Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region Arbitration Branch
Quezon City

NESTOR B. BAJO JR. ET AL,

Complainants-Appellees
NLRC NCR CASE NO. 12-15523-16

- versus -

LIBERTY FLOUR MILLS INC. ET AL,

Respondents-Appellant

x ---------------------------------------------x

MEMORANDUM OF PARTIAL APPEAL

WITH NOTICE OF APPEAL

COMES NOW, the Complainant-Appellant, through the undersigned

counsel, and unto this Honorable Commission, hereby respectfully files this
Notice of Partial Appeal from the Decision of Honorable Labor Arbiter Rosalina
Maria O. Apita-Battung in the above-entitled case, dated July 27, 2017, a copy of
which was received by Respondent-appellant Kaakbay Sa Kinabukasan Labor
Service Cooperative on August 15, 2017 and respectfully appeals the same to the
Honorable Commission.

Respectfully Submitted.

Quezon City, Philippines, August 24, 2017

ARACELI B. GLORIA
Counsel for Respondent-Appellant, KSKLSC
70-B Starmobile Building Kapitolyo Pasig
City
Tel No.: 447-2777
Roll No. 69656
IBP No. 0021766, 05/12/17 Bulacan
PTR No. 3160063, 06/06/17 Pasig City
MCLE Compliance No:. N.A.
(Admitted to the Bar on 2 June 2017)
 Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region Arbitration Branch
Quezon City

NESTOR B. BAJO JR. ET AL,

Complainants-Appellees
NLRC NCR CASE NO. 12-15523-16

- versus -

LIBERTY FLOUR MILLS INC. ET AL,

Respondents-Appellant

x ---------------------------------------------x

MEMORANDUM OF PARTIAL APPEAL

Respondent-appellant, unto this Honorable Commission, most respectfully

submits this Memorandum of Partial Appeal and avers that:

Respondent-appellant, serves this Notice that Kaakbay Sa Kinabukasan Labor

Service Cooperative is appealing the Decision of the Honorable Labor Arbiter Rosalina
Maria O. Apita-Battung on July 27, 2017, to the National Labor Relations Commission,
the same being contrary to the facts and evidence adduced, the law and applicable
jurisprudence. A copy of the Decision is hereto attached as Annex “A”.

TIMELINESS OF THE APPEAL

Respondent-appellant, received a copy of the July 27, 2017 Decision of sthe

Arbiter on August 15, 2017. Finding this case impressed with merit, respondent-
appellant respectfully submits this PARTIAL APPEAL within thee prescriptive period of
tem (10) days or until August 25, 2017. Hence this Partial Appeal is timely filed on
August 25, 2017.

PREFATORY STATEMENT

“In the present case, the petitioners were not dismissed,

either legally or illegally; the petitioners abandoned their
jobs. They failed to return to work despite the respondent’s
directive requiring them to do so. There is, thus, no room
for the award of financial assistance in the form of
separation pay. To sustain the claim for separation,
pay under the circumstances herein established would
be to reward the petitioners for abandoning their
work. As we emphasized in the case of A Prime Security
 Services, Inc. v. NLRC, social justice is extended only to those
who deserve its compassion.”1 (Emphasis Ours)

STATEMENT OF THE CASE

This is a labor case filed by the complainant-appellee for Underpayment of

Overtime Pay, Regularization, Moral and Exemplary Damages, Attorneys Fees, CBA
Benefits, Refund of Member Fixed Deposit and Refund of Savings.

THE PARTIES

Complainants-appellees (Complainants, for brevity) are of legal age, Filipino

citizens, and regular member-owners of Respondent-appellant KSKLSC since December
7, 2015. They may be served with summons and other processes through their lead
complainant Nestor B. Bajo, Jr. at 584 F. Blumentritt St., Hulo, Mandaluyong City. 2

Respondent-appellant Kaakbay Sa Kinabukasan Labor Service Cooperative

(Respondent KSKLSC, for brevity) is a cooperative duly organized and registered
under the existing laws in the Philippines. It obtained its Certificate of Registration No.
111-093-0315-617 issued ib the 2nd of March 2015 by the Department of Labor and
Employment and Certificate of Registration Np. 9520-03024425 issued on 23rd of June
2014. 3 It is herein represented by Mr. Gavino E. Amado, its Officer-In-Charge, and may
be served with summons and other processes in its main office address at Unit #10
Dahlia corner Ilang-ilang St., Brgy. Dau Mabalacat, Pampanga.

STATEMENT OF FACTS

1. Respondent KSKLSC and Liberty Flour Mills (Liberty for brevity) entered into
Service Agreement covering the term from the 1st of January 2016 to 31st of
December 2016 where Liberty farms out its activity to meet extraordinary business
exigencies/opportunities due to demand in volume, and special orders/products and
to outsource non-core functions being performed in the corporation.

2. Respondent KSKLSC assigned its member-owners including herein Complainants. On

November 14, 2016 herein complainants filed their complaint claiming non-payment
of Overtime and Special Holiday, underpayment of SIL, Illegal Deductions, Tenure of
Employment.

3. On a scheduled conference in 23rd of November 2016, Complainants requested

Respondent KSKLSC to provide them their Certificate of Employment and
Employment Contract.

4. During the scheduled conference, last 1 December 2016, KSK provided the
Complainants their Certificate of Employment, Employment Contract, and Statement
of Members Accounts. Complainants requested KSK to pay their Separation pay
which will result of their separation from KSK.

1 RODOLFO GABUAY et al. vs. OVERSEA PAPER SUPPLY, INC. and/or TAN LIAN SENG, respondents. G.R. No.
148837. August 13, 2004
2 Copies of Employment Contract marked as Annex “D-1”, “D-2”, “D-3”, “D-4” and “D-5” in KSKLSC’s Position paper
3 Copies of DOLE and CDA Registration marked as Annex “A” and Annex “B” in KSKLSC’s Position paper
5. Parties appeared on scheduled final conference on 13 December 2016, KSK provided
them their separation pay. However, only Melvin Guimoro accepted the separation
pay out of the original thirteen (13) Complainants. While seven, namely Jeffrey
Fajura, Pio Abnis Jr., Michael De Leon, Romeo Sison Jr., Marvin Ison, Bernardo
Dulay and Isagani Magdato agreed to return to work. The remaining five
Complainants decided to proceed with the case to NLRC.

6. Beginning December 19, 2017, Complainants willfully and deliberately refused to

report for work despite due notice and advised to return to work from Respondent
KSKSLSC.

7. In the NLRC mandatory conference held on 3rd of January 2017, Complainants

manifested their desire to severe their membership and employment to the
Cooperative but seek regularization from herein principal, Liberty.

8. On July 27, 2017, the Honorable Labor Arbiter promulgated a Decision, the
dispositive portion of which reads:

“WHEREFORE, premises, judgment is rendered as follows:

1. Declaring LIBERTY as the employer of

complainant Nestor B. Bajo, Jr. As such, LIBERTY is
ordered to reinstate Bajo to his former position within ten
(10) days from receipt, hereof without loss of seniority
rights, privileges and benefits. In the event that Bajo is not
reinstated, LIBERTY is ordered to pay back wages from
receipt hereof, LIBERTY is ordered to pay back wages from
receipt hereof, until finality of this decision. Should Bajo
refuse reinstatement, he is deemed to have abandoned his
employment.

2. Declaring ASIAPRO and KAAKBAY as the

employers of complainants, James Rudolf Mones, Alvin
Porazo, Gilbert Acuba Jr., and Ronald Dacumos. Hence,
their claim for reinstatement with LIBERTY is denied.
However, ASIAPRO and KAAKBAY are jointly and severally
ordered to pay separation pay in the form of financial
assistance equivalent to one month pay for every year of
service computed as follows:
Complainant Period of Employment Computation TOTAL
Mones 12/12/12 to 12/20/16 P491x26x4 years P51,064

Porazo 9/8/2008 to 12/20/16 P491x26x7 years P89,362

Acuba, Jr. 8/1/2007 to 12/20/16 P491x26x8 years P102,128

Dacumos 9/6/20105 to 12/20/16 P491x26x10 years P127,660

3. In addition, respondents ASIAPRO and

KAAKBAY are jointly and severally ordered to refund to
individual complainants their P10,000.00 fixed savings
deposit.

9. This questioned Decision is the subject of this instant Partial Appeal.

 GROUNDS RELIED UPON

WITH DUE RESPECT, THE LABOR ARBITER COMMITTED

GRAVE ABUSE OF DISCRETION AND COMMITTED
SERIOUS ERRORS IN HIS FINDINGS OF FACTS WHEN HE
RENDERED HIS DECISION WHICH IF NOT CORRECTED,
WOULD CAUSE GRAVE AND IRREPARABLE DAMAGE OR
INJURY TO THE RESPONDENT-APPELLANT KSKLSC.

ARGUMENTS

I.

THE HONORABLE LABOR ARBITER GRAVELY ABUSED HER

DISCRETION AND SERIOUSLY ERRED WHEN SHE RULED THAT
COMPLAINANT BAJO SHOULD BE REINTATED AS REGULAR
EMPLOYEE OF LIBERTY

II.

THE HONORABLE LABOR ARBITER GRAVELY ABUSED HER

DISCRETION AND SERIOUSLY ERRED WHEN SHE RULED THAT
ASIAPRO AND KAAKBAY ARE JOINTLY AND SEVERALLY LIABLE
TO PAY SEPARATION PAY IN THE FORM OF FINANCIAL
ASSISTANCE

DISCUSSION/ ARGUMENTS

For the discussion of this Honorable Commission, Respondent KSKLSC reiterates

its arguments and discussions set out in his previous pleadings.

I.
THE HONORABLE LABOR ARBITER GRAVELY ABUSED HER
DISCRETION AND SERIOUSLY ERRED WHEN SHE RULED THAT
COMPLAINANT BAJO SHOULD BE REINTATED AS REGULAR
EMPLOYEE OF LIBERTY

II.

THE HONORABLE LABOR ARBITER GRAVELY ABUSED HER

DISCRETION AND SERIOUSLY ERRED WHEN SHE RULED THAT
ASIAPRO AND KAAKBAY ARE JOINTLY AND SEVERALLY LIABLE
TO PAY SEPARATION PAY IN THE FORM OF FINANCIAL
ASSISTANCE

Taking into consideration that the issues are materially intertwined and intricately
related to each other, said issues are herein discussed jointly as follows:

Contrary to the misrepresentation of complainants in the arbitral proceeding,

complainants were not illegally dismissed by herein Respondent KSKLSC. At the onset,
Respondent KSKLSC clarified that it has no intention to terminate the employment of
herein Complainants. In fact, it was also culled from the Decision that apart from
Complainants’ allegation that they were illegally dismissed on December 19, 2016 when
they informed not to report for work anymore, they did not name the particular person
who dismissed them, neither was it shown that he/she has the authority to dismiss
complainants. 4

To give emphasis, Complainants who failed to report to work without permission

from their Member-Supervisor, Ricardo Mendoza beginning December 19, 2016.
Respondent-KSKLSC. Complainants were afforded the due process specifically the “Twin
Notice Requirement”. The observance of Due Process and its evidence were duly
provided by herein Respondent-KSKLSC in its pleading.

As discussed, Respondent-KSKLSC out of its concern to the Complainants and as

part of its Cooperative’s Administrative Due Process among its members, herein
Respondent-KSKLSC issued the Notice of Invitation to Complainants on December 23,
2016 in which the Complainants refused to receive. A Notice of Conference was likewise
sent to the Complainants on January 5, 2017 and on January 12, 2017. All these Notices
pertains to the Complainants deliberate and willful refusal to report for work and
requiring them to submit their corresponding answer within the period prescribe by law.
But none of these notices were answered. These notices were refused to receive by
herein Complainants prompting herein Respondent KSKLSC to send the copies
individually to the complainants last known address.

It was only on January 17, 2017, that Respondent KSKLSC decided to terminate
the Complainants’ employment. In its Notice of Decision issued on January 17, 2017,
Respondent KSKLSC indicated therein all the circumstances pertaining to the
Complainants deliberate refusal to work with Respondent KSKLSC.

Complainants’ denial of receiving notices from Respondent KSKLSC has no basis.

All these notices were duly sent to the Complainants’ last known address after every
refusal of personal service. It was duly proven by the receipts if mail attached in
Respondent KSKLSC’s pleading. 5 The Honorable Labor Arbiter even affirmed to the
evidence adduced by herein Respondent-KSKLSC that these notices were duly sent. 6

Such willful and deliberate refusal to return to work without having to explain the
reason of its refusal constitutes misconduct or improper behavior that an employer could
subject its employee with corresponding disciplinary measure. In a long line of cases,
the Court held that a valid and lawful dismissal of an employee can be made by the
employer provided that both of the procedural and substantive due process were
observed. Procedural due process requires the observance of the so called “Twin Notice
Requirements” where the employee is given due opportunity to explain their side prior
the intended disciplinary measure. While the substantive due process prohibits the
termination of the employee except for a just cause or when authorized by the Labor
Code in Termination of Employment.

While every worker has its right to security of tenure, the management has also
the prerogative to dismiss its employee. Provided that it should be exercise without
abuse of discretion. Security of tenure is a constitutionally guaranteed right of an
employee. However, it does not mean perpetual employment for the employee. 7

4 Decision, page 10-11

5 Copy of Notices marked as Annex “L”, Annex “M-1” Annex “M-2” and Annex “N” in Respondent KSKLSC’s Position
paper
6 Decision, page 11
7 Phil. Village Hotel v. NLRC G.R. No. 105033 February 28, 1994
 Similarly, the Court ruled in the case of Rodolfo Gabuay et al. v. Oversea paper
Supply and/or Tan Lian Seng that the payment of Separation of Pay in the form of
Financial Assistance should not be given to those employees who were not dismissed,
either legally or illegally specially those who abandoned their jobs.

The Court goes further in saying that no room for the award of financial
assistance in the form of separation pay. To sustain the claim for separation pay under
the circumstances herein established would be to reward the petitioners for abandoning
their work.

“Even after the petitioners received notices from the

respondent corporation requiring them to report for work
and to explain their unauthorized absences and failure to
submit their updated bio-data, they still failed to report for
work. It can then be inferred that the petitioners had
abandoned their work. Indeed, the factors considered for
finding a valid abandonment are present in the case at bar:
the petitioners failure to report for work or absence
was without valid or justifiable cause, and their
refusal to report for work notwithstanding their
receipt of letters requiring them to return to work,
show their clear intention to sever the employer-
employee relationship.

Consistent with the finding that the petitioners abandoned

their work, the award of financial assistance in the
form of separation pay should be deleted. Separation
pay is defined as the amount that an employee
receives at the time of his severance and is designed
to provide the employee with the wherewithal during
the period that he is looking for another employment.

XXX

In some cases, it is awarded as a measure of social justice.

As we ruled in Philippine National Construction Corporation
v. NLRC, reiterating Philippine Long Distance Telephone Co.
v. NLRC. We hold that, henceforth, separation pay
should be allowed as a measure of social justice only
in those instances where the employee is validly
dismissed for causes other than serious misconduct
or those reflecting on his moral character. Where the
reason for the valid dismissal is, for example, habitual
intoxication or an offense involving moral turpitude, like
theft or illicit sexual relations with a fellow worker, the
employer may not be required to give the dismissed
employee separation pay, or financial assistance, or
whatever other name it is called, on the ground of social
justice. In the present case, the petitioners were not
dismissed, either legally or illegally; the petitioners
abandoned their jobs. They failed to return to work
despite the respondent’s directive requiring them to
do so. There is, thus, no room for the award of
financial assistance in the form of separation pay. To
 sustain the claim for separation pay under the
circumstances herein established would be to reward
the petitioners for abandoning their work. 8(Emphasis
Ours)

Culled from the Decision of the Honorable Labor Arbiter that Complainants failed
to prove the alleged illegal constructive dismissal since what was offered as evidence in
its pleading were mere allegations. Yet the Honorable Arbiter still granted the payment
of Separation Pay to the Complainants and declared that herein Respondent KSKLSC
failed to established the abandonment of work despite the deliberate refusal to work
without justifiable cause and upon observance of the due process required by law.

The Decision of the Labor Arbiter, reinstating Complainant Bajo as a regular

employee of Liberty is likewise erroneous. Respondent KSKLSC duly proven in its
pleading that Complainant had enjoyed the minimum wage rate, holiday, overtime and
premium pay, night shift differential, 13th month pay, 5-day service incentive leave,
paternity leave, SSS, Philhealth and Pag-IBIG, Security of Tenure, as well as the
Cooperative benefits to include medical and hospitalization, member financial program,
the savings and credit programs, interest on share capital and patronage refund.

The above-mentioned benefits were given only to those regular employees and
member-owners of Respondent KSKLSC. Herein Complainant Bajo exploited all these
benefits as duly proven by the bank advise with corresponding debit memos from the
issuing bank that those amounts were indeed deposited to the complainant’s account. 9
Having established with proof that Complainant Bajo is a regular employee and
member-owner of Respondent KSKLSC, the reinstatement of Complainant Bajo is bereft
of merit.

The Honorable Labor Arbiter also ruled that complainants may not be deemed to
have abandoned their work, and neither were they constructively dismissed by
respondents. It further stated and mentioned the ruling cited in the case of Leonardo v.
NLRC that in a case where the employee’s failure to work was occasioned neither by his
abandonment nor by termination, the burden of economic loss is not rightfully shifted
to the employer, each party must bear his or her own loss, thus placing them on equal.
10 With due respect, it is a grave error on the part of the Honorable Labor Arbiter to rule

that herein Complainants and Respondent KSKLSC should be place in equal footing
considering the observance of Respondent KSKLSC of the due process required by law.
T

It behooves this Honorable Commission, and the Honorable Labor Arbiter to

heedfully listen and give attention to the prayer of herein Respondent KSKLSC as the
amount involved in the payment of the Separation Pay will be from the Cooperatives
Capitalization and will have a substantial and prejudicial effect on the Respondent
KSKLSC not only as to its capitalization but also to the existing member-owners of the
KSKLSC. It will indeed be causing grave or irreparable damage or injury to Respondent
KSKLSC to release such amount despite following the required procedural due process
to those erring employees.

Verily, the Honorable Labor Arbiter committed serious errors in her findings of
facts when she rendered her decision granting the reinstatement of Bajo and payment
of Separation Pay to Monez, Porazo, Acuba Jr., Dacumos which if not corrected, would

8 Supra Note 1
9
Annex “O-1” and “O-2” of KSKLSC’s Position paper
10
Decision, page 11 of 14
cause grave and irreparable damage or injury to the Respondent KSKSLC.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of the

Honorable Commission to MODIFY OR PARTIALLY REVERSE the decision of the
Honorable Labor Arbiter and a NEW ONE be PROMUGATED holding the Respondent
KSKLSC free from the payment of Monetary Claims.

General reliefs are likewise prayed for.

August 25, 2017, Quezon City, Philippines

ARACELI B. GLORIA
Counsel for Respondent-Appellant, KSKLSC
70-B Starmobile Building Kapitolyo Pasig City
Tel No.: 637-7216
Roll No. 69656
IBP No. 0021766, 05/12/17 Bulacan
PTR No. 3160063, 06/06/17 Pasig City
MCLE Compliance No:. N.A.
(Admitted to the Bar on 2 June 2017)

The following received a copy of the foregoing pleading:

NESTOR BAJO ET AL
Complainants
______________________________

LIBERTY FLOUR MILLS INC.

Respondent
_____________________________

ASIAPRO MULTI-PURPOSE COOPERATIVE

Respondent
____________________________