Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region, Quezon City
FIRST DIVISION
RAQUEL S. QUILLOSA
Complainant-Appellant.
NLRC LAC CASE NO. 01-000247-15
-versus- NCR CASE NO. 08-09585-14
Hon. Remedios Marcos
SJ GAS AND APPLIANCE CENTER, INC.
CORAZON SAN JUAN ./ RONALD VILLANUEVA
Respondents-Appellees.
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MOTION FOR RECONSIDERATION
WITH MOTION TO INHIBIT
COMPLAINANT, through counsel and unto the Honorable Commission, most
respectfully aver as follows:
TIMELINESS OF THE MOTION
This is a Motion for Reconsideration of the DECISION of the Honorable
Commission dated March 31, 2015. The Decision was received by the undersigned
counsel on April 16, 2015, giving the complainant until April 26, 2015 (Sunday) to file
this motion in conformity with the 2011 NLRC Rules of Procedure.
GROUNDS FOR THE MOTION
In the aforesaid Decision, the Honorable Commission dismissed
complainant’s appeal and partially granted respondent’s appeal by deleting the
award for SILP. With all due respect, the aforesaid Decision IGNORES one of the
FUNDAMENTAL PILLARS of a labor complaint that “if doubt exists between the
evidence presented by the employer and the employee, the scales of justice must be
tilted in favor of the latter (employee)” (CESAR C. LIRIO vs. WILMER D. GENOVIA
( G.R. No. 169757, November 23, 2011)
As explained by the High Court in the recent case of PCL Shipping
Philippines, Inc. v. NLRC, G.R. No. 153031, December 14, 2006, 511 SCRA 44:
In carrying out and interpreting the Labor Code's provisions and
implementing regulations, the employee's welfare should be the primary and
paramount consideration. This kind of interpretation gives meaning and
substance to the liberal and compassionate spirit of the law as embodied in
Article 4 of the Labor Code (which provides that "[a]ll doubts in the
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implementation and interpretation of the provisions of [the Labor Code],
including its implementing rules and regulations, shall be resolved in favor of
labor") and Article 1702 of the Civil Code (which provides that "[i]n case of
doubt, all labor legislation and all labor contracts shall be construed in favor of
the safety and decent living for the laborer”)
Hence, this timely motion for reconsideration.
COMPLAINANT WAS ILLEGALLY DISMISSED
In the decision, the Commission ruled that: “it agrees with the finding of the
labor arbiter that there was no fact of dismissal for the following reasons
First, complainant averred that she was dismissed illegally on 30 April
2014 but she had been reporting for work until July xxx
Second, xxx there is no evidence that complainant was in fact
dismissed. No termination letter was presented by complainant.
Third, respondents presented a letter requiring complainant to report
back to work which she refused to receive xxx. This refusal to receive xxx
bolsters the allegation of respondents that it was complainant who decided to
stop going to work.”
The foregoing findings of the Honorable Commission are contrary to the
evidence on record and prevailing jurisprudence.
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 FILING A COMPLAINT FOR
UNDERPAYMENT OF SALARY 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.
With regard to the first reason proffered by the Commission, 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
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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.
With regard to the second reason, it must be emphasized that the facts of the
case clearly show that the complainant was CONSTRUCTIVELY dismissed by the
respondents. 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
(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
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the employee that it could foreclose any choice by him except to forego his
continued employment. xxx”
Finally, with regard to the third reason, the Commission agreed also with the
respondent’s assertion that:
26. The Complainant simply did not show up for work. Thus, the
Complainant abandoned her work. (page 8 thereof)
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.
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 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
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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.
PRAYER
WHEREFORE, premises considered, it is respectfully prayed that Hon.
Commissioner Romeo Go to inhibit himself from further reviewing the case and be
re-raffled to the remaining commissioners; and thereafter 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, April 24, 2015
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 0560706 1-5-15 QC / MCLE IV - 0018064
COPY FURNISHED by courier due to lack of personnel to effect personal service:
ATTY. ARCHIESYL S. TORRES
2105 ROBINSONS EQUITABLE TOWER
4 ADB AVE. ORTIGAS CENTER, PASIG CITY
