Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. IV
Calamba City, Province of Laguna

EMELITA A. PARAYAN,
Complainant,

-versus- NLRC Case No. RABIV-09-25405-07-L

MERITLUX INDUSTRIES PHILS., INC.,

MR. NGAN YIM KWONG,
Respondents.
x-------------------------------------------------x

ROENA A. ROYALES, LILIBETH K. VIVO,

Complainants,

-versus- NLRC Case NO. RABIV-10-25550-07-L

MERITLUX INDUSTRIES PHILS., INC.,

MR. NGAN YIM KWONG,
Respondents.
x-------------------------------------------------x

GERONIMO B. TUIZA, JR.,

Complainant,

-versus- NLRC Case No. RABIV-10-25549-07-L

MERITLUX INDUSTRIES PHILS., INC.,

MR. NGAN YIM KWONG,
Respondents.
x-------------------------------------------------x

NOTICE OF APPEAL

Respondents, through the undersigned counsel, appeals to the decision

rendered by Honorable Labor Arbiter Robert A. Jerez on the above entitled
cases on January 30, 2009, a portion of which provides that:

(copy Wherefore….)

On the grounds as follows:

THE HONORABLE LABOR ARBITER COMMITTED SERIOUS
ERRORS IN HIS FINDINGS OF FACTS AND OR IN HIS
APPRECIATION THEREOF WHICH, IF NOT TIMELY CORRECTED,
WILL CAUSE GRAVE AND IRREPARABLE DAMAGE OR INJURY
TO APPELLANT

THE HO.NORABLE LABOR ARBITER COMMITTED SERIOUS

ERRORS IN X X X X X

Respectfully, submitted this 16th day of March 2009.

Calamba City, Laguna, Philippines

ATTY. CIRILO B. BAYONETA, JR.

Notice

The Labor Associate

Please include the foregoing motion in the calendar of the office for
consideration and determination on ______ or immediately upon receipt
whereof.

Atty. Cirilo B. Bayoneta, Jr.

Copy furnished:

Page 2 of 19
 MEMORANDUM OF APPEAL

RESPONDENTS-APPELLANTS, by the undersigned counsel, unto

this Honorable Commission, most respectfully file this Appeal from the
decision dated January 30, 2009 of the Honorable Labor Arbiter Robert A.
Jerez, the dispositive portion of which reads:

“WHEREFORE, premises considered, Respondents

Meritlux Industries Phils., Inc. and Mr. Ngan Yim Kwong
are DIRECTED to reinstate Complainants Parayan,
Royales, Vivo and Tuiza, Jr. to their respective former
positions without loss of seniority rights and privileges and
to pay them full back wages and other benefits as
consequence of their illegal dismissal. They are also
ORDERED to pay 1.) Complainants Vivo and Tuiza, Jr.
underpaid wages for three (3) years counted backwards
from their employment cessation, 2.) Complainant Tuiza Jr.
his unpaid wages for September 15 to 29, 2007 and his
thirteenth (13th) – month pay for 1996, and 3.) all
Complainants their moral damages of P40,000.00 each,
exemplary damages of P20,000.00 each and attorney’s fees
of ten percent (10%) of all their awarded claims.
xxx
SO ORDERED.”

A copy of the said decision is hereto attached as Annex “1”.

TIMELINESS OF THE APPEAL

Under Section 1, Rule VI of the Revised Rules of Procedure of the

National Labor Relations Commission, decisions, resolutions or orders of
the Labor Arbiter shall be final and executory unless appealed to the
Commission by any or both parties within ten (10) calendar days from
receipt thereof; xxx If the 10th xxx day, xxx falls on a Saturday, Sunday or

Page 3 of 19
holiday, the last day to perfect the appeal shall be the first working day
following such Saturday, Sunday or holiday.

The undersigned counsel received a copy of the foregoing decision on

6 March 2009. Thus, the respondents-appellants have until 16 March 2009,
within which to interpose an appeal from the said decision. The instant
appeal is being filed within the said reglementary period.

THE PARTIES

1. The Respondent-Appellant MERITLUX IND., PHILS. INC.

(Meritlux for brevity) is duly registered and operating under the laws of the
Republic of the Philippines with plant and office address at Warehouse
Corporate Park, Brgy. Malitlit, Sta. Rosa, Laguna. Respondent-Apellant.
MR. NGAN YIM KWONG is the warehouse manager of respondent-
appellant company. Both respondents-appellants may be served of summons
and other processes of this Honorable Commission through the undersigned
counsel's office address that is herein below indicated.

2. Complainant-appellees may be served of summons and

processes of this Honorable Commission through their counsel’s principal
business address at Room 204 Amberland Plaza Condo. Ortigas Center,
Pasig City.

ASSIGNMENT OF ERRORS

I. The Honorable Labor Arbiter committed serious error when

he found that “Complainants Parayan, Royales and Vivo were
constructively dismissed”.

II. The Honorable Labor Arbiter committed serious error when

he found that “Complainant Tuiza, Jr., was illegally
dismissed.”

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 III. The Honorable Labor Arbiter committed serious error when
he ordered the payment of alleged underpaid and unpaid
wages of Complainants Vivo and Tuiza and the award of moral
damages of exemplary damages and attorney’s fees in favor of
the complainants.

DISCUSSION AND ARGUMENT

The Honorable Labor Arbiter

committed serious error when he
found that “Complainants Parayan,
Royales and Vivo were constructively
dismissed”

At the outset, it is imperative for the respondents-appellants to point

out the serious errors in the finding of facts by the Honorable Labor Arbiter,
which if not corrected would cause grave or irreparable damage or injury to
the appellant.

COMPLAINANT PARAYAN WAS NOT CONSTRUCTIVELY

DISMISSED.

In the case of ELMER M. MENDOZA, vs. RURAL BANK OF

LUCBAN [G.R. No. 155421. July 7, 2004], the Supreme Court gave no
credence to petitioner’s unsubstantiated allegations of constructive
dismissal, to wit:

“On the other hand, petitioner has offered no

sufficient proof to support his allegations [of constructive
dismissal]. (Insertions supplied) Given no credence by

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 both lower tribunals was his bare and self-serving
statement that he had been positioned near the
comfort room, made to work without a table, and
given no work assignment. [Emphasis supplied] Purely
conjectural is his claim that the reshuffle of personnel
was a harassment in retaliation for an alleged falsification
case filed by his relatives against a public official. While
the rules of evidence prevailing in courts of law are not
controlling in proceedings before the NLRC, [Jarcia
Machine Shop and Auto Supply, Inc. v. NLRC, supra, p.
92] parties must nonetheless submit evidence to support
their contentions.

Likewise, here, records show that in order to remedy or provide a

solution to the problem created by complainant Parayan, management
deemed it a wise business decision to temporarily transfer her office table
out of the warehouse office to the place where she performs the critical
aspect of her daily work. Incidentally, her transfer also served as a solution
to the problem then at hand, the problem of having to accommodate another
worker of the warehouse that needs to have ready access with the computer
located inside the warehouse office by reason of the nature of her work.
Hence, the office table of complainant Parayan was transferred outside of
the warehouse office where she has been causing work disruption. In
accordance with the existing set-up and practice observed in the sister
companies of the respondent in China and Thailand, Parayan’s office table
was moved near her work station and beside the fabric inspection machine
that she regularly uses in inspecting clothing material samples. (See
Annexes "3" to “3-A” of respondents’ position paper as attachments for all
respondents in the complaint filed by complainant Parayan.)

The transfer was largely influenced by the set-up in the sister

companies of the respondent company in China and Thailand where the said

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set-up was proven to have translated to a higher level of production
efficiency. Hence, the transfer was intended by management to result in a
higher plant production efficiency level due to the fact that it previously
encountered low efficiency which resulted to losses during the first two
quarters of the year. (See Annexes "4" to “4-B” of respondents’ position
paper as attachments for all respondents in the complaint filed by
complainant Parayan.)

The management expects the unit of complainant Parayan to be more

efficient because of her transfer to the proper place where she performs her
daily task. She is expected to have close and effective supervision of her
subordinates on every detail of the work that they do everyday.

It is unexpected by management that complainant Parayan will

vehemently resent the transfer. She demanded from management to be given
of the following concessions: computer set, comfortable work place, among
others. (See Annexes "5" to “5-D of respondent’s position paper as
attachments for all respondents in the complaint filed by complainant
Parayan.

The management proceeded to carefully consider and study the

necessity of her demands viz-a-vie the efficient performance of her work.
(See Annex "6" of respondents’ position paper as attachment for all
respondents in the complaint filed by complainant Parayan.)

For several months after the transfer, the management observed her
work situation in her new place of work inside the company premises to be
more effective. In particular, management noted that the transfer to her new
place of work did not expose her to any unusual danger or to an increased
health risk, more than that of other workers in the company. The transfer of
the location of her office table neither place her in an inhumane condition,
nor put her in an embarrassing situation, nor made it impossible for her to
continue to perform her work in the company, among others. On the

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contrary, her unit appeared to have become more efficient after the transfer.

Management took special notice of Parayan's complaint about being

exposed to clothing material dust. However, management observed that all
workers in the area, as a matter of fact, all workers inside the factory are
regularly exposed to clothing material dust. This is because they happen to
be working in a garment manufacturing establishment. Nevertheless, the
management is aware of such fact and for which reason, it issues masks for
all workers to wear while working inside the company premises. The mask
issued by management is proven to be effective in the prevention of
inhalation by workers of clothing material dust.

After the transfer, Parayan continued to perform her work inside the
company and management did not see any particular problem that affected
only Parayan, in relation to the other workers of the company. That for
reasons known only to her and probably only on second thought, she filed
this instant complaint only on 10 September 2007.

During the mandatory conferences, respondents revealed the truth that

complainant Parayan was not dismissed from her work in the company and
that it was actually Parayan who abandoned her work in the company while
she was being investigated for violation of various company policies, rules
and regulations, including submission of falsified diploma amounting to
gross dishonesty. The company rules provide for the penalty of dismissal
from work for the commission of gross dishonesty alone.

COMPLAINANT ROYALES AND COMPLAINANT VIVO ARE NOT

CONSTRUCTIVELY DISMISSED FROM WORK BY RESPONDENT
COMPANY

Here, neither complainant Royales nor complainant Vivo has fully

substantiated their claim that respondent company stripped them of their
duties and functions. Rather, as shown by the evidence on record, (See

Page 8 of 19
Annexes “21” up to “23” of respondents’ position paper as attachments for
Complainant Royales for all respondents in the complaint filed by
complainants Royales and Vivo. See also Annexes “34” up to “34-B” of
respondents’ position paper as attachments for Complainant Vivo for all
respondents in the complaint filed by complainants Royales and Vivo) it was
in fact complainants Royales and Vivo who absconded and abandoned their
work.

On 27 November 2007 at around 1:05PM, complainant Royales

abandoned her post and left the respondent company premises without
having any permission from the management. (See Annex "21" of
respondents’ position paper as attachment for complainant Royales for all
respondents in the complaint filed by complainants Royales and Vivo). This
fact was not disputed by complainant Royales.

Under the law, material averment in the complaint shall be deemed

admitted when not specifically denied. [Section 1, Rule 9 of the Rules of
Court]

Since November 27, 2007 until to date, complainant Royales never

reported to the company. (See Annex "22" of respondents’ position paper as
attachment for complainant Royales for all respondents in the complaint
filed by complainants Royales and Vivo)

Beginning 31 October 2007 up to the present time, complainant Vivo

went AWOL. (See Annex "32" of respondents’ position paper as attachment
for complainant Vivo for all respondents in the complaint filed by
complainants Royales and Vivo)

Moreover, despite the several notices sent by respondent company to

complainants Vivo and Royales requiring them to return to work, both
complainants Royales and Vivo failed and or refused to do so.

Page 9 of 19
 Neither have they proved that respondent company has committed an
act of clear discrimination, insensitivity or disdain so unbearable that they
are left with no choice but to forego continued employment. Nothing in the
record shows that respondent company committed an act which amounted to
a dismissal in disguise. Evidence on record is devoid of any showing that
they were forced to quit their respective jobs because continued employment
is rendered impossible, unreasonable or unlikely by respondent company.
Neither were they demoted in rank nor made to suffer a diminution in pay by
respondent company.

In fact, records show that respondent company even gave complainant

Royales an on-the-job-training for the position of receiving warehouse
supervisor and several job promotions in recognition of her hardwork and
dedication to her work. (See Annexes "5", "6", "7", "9" and "9-A" of
respondents’ position paper as attachments for complainant Royales for all
respondents in the complaint filed by complainants Royales and Vivo).

Evidently, complainants' bare allegations of constructive dismissal

was uncorroborated by the evidence on record, hence, these allegations
cannot be given credence.

Moreover, as held in Fernando Go v. Court of Appeals, (G.R. No.

158922 May 28, 2004)s, [citing Globe Telecoms, Inc., et al. v. Florendo-
Flores, G.R. No. 150092, 27 September 2002, 390 SCRA 201], the Supreme
Court stated that:

"The failure of the petitioner to fully substantiate

his claim that the respondent stripped him of his duties
and functions is fatal to his present petition. xxx
Petitioner's bare allegations of constructive dismissal,
when uncorroborated by the evidence on record, cannot
be given credence."

Page 10 of 19
 Hence, contrary to complainants' bare allegations of constructive
dismissal, respondent company, on the other hand, have proven by
substantial evidence (see Annexes “21” up to “23” of respondents’ position
paper as attachments for Complainant Royales for all respondents in the
complaint filed by complainants Royales and Vivo. See also Annexes “34”
up to “34-B” of respondents’ position paper as attachments for Complainant
Vivo for all respondents in the complaint filed by complainants Royales and
Vivo) that in truth and in fact no constructive dismissal exists in this case.

THE EMPLOYMENT OF COMPLAINANT TUIZA WAS

TERMINATED IN ACCORDANCE WITH THE LAW.

In Pasamba v. NLRC [G.R. No. 168421, June 8, 2007], the court ruled
that:
“[T]he services of an employee hired on probationary
basis may be terminated when he or she fails to qualify as
a regular employee in accordance with reasonable
standards made known by the employer to the employee
at the time of his engagement. The law does not preclude
the employer from terminating the probationary
employment, if the employer finds that the probationary
employee is not qualified for regular employment. As
long as the termination was made for reasons provided
under Article 281 of the Labor Code before the
expiration of the six-month probationary period, the
employer is well within its rights to sever the employer-
employee relationship. A contrary interpretation would
contravene the clear meaning of the term “probationary”.
The law in protecting the rights of the laborer authorizes
neither the oppression nor the self-destruction of the
employer.” [Insertion supplied]

Page 11 of 19
 Complainant Tuiza was terminated from the service of the respondent
company for the reason that he failed to meet the company work standards
as shown by the result of his performance appraisal conducted on 19
September 2007. (See Exhibit 5 of respondents’ position paper as attachment
for all respondents in the complaint filed by complainant Tuiza)

COMPLAINANT TUIZA DID NOT BECOME A REGULAR

EMPLOYEE OF THE COMPANY

Tuiza’s former service to the company under a specific period of

contractual employment was terminated by reason of end of contract. The
contract was freely entered into by the parties and therefore, it has to be
respected and treated separately from his probationary employment with the
company.

In Philippine Daily Inquirer v. Leon Magtibay [G.R. No. 164532,

July 24, 2007], the Honorable Supreme Court upheld the findings of the
Labor Arbiter that the previous contractual employment of the respondent
therein is an independent contract. He also declared as binding the
stipulation in the contract specifying a fixed period of employment.
According to the Labor Arbiter, upon termination of the period stated
therein, the contractual employment was also effectively terminated,
implying that respondent was merely on a probationary status when his
services were terminated.

Here, Tuiza performed a menial task as helper during his contractual

employment while he performed the additional task of a data encoder during
his probationary employment. In Caparoso v. CA [G.R. No. 155505,
February 15, 2007], the court ruled:

“Regular employee is one who is engaged to

Page 12 of 19
 perform activities which are necessary and desirable in
the usual business or trade of the employer as against
those which are undertaken for a specific project or are
seasonal. Even in these latter cases, where such person
has rendered at least one year of service, regardless of the
nature of the activity performed or of whether it is
continuous or intermittent, the employment is considered
regular as long as the activity exists, it not being
indispensable that he be first issued a regular
appointment or be formally declared as such before
acquiring a regular status.

Here, complainant Tuiza’s total length of service to the company is

less than one (1) year. Hence, he has not acquired a regular status in the
company. Moreover, his failure to meet the company standards during his
probationary employment precluded him from becoming regular employee
of the company.

Granting without admitting and only for the sake of argument that
Tuiza performed work that is “necessary or desirable in the usual trade or
business of the employer, it does not preclude the fixing of employment for
a definite period of time.” [Caparoso v. CA, G.R. No. 155505, February 15,
2007]. Moreover, Tuiza has rendered only a total of eleven (11) months of
service with respondent company. Hence, it cannot be said that he has
become a regular employee.

Finally, it is the observation of respondents that the complainants are

keen on creating an atmosphere of antagonism and hate on the part of
respondents against them. To reiterate, these allegations of antagonisms that
complainants presented are unfounded and have no basis in fact. It is absurd
to think that respondent company, a foreign-owned multi-million
organization comprising of about 700 workers which has been in existence
for more than ten (10) years, would waste its time and resources just so it

Page 13 of 19
could antagonize these four (4) complainants. If anything respondent
company had been very lenient and considerate with these complainants to
the point that the latter think they have the management by the neck. In fact,
complainant Parayan, arrogantly claimed “"hindi nila ako kaya", referring to
the management.

The Honorable Labor Arbiter committed

serious error when he ordered the payment of
alleged underpaid and unpaid wages of
Complainants Vivo and Tuiza Complainant
Tuizaand and the award of moral damages of
exemplary damages and attorney’s fees in favor
of the complainants.

THE AWARD BY THE HONORABLE LABOR ARBITER OF

UNDERPAID WAGES IN FAVOR OF COMPLAINANTS VIVO AND
TUIZA HAS NO BASIS IN FACT AND IN LAW.

With respect to complainant Vivo’s allegation of underpayment of

her salary, the truth of the matter was that prior to 5 October 2007, the
existing minimum wage in Sta. Rosa, Laguna is P272 as per Wage Order
IVA-11. As stated by complainant Vivo in paragraph 17 of complainants’
position paper, she was being paid by respondent-appellant company a
salary rate of “P276.00 a day or P8,300.00 a month”. Clearly, her salary was
within the existing P272.00 minimum wage in the area. Hence, there is no
underpayment of salary to speak of in her case. (See Annexes “38” and “38-
A” of respondent-appellees’ Reply)

As for complainant Tuiza’s allegation of underpayment and non-

payment of wages, the truth of the matter is that as per Wage Order IVA-10,
the existing minimum wage in Sta. Rosa Laguna prior to 2 May 2007 is
P254.00. As stated by complainant Tuiza in paragraph 43 of complainants’
position paper, he was being paid by respondent-appellant company a salary

Page 14 of 19
rate of P254.00 a day. Thus, there is no underpayment of salary to speak of
in his case.

Therefore, from the foregoing, the award by the Honorable Labor

Arbiter of underpaid and unpaid wages in favor of complainants Vivo and
Tuiza has no basis in fact and in law.

Coming now to the propriety of the award of moral damages,

exemplary damages and attorney’s fees in favor of the complainant-
appellants, in the case of PEPSI COLA PRODUCTS PHILIPPINES, INC.
AND ERNESTO F. GOCHUICO vs. EMMANUEL V. SANTOS. [G.R. No.
165968, April 14, 2008], The Supreme Court ruled that:

“Finally, on the matter of attorney’s fees, we have

ruled that attorney’s fees may be awarded only when the
employee is illegally dismissed in bad faith and is
compelled to litigate or incur expenses to protect his
rights by reason of the unjustified acts of his employer. In
this case, the NLRC deleted the award of moral and
exemplary damages precisely because of the absence of
evidence that respondent’s suspension and eventual
dismissal were tainted with bad faith and malice.xxx”

Here, as already discussed, the allegations of constructive

dismissal by complainants Parayan, Vivo and Royales were unsubstantiated.
They likewise failed to show that respondent-appellants acted in bad faith.
Similarly, complainant Tuiza failed to prove that respondent-appellants
acted in bad faith in terminating his probationary employment for failure to
meet company-set standards made known to him at the time of his
engagement. Hence, the award by the Honorable Labor Arbiter of moral
damages, exemplary damages and attorney’s fees has likewise no basis in
law and in fact.

Page 15 of 19
 PRAYER

WHEREFORE, premises considered, respondents-appellants pray that

after due notice and hearing, the decision rendered by the Honorable Labor
Arbiter be set aside and to order the dismissal of the instant complaint for
lack of merit and/or for lack of cause of action.

And, on the counter-claim, to award payment of damages and

attorney's fees in favor of the respondent-appellants.

Other relief just and equitable under the premises are also prayed for.

Calamba City, Laguna.March 11, 2009.

ATTY. CIRILO B. BAYONETA, JR.

Counsel for the Respondents-Appellants

Law office:

Bayoneta & Associates

2nd Floor, BDO Bldg.,(formerly EPCI),
National High Way, Crossing-Calamba,
Calamba City 4027 Laguna

P.T.R. No. 4177890(2009)

I.B.P. No. 02950 Lifetime
Roll No. 38375
MCLE Compliance Certificate

Page 16 of 19
 No. II – 0000688; September 12, 2008

VERIFICATION AND CERTIFICATION

I, the undersigned, of legal age, Filipino, after having been sworn to

under the law depose and state that:

1. I am the HR Manager of respondent-appellant company in the

above-entitled case;

2. I have caused the preparation of this MEMORANDUM OF

APPEAL and have read the same, the contents of which are true and correct
based on my personal knowledge and on authentic records;

3. I further certify that: (a) I have not theretofore commenced any

other action or proceeding or filed any claim involving the same issues or
subject matter in any court, tribunal, or quasi-judicial agency and, to the best
of my knowledge, no such action or proceeding is pending therein; (c) that if
I should thereafter learn that similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or any other
tribunal or quasi-judicial agency, I undertake to report such fact within five
(5) days there from to the court or agency wherein the original pleading and
sworn certification contemplated herein have been filed.

IN WITNESS WHEREOF, I have hereunto set my hand this __ day of

March 2009 at Calamba City, Laguna, Philippines.

Rosalie M. Biscocho
Affiant

SUBSCRIBED AND SWORN TO BEFORE ME, THIS ___ DAY OF

MARCH 2009 AT CALAMBA CITY, LAGUNA, PHILIPPINES.

Page 17 of 19
 ATTY. CIRILO B. BAYONETA, JR.
NOTARY PUBLIC
COMMISSION VALID UNTIL:12-31-10
P.T.R. No. 4177890 Year: 2009
I.B.P. No. 02950 Lifetime

Doc No. __
Page No. __
Book No. XXVI
Series of 2009

NOTICE OF APPEAL

Republic of the Philippines

Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

GREETINGS:

Considering the urgency and non-litigious nature of the above

Memorandum of Appeal, please submit the same forthwith upon receipt for
the determination of the Honorable Commission.

ATTY. CIRILO B. BAYONETA, JR.

Counsel for the Respondents-Appellants

Law office:
Bayoneta & Associates
2nd Floor, BDO Bldg., (formerly EPCI),
National High Way, Crossing-Calamba,
Calamba City 4027 Laguna
P.T.R. No. 4177890 (2009)
I.B.P. No. 02950 Lifetime
Roll No. 38375
MCLE Compliance Certificate
No. II – 0000688; September 12, 2008

Copy Furnished:
Atty. Voltaire A. Balitaan
Room 204 Amberland Plaza Condo

Page 18 of 19
Ortigas Center, Pasig City

EXPLANATION

Copy of this Memorandum of Appeal was served by registered mail to

the above addressee due to distance, time constraint and lack of messenger.

ATTY. CIRILO B. BAYONETA, JR.

Page 19 of 19