32,000.00
ADD: ATTY’S FEES 21,897.90

GRAND TOTAL P240,876.87”

40. Thus, private respondents timely filed their appeal on 10 May

2016 or within ten (10) days from the receipt of the
abovementioned decision.

41. On 16 June 2016, private respondents also filed its

Supplemental Appeal with Motion to Admit before the
Honorable Commission of the respondent NLRC.

Page 7 of 22
42. On 30 June 2016, the Honorable Third Division of the NLRC
rendered a decision on the private respondents’ appeal, to wit:

“WHEREFORE, premises considered, the appeal is

GRANTED, and the Decision dated March 30, 2016 is
ordered VACATED and SET ASIDE.”

43. Aggrieved, the petitioner filed her Motion for Partial

Reconsideration on the Decision on 7 July 2016.

44. However, on 30 September 2016, the Honorable Third Division

of the NLRC resolved the Motion for Partial Reconsideration, as
follows:

“ACCORDINGLY, let the instant Motion for Partial

Reconsideration, be, as it is hereby, DENIED for
lack of merit. The Decision of this Honorable
Commission dated June 30, 2016 STANDS
undisturbed.”

45. On 23 November 2016, private respondents notified the

petitioner and the Honorable Commission of the change of
address of the respondent company through a Manifestation of
Change of Address15.

46. Unknown to the private respondents, petitioner filed this

instant Petition for Certiorari on 6 December 2016. However, a
perusal of the petition would show that petitioner served a
copy of the petition to the old address of the respondent
company as indicated under the Copy Furnished portion of the
petition.

47. On 11 January 2017, pursuant to the Rules of Procedure of the

National Labor Relations Commission, an Entry of Judgment
was issued by the Honorable Commission which provides that
the resolution rendered by the Honorable Commission dated 30
September 2016 became final and executory on 6 December
2016 and is hereby recorded in the Book of Entries of
Judgment.

48. On 24 January 2017, the private respondents filed before the

Office of Honorable Labor Arbiter Fedriel S. Panganiban a
Motion to Release Appeal Bond for the said office to release
the appeal bond filed by private respondents in excess of the
award.

49. In the scheduled Pre-Execution Conference on 7 February 2017

called for the purpose of hearing the Motion filed by the private
respondents, the petitioner did not even mention that she filed

15
Please see ANNEX A of the Motion to Admit of the Respondents.

Page 8 of 22
 a Petition for Certiorari before this Honorable Court of Appeals
nor did she even furnish the respondents a copy thereof.

50. It was only through the Notice of Resolution from this

Honorable Court, directing the private respondents to file a
Comment/Opposition to the Petition for Certiorari filed by
petitioner on 6 December 2016 that private respondents knew
that a petition was filed by the petitioner.

51. On 26 April 2017, private respondent thru counsel filed their

Comment to the Petition for Certiorari.

52. On 01 June 2018, the private respondents received a Resolution

dated 18 May 2018 of this Honorable Court requiring the former
to submit its Memorandum.

53. Thus this Memorandum for the Private Respondent.

ISSUES FOR RESOLUTION

I.

WHETHER OR NOT THE PETITIONER WAS ILLEGALLY DISMISSAL

BY PRIVATE RESPONDENTS.

A.

WHETHER OR NOT THE HONORABLE NATIONAL LABOR

RELATIONS COMMISSION CORRECTLY CONSIDERED THE
DOCTRINE OF TOTALITY OF INFRACTION.

II.

WHETHER OR NOT THE PETITIONER IS ENTITLED TO

BACKWAGES, SEPARATION PAY, AND ATTORNEY’S FEES

DISCUSSION

I. The Public Respondent did

not commit any grave abuse of
discretion amounting to lack of, or
in excess of jurisdiction when it
declared that the petitioner was
not illegally dismissed.
x-----------------------------------------x

54. Respondents respectfully submit that the public respondent was

correct when it ruled that the dismissal of the petitioner is
legal and is based on a just cause.

55. The crux of the controversy stemmed from the undisputed fact
that on May 4, 2015, petitioner submitted her Application for

Page 9 of 22
 Leave of Absence16 for three (3) days from May 6, 2015 to May
8, 2015. However, the said Application for Leave was denied by
private respondents.

56. However, despite the fact that the said Application for Leave of
Absence being denied, petitioner still failed to report to work
the following day or on May 5, 2015, making her absent.

57. Despite repeated calls from the Management to ask her

whereabouts, complainant-appellee still failed to notify the
respondent company and failed to report back for work.

58. As a result of her absence, a Memorandum17 was again issued to

the petitioner on May 8, 2015 by respondent company informing
her that she incurred infractions and violations against company
rules and policies. However, petitioner did not respond to the
said Memorandum and still did not report to work for the
subsequent days not until May 12, 2015.

59. Unfortunately, on May 12, 2015, a Notice to Explain due to

Gianan’s unyielding character of being tardy and always absent,
though titled as such Notice to Explain, mistakenly and
erroneously indicated that Gianan was then dismissed from
work. The correct and proper phraseology of the statement
should have been that Gianan may be dismissed from
employment if found guilty of breach of trust and confidence
being an employee holding high trust and confidence from the
management.

60. In this case, there was no dismissal to speak of considering that

the Notice of Termination dated May 12, 2015 received by
petitioner was merely an honest mistake on the part of the
respondents which they corrected eventually.

61. Thus, a correct Notice to Explain dated May 13, 201518 was sent
and personally received by complainant-appellee on May 14,
2015, as shown by the photo of complainant-appellee and LBC
Receipt, requiring her to explain why she should not be
terminated in relation to her frequent and unauthorized
absences including her numerous infractions of company rules
and policies.

62. Furthermore, to exhibit good faith, the moment Management

knew about the erroneous Notice to Explain, they corrected
such error by communicating and reaching complainant-
appellee to all means possible.

16
Please see ANNEX “2” of the Respondents’ Memorandum of Appeal.
17
See Annex 6- 3 of Respondents’ Position Paper.
18
Please see ANNEX 3 of this Memorandum of Appeal.

Page 10 of 22
63. As such, On May 15, 2015, a Letter19 recalling the previously
sent Notice to Explain dated May 12, 2015 was sent and
received by petitioner. Attached as Annex 7-1 and 7-2 in the
Respondents’ Position Paper20 were the subscribed statement of
Jorge Bacungan and the LBC Receipt dated May 15, 2015 to
show that the Letter recalling the erroneous Notice of
Termination was immediately served and delivered to the
petitioner.

64. However, petitioner adamantly refused to receive the letter

and even refused to report back to work despite the
respondents’ numerous notice to her to return to work.

65. In fact, it was petitioner who failed to participate the

subsequent proceedings made by the respondents despite
sufficient notices such as the scheduled Administrative Hearing
on June 29, 2015 and July 7, 2015 to be given opportunity to be
heard against her infractions on AWOL and Dishonesty.

66. This lead to the petitioner’s dismissal on August 20, 2015 as per
the Notice of Termination sent to the petitioner via courier as
on August 21, 2015 as evidence by the LBC Receipt as attached
as ANNEX 7 on respondents’ Memorandum of Appeal.

67. As shown in the above undisputed facts, private respondents

did everything possible to inform the petitioner of her
infractions and gave her opportunity to be heard, however, it
was petitioner who failed to avail of this opportunity and
choose instead to file a labor complaint.

68. Contrary to the allegation of the petitioner, private

respondents never falsified nor fabricated any document just to
deceive the public respondent in deciding in its favor. The
public respondent, being one of the primary agencies of our
government in upholding labor laws and policy is in the best
position to determine the factual basis and antecedent of the
instant case.

69. It is quite amusing that the petitioner is still denying that she
received the memorandums and notices to explain issued by the
private respondents to her, when in truth and in fact it was
already established that she received the said memorandums
and notices by the evidence submitted by the respondents, a
picture of the petitioner holding the notice to explain issued by
the respondents, which the petitioner posted on her own social
media account.

70. Again, the malicious allegation of the petitioner that the public
respondent should not have considered the previous infractions

19
Please see Annex 6 of the Position Paper of the Private Respondent.
20
Please see Annex 7-1 and 7-2 of the Position Paper of Respondent.

Page 11 of 22
 of the petitioner for being fabricated should not be given any
probative value. The petitioner did not provide any evidence to
prove her malicious allegations, thus, it cannot defeat the clear
and convincing evidence presented by the respondents to
support its arguments. As held by the Supreme Court in the
case of LNS International Manpower Services vs. Padua, Jr.,21

“The self-serving and unsubstantiated allegations of

respondent cannot defeat the concrete evidence
submitted by petitioner.” (Emphasis ours)

71. In fact, petitioner has not yet offered any evidence to counter
the existence or the contents of these allegedly fabricated
documents when in fact it is incumbent upon her to present
such. It is a basic rule in evidence that each party must prove
his affirmative allegation, that mere allegation is not
evidence.22

72. As correctly held by the public respondent, there is a

substantive due process present in this case to justify the
dismissal of the petitioner.

73. Substantive due process simply dictates that no arbitrary

whimsical dismissal of an employee may be effected by the
employer. In this case, there are sufficient just causes
present.

74. As correctly ruled by the public respondent, the doctrine of

“Totality of Infraction Rule” is applicable in this case by
putting all the infractions committed by the petition such as:
Insubordination23, Frequent absences and tardiness24, AWOL25
and Dishonesty, thus, there is more than substantial valid and
just cause to warrant her termination.

75. Petitioner’s failure to comply with the denial of her Application

of Leave of Absence as well as her failure to heed with the
return to work orders issued to her on her absences on May 5-
11, 2015 constitute as insubordination.

76. Contrary to the allegation of the petitioner, her Application of

Leave of Absence was not falsified. Aside from the fact that she
presented no evidence that it was falsified, petitioner also did
not offer any proof that her leave application was approved.

77. Aside from Insubordination, petitioner also exhibited so many

tardiness and absences for the months of March, April and May

21
G.R. No. 179792, March 5, 2010.
22
Lopez vs. Bodega City, G.R. No. 155731, September 3, 2007.
23
Please see Annex 6-1 of Respondents’ Position Paper.
24
Please see Annex 6-2 of Respondents’ Position Paper.
25
Please see Annex 6-3 of Respondents’ Position Paper.

Page 12 of 22
 of 2015 alone as shown in the Notice to Explain26 dated May 8,
2015 which was received by the petitioner. Her frequent
absences and tardiness despite notice to the effect did not
indicate any reformation nor any intent to abide the same.
78. Her absences alone from May 5 to 11, 2015 already constitute
as Absence Without Official Leave (AWOL) which under the
company policy and rules and regulation is punishable of
termination.

79. Contrary to her allegation, her failure to report for work was
not due to an emergency but due to her family reunion as
stated in the complainant-appellee’s Application for Leave of
Absence27.

80. These numerous absences, tardiness and AWOL were not

isolated incidents but manifested a pattern of habituality and
disinterest to her job.

81. Petitioner’s treating these habitual tardiness, absenteeism and

AWOL as simple and insignificant is misplace considering that
this manifest lack of initiative, diligence and dedication to her
job, thus, resulting to inefficacy and unproductiveness.

82. Also, this kind of indifference and lack of motivation in work is

inimical to the general productivity and business of the
respondent company. This is especially true when it occurred
frequently and repeatedly within an extensive period of time
and despite several warnings.

83. Incidentally, petitioner alleges that the company policy on

absences and tardiness is relatively a new policy and should not
be applicable to her being a long-time employee of the
respondent company. However, petitioner should understand
that the respondent company is given by our laws and
jurisprudence a wide latitude of discretion to conduct its own
affairs and to formulate, update and implement policies, rules
and regulation.

84. It is recognized that company policies and regulations, unless

shown to be grossly oppressive or contrary to law, are generally
valid and binding on the parties and must be complied with.

85. In this case, petitioner did not proffer any evidence that the
company policy on absence and tardiness is grossly oppressive
or contrary to law. In fact, what matter is that the petitioner is
well-informed of the new policies of the respondent company
and should comply the same.

26
Please see Annex 6-3 of Respondents’ Position Paper.
27
Please see ANNEX 2 of this Memorandum of Appeal.

Page 13 of 22
86. Also, even assuming that there is no company policy with
respect to absences and tardiness, such absence of a company
policy should not be used as a loophole by the petitioner to
escape her liability for gross and habitual neglect of her duties.
As held by the Supreme Court in the case of Mansion Printing
Center vs. Bitara Jr.,28

“Clearly, even in the absence of a written

company rule defining gross and habitual
neglect of duties, respondent’s omissions
qualify as such warranting his dismissal from
the service.

We cannot simply tolerate injustice to

employers if only to protect the welfare of
undeserving employees. As aptly put by then
Associate Justice Leonardo A. Quisumbing:

Needless to say, so irresponsible an

employee like petitioner does not deserve a
place in the workplace, and it is within the
management’s prerogative xxx to terminate his
employment. Even as the law is solicitous of the
welfare of employees, it must also protect the
rights of an employer to exercise what are clearly
management prerogatives. As long as the
company’s exercise of those rights and prerogative
is in good faith to advance its interest and not for
the purpose of defeating or circumventing the
rights of employees under the laws or valid
agreements, such exercise will be upheld.”
(Emphasis ours)

87. It is also important to note that petitioner committed

dishonesty by receiving money from the company for a
supposed meeting with a prospective client from Hafele Phils.
in the name of Jenilyn A. Mesa, Inc. but upon verification,
there was no meeting that transpired.

88. Records will show that petitioner requested for reimbursement

of the amount of Seven Hundred Ninety-Eight Pesos
(PhP798.00)29 on April 10, 2015 as food for three persons and
transportation costs and the said amount was received by
petitioner on April 14, 201530. However, upon verification from
Ms. Jenilyn A. Mesa31, there was no meeting that transpired and
the said money was never used for what it was intended for.

28
G.R. No. 168120, January 25, 2012.
29
Please see Annex 1 of the Respondents’ Position Paper.
30
Please see Annexes 2 and 3 of the Respondents’ Position Paper.
31
Please see Annex 4 of the Respondents’ Position Paper.

Page 14 of 22
89. Such act of the petitioner is considered as dishonesty and a
willful breach of trust considering that she is occupying a
position which requires utmost trust and confidence.

90. An act of dishonesty by an employee who has been put in

charge of the employer's money and property amounts to
breach of the trust reposed by the employer, and normally
leads to loss of confidence in her. Such dishonesty comes
within the just and valid causes for the termination of her
employment under Article 282 of the Labor Code”32.

91. While it may be argued that the amount involved in this case is
too minimal to constitute as a ground for termination, however,
considering the trust and confidence given by the respondent
company lost as a result to the act is already a sufficient and
valid cause to terminate the petitioner.

92. In the case of Firestone Tire and Rubber Company of the

Philippines v. Lariosa33 involving an employee who was caught
by the security guards of the company during a routine
inspection with possession of company property, the Supreme
Court held that:

“There is no gainsaying that theft committed by an

employee constitutes a valid reason for his dismissal
by the employer. Although as a rule this Court leans
over backwards to help workers and employees
continue with their employment or to mitigate the
penalties imposed on them, acts of dishonesty in the
handling of company property are different matter.”

93. With all the foregoing valid and just causes as correctly found
by the public respondent, there is substantial just cause to
terminate the petitioner. Hence, petitioner was not illegally
terminated.

A. The Public Respondent was

correct when it ruled based
on the Totality of Infraction
Rule.
x-----------------------------------x

94. The Honorable public respondent is correct in ruling upon the

infractions committed by the petitioner and applying the
“Totality Rule”. The infractions committed by the petitioner
are factors in determining her fitness for continued
employment. Instructive is the case of Valiao vs. Court of
Appeals34 wherein the Supreme Court held that:

32
Gargoles vs. Del Rosario, G.R. No. 158583 September 10, 2014.
33
232 Phil 201 (1987).
34
G.R. No. 146621, July 30, 2004.

Page 15 of 22
 “xxx It bears stressing that petitioner’s absences
and tardiness were not isolated incidents but
manifested a pattern of habituality. xxx The
totality of infractions or the number of
violations committed during the period of
employment shall be considered in determining
the penalty to be imposed upon an erring
employee. The offenses committed by him
should not be taken singly and separately but in
their totality. Fitness for continued employment
cannot be compartmentalized into tight little
cubicles of aspects of character, conduct, and
ability separate and independent of each other.”
(Emphasis ours)

95. As alleged by the petitioner, her numerous absences and

tardiness were not yet the subject of any disciplinary actions.
However, these past infractions for which the employee has not
yet penalized can still be cited as basis for administrative
sanctions.

96. In R.B. Michael Press vs. Galit35, the Supreme Court cited as
bereft of legal basis, the finding of the CA, that petitioners
cannot use the previous absences and tardiness of the
employee (who was tardy for a total of 190 times, totaling to
6,117 minutes, and was absent without leave for a total of
nine and a half days) because respondent was not subjected to
any penalty therefor. The ruling in the case of Filipro vs. The
Hon Minister Blas F. Ople36, was not applied in this case. The
Supreme Court, quoting then Labor Minister Blas F. Ople, ruled
in said case that past infractions for which the employee has
suffered the corresponding penalty for each violation cannot
be used as justification for the employee’s dismissal for that
would penalize him twice for the same offense. At most, it was
explained “these collective infractions could be used as
supporting justification to a subsequent similar offense.” In
contrast, petitioners in this case at bar did not impose any
punishment for the numerous absences and tardiness of the
respondent. Thus, said infractions can be used collectively
by petitioners as a ground for dismissal.

97. Also, the petitioner cannot just rely on its bare allegation that
her Application for Leave of Absence were approved since the
evidence is very clear that it was not approve. It is upon the
petitioner to prove by contradictory evidence that the said
leave is approved.

98. Furthermore, petitioner cannot just dismiss and neglect her

absences and tardiness as simple and insignificant considering

35
GR No. 153510, February 1, 2008.
36
G.R. No. 72129, February 7, 990, 182 SCRA 1, 3-4.

Page 16 of 22
 that her position as Account Executive requires utmost
presence and efficiency.

99. The petitioner is also using the argument that allegedly, the
respondents has no company policy with respect to punishments
for habitual absenteeism and tardiness to justify her
wrongdoings despite the fact that respondents were able to
present a signed copy of the company policy on absences and
tardiness37.

100. However, this desperate attempt to escape any liability should

not be condoned by this Honorable Court. As held by the
Supreme Court in the case of Realda vs. New Age Graphics
Inc.,38

“This Court cannot condone the petitioners attempt

to belittle his habitual tardiness and absenteeism as
these are manifestation of lack of initiative,
diligence and discipline that are adverse to Graphics,
Inc.s interest. In Challenge Socks Corporation v. Court
of Appeals, this Court said that it reflects an
indifferent attitude to and lack of motivation in
work. It is inimical to the general productivity and
business of the employer. This is especially true when it
occurred frequently and repeatedly within an extensive
period of time and despite several warnings.” (Emphasis
ours).

101. The respondents expect their employees to be punctual and

present every working day for it shows that they do not neglect
their duties and are fit for continued employment in the
company. Habitual absenteeism and tardiness of the petitioner
constitutes gross neglect of her duties and the respondents
should not be forced to retain the services of the petitioner
if she is a liability instead of being an asset due to her
habitual absenteeism and tardiness. As held by the Supreme
Court in the case of Carvajal vs. Luzon Development Bank,39

“Punctuality is a reasonable standard imposed

on every employee, whether in government or
private sector. As a matter of fact, habitual
tardiness is a serious offense that may very
well constitute gross or habitual neglect of
duty, a just cause to dismiss a regular
employee. Assuming that petitioner was not
apprised of the standards concomitant to her job,
it is but common sense that she must abide by the
work hours imposed by the bank.” (Emphasis
ours).
37
Please see ANNEX “8” of the Respondents’ Memorandum of Appeal.
38
G.R. No. 192190, April 25, 2012.
39
G.R. No. 186169, August 1, 2012

Page 17 of 22
102. The respondents even gave the petitioner several chances to
reform her infractions considering that she was not given any
disciplinary action for her earlier infractions. It is clear from
the pieces of evidence presented by the respondents that the
petitioner was given several notices to explain for her
infractions. However, the petitioner did not give any
explanation for her infractions nor did she tried her best to
reform, therefore, the respondents has no choice but to dismiss
the petitioner for gross neglect of her duties.

103. Also, the petitioner’s argument that the penalty imposed by the
respondents is too harsh is not tenable. The respondents
considered all the infractions of the petitioner in coming up
with the decision to dismiss the latter. The respondents cannot
be obliged to disregard altogether the infractions committed by
the petitioner especially if the latter is already a liability due
to her habitual absenteeism and tardiness. As held by the
Supreme Court in the case of St. Luke’s Medical Center vs.
Quebral,40:

“Furthermore, it goes without saying that the

record of an employee is a relevant consideration
in determining the penalty that should be meted
out on him. As correctly argued by petitioner,
fitness for continued employment cannot be
compartmentalized into tight little cubicles of
aspects of character, conduct and ability separate
and independent of each other. Thus, we cannot
oblige petitioner to disregard altogether
Quebral’s previous violations when determining
the penalty to be imposed on him for his latest
offense as if it was the first time he violated
company rules. Moreover, Quebral has no vested
right to petitioner’s compassion. Just because
petitioner was compassionate to him numerous
times in the past when he violated company
rules does not give him the right to demand the
same compassion this time on the ground of
social justice. As this Court ruled, social justice
and equity are not magical formulas to erase the
unjust acts committed by the employee against his
employer.” (Emphasis ours)

104. The respondents have the right to dismiss for just cause the
petitioner as part of its management prerogative. The
respondents established by clear and convincing evidence the
petitioner’s infractions which constitute gross neglect of her
duties. The respondents cannot be forced to retain the services
of the petitioner who does not value her work. As held by the

40
G.R. No. 193324, July 23, 2014

Page 18 of 22
 Supreme Court in the case of Century Iron Works Inc. vs.
Banas,41

“Besides, the determination of who to keep in

employment and who to dismiss for cause is one of
Century Iron's prerogatives. Time and again, we
have recognized that the employer has the right
to regulate, according to its discretion and best
judgment, ell aspects of employment, including
work assignment, working methods, processes to
be followed, working regulations, transfer of
employees, work supervision, lay-off of workers
and the discipline, dismissal and recall of
workers. It would be the height of injustice if we
force an employer to retain the services of an
employee who does not value his work.”
(Emphasis ours)

105. The right of the employer to dismiss its erring employee is a

measure of self-protection42. The power to dismiss an employee
is a recognized prerogative that is inherent in the employer’s
right to freely manage and regulate his business. The worker’s
right to security of tenure is not an absolute right, for the law
provides that she may be dismissed for cause.

106. It is also worth noting that petitioner’s contention that the

nominal damage ruled by the public respondent alleged being
incorrect is not tenable in this case.

107. Note that this issue has not been raised anymore by the
petitioner during their Partial Motion for Reconsideration;
therefore, they are already inconformity with the said
resolution of the public respondent on the issue.

108. Furthermore, the resolution of the public respondents on the

nominal damages is correct considering that it found that valid
or just causes are present in this case but the respondent
company merely failed to comply with the procedural due
process.

109. In Agabon v. National Labor Relations Commission43, it was

held that where the dismissal is for a just cause, as in the
instant case, the lack of statutory due process should not nullify
the dismissal, or render it illegal, or ineffectual. However, the
employer should indemnify the employee for violation of his
statutory rights.

110. Also, applying Agabon, the Court, in Central Luzon

Conference Corporation of Seventh Day Adventist Church,
41
G.R. No. 184116, June 19, 2013
42
Reyes vs. Minister of Labor, GR No. 48705, February 9, 1989.
43
G.R. No. 158693, November 17, 2004, 442 SCRA 573, 616.

Page 19 of 22
 Inc. v. Court of Appeals44, modified the decision of the Court
of Appeals by awarding P30,000.00 to an employee who was
dismissed for just cause but was not afforded due process. As
explained by the Court:

“The violation of the petitioners’ right to statutory due

process by the private respondent warrants the payment of
indemnity in the form of nominal damages. The amount of
such damages is addressed to the sound discretion of the
court, taking into account the relevant circumstances
(Savellano v. Northwest Airlines, G.R. No. 151783, 8 July
2003, 405 SCRA 416). Considering the prevailing
circumstances in the case at bar, we deem it proper to fix
it at P30,000.00. We believe this form of damages would
serve to deter employers from future violations of the
statutory due process rights of employees. At the very
least, it provides a vindication or recognition of this
fundamental right granted to the latter under the Labor
Code and its Implementing Rules.

II. The Public Respondent did

not commit any grave abuse
of discretion amounting to
lack of, or in excess of
jurisdiction when it ruled
that petitioner is not entitled
to her money claims.
x------------------------------------x

111. Since there is no illegal dismissal to speak of, the petitioner is

not entitled to any and all of her monetary claims.

112. Considering that the private respondents did not illegal

terminated her employment, she is not entitled to separation
pay and backwages. An employee’s entitlement to separation
pay is dependent on the cause of termination. The company, in
complying with the mandates of the disciplinary due process,
was still waiting in the processing the due process requirement
when she filed this instant case.

113. Also, petitioner was not illegally dismissed nor her rights were
grossly violated by the respondent company therefore it is
impossible that the company caused the moral suffering,
mental anguish, fright and the like to the private respondent.
As held by the Supreme Court in the case of Garcia vs. NLRC45,

“Moral damages are recoverable only where the

dismissal of the employee was attended by bad
faith or fraud or constituted an act oppressive

44
G.R. No. 161976, August 12, 2005.
45
G.R. No. 110518.

Page 20 of 22
 to labor or was done in a manner contrary to
morals, good customs or public policy.”

114. Similarly, she is not entitled to exemplary damages since there

is no violation of her rights which was effected in a wanton,
oppressive or malevolent manner.

115. With respect to attorney’s fees, the same is unwarranted. The

filing of the instant complaint is unfounded considering that it
was premature and short of any basis since the company never
violated her right nor withheld her salary to force her to
litigate her right.

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed for that the PETITION FOR CERTIORARI filed by petitioner
Gianan be ordered DISMISSED for utter lack of merit.

Other just and equitable reliefs are likewise prayed for.

Respectfully submitted. Quezon City.

18 June 2018.

SANGALANG & GAERLAN, BUSINESS LAWYERS

Counsel for Private Respondents
Units 1004 and 1006, The One Executive Office Building
#5 West Avenue corner Martinez St., Quezon City
T: 353-4274; 208-2606 C/F: 0905-265-6760

APOLLO X.C.S. SANGALANG

IBP Lifetime No. 06541; IBP-PPLM Chapter
PTR No. QC 6043006-02/27/2018
MCLE Compliance No. V-002-1060
Roll of Attorney No. 40222

MARVYN A. GAERLAN
IBP No. AR001029 / 01-08-18 / IBP Quezon City
PTR No. 5727393 / 01-22-18 / Quezon City
Roll of Attorneys No. 60521
MCLE COMPLIANCE NO. V-0009079
07/15/2015

GERALD DICK B. BARO

IBP O.R. No. 014115; IBP-Manila II Chapter
PTR No. 5913246- QC-02/08/2018
Page 21 of 22
 MCLE Exempt per B.M. 850
Roll of Attorney No. 65913

NATHALIE L. PATTUGALAN
IBP No. AR002301; 2/19/18 - IBP-Quezon City
PTR No. 5981125 / 02/19/18 - Quezon City
Roll of Attorneys 67910
MCLE Exempt (Signed Roll of Attorneys 2017)

Copy Furnished:

Atty. Catherine G. Dela Cruz

Room 206 JIAO Bldg.
No. 2 Timog Avenue
Quezon City

Maureen Angeli A. Guinan

1004 Pipino Street
Napico Manggahan
Pasig City

WRITTEN EXPLANATION
FOR SERVICE BY REGISTERED MAIL

THE CLERK OF COURT

Special Fourth Division
Court of Appeals
Manila

Sir/Madame:

Please be informed that the undersigned was unable to

personally serve copies of the foregoing Memorandum on the above-
mentioned office and/or parties and was constrained to serve the
said Memorandum by registered mail as evidenced by the attached
Affidavit of Service By Registered Mail due to the shortage of
available manpower to effect personal service and time constraints.

GERALD DICK B. BARO

Page 22 of 22