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Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION Sub-Regional Arbitration Branch X Iligan

City ERNESTO D. VILLAMIL, SIMPLICIA SECUYA, RICARDO ABARQUEZ, AND LIZA ABARQUEZ, Complainants, -versusGREMAG MARKETING & GREGORIO C. MANTOHAC, JR., as represented by Atty. Dorothea Saligan- Basalo, Respondents. x------------------------/ NLRC RAB X-08-13375-12 NLRC RAB X-08-13377-12 NLRC RAB X-08-13373-12 NLRC RAB X-08-13377-12 For: Illegal Dismissal, Underpayment of Wages and Nonpayment of Benefits, and Damages

For: xxxx

REPLY
(To Respondent-Appellants Memorandum of Appeal) COMPLAINANT-APPELLEE, by counsel, and unto the Honorable Commission, respectfully states that:

Preliminary Statement 1. On the 19th of July 2013, Complainant-Appellee (Appellee for brevity) received a copy of Respondents-Appellants Memorandum of Appeal only, dated the 11th of July 2013. In their Memorandum of Appeal, Respondents-Appellants (Appellants for brevity) alleged the following grounds: a. The Honorable Labor Arbiter erred in her finding that there exists an employer-employee relationship. b. The Honorable Labor Arbiter made an oversimplified and unspecified breakdown of the computation of the monetary claims of appellee and that appellant had no idea how the figures were arrived at, thereby amounting to denial of due process.

c. The Honorable Labor Arbiter was unjust in ordering the payment of P909,956.57 to appellees considering that ever since he left for the United States there was no derivation of income from the business on respondents part. DISCUSSION The arguments and conclusions directed and taken against Appellants Memorandum of Appeal can be summarized as follows: As to the Procedural aspect. 1. The requisites for the perfection of an appeal under the 2011 NLRC rules of procedure were not complied with since;

As to the Memorandum of Appeal a. There was no Notice of Appeal filed by Appellants. b. There was no proof of payment of the required appeal fee and legal research fee. As to the Motion to Reduce Appeal Bond c. Financial difficulty is not a meritorious ground for the filing of the motion as declared by jurisprudence. d. The bond posted (P10, 000) is unreasonable. 2. The period for perfecting an appeal is not interrupted since the motion to reduce appeal bond is defective. All in all, since there is no perfection of an appeal, there is no appeal to speak of. As to the Substantive aspect. 4. 5. 6. Evidence shows an employer-employee relationship. Evidence shows proper computation and breakdown of the monetary award. The monetary award has a leg to stand on upon which appellant has to perform his obligation.

3.

I. THE ABSENCE OF A NOTICE OF APPEAL IS FATAL TO THE REGULARITY OF APPELLANTS APPEAL.

2. A cursory examination of appellants memorandum of appeal shows an immediate defect, an absence of a notice of appeal. In general, Appellate proceedings require a Notice of Appeal, Memorandum of Appeal and the filing of an Appeal bond. Appeals in the NRLC are no exception and proper compliance with these procedural requirements is a mandate excused only by compelling circumstances. Pertinently, no circumstance of such compelling nature exists as to appellant. II. 3. No proof of payment of the required appeal fee and legal research fee is presented. This fell short of what Rule VI, Sec.4 of the 2011 NLRC Rules of Procedure requires: SEC.4. REQUISITES FOR PERFECTING AN APPEAL. a) The appeal shall be (5) accompanied by (i) proof of payment of the required appeal fee and legal research fee. III. NO MERITORIOUS GROUND EXISTS AS TO THE FILING OF A MOTION TO REDUCE BOND. NO BOND NO APPEAL

4. Art. 223 of the Labor Code provides that in case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award. Appellant posted a cash bond, albeit, unreasonable in amount. An unreasonable bond is tantamount to no bond. The importance of an appeal bond cannot be over emphasized for courts have ruled that the word only in Art. 223 of the Labor Code make it perfectly clear that the lawmakers intended that the posting of the bond is the exclusive

means by which an employers appeal may be perfected.1 In short, No bond, no appeal. 5. The filing of a supersedeas bond, which is actually a security required from an appellant to ensure payment of the adjudged monetary award in case the appeal fails, is indispensable to the perfection of the appeal. We further held that the posting of a cash or surety bond for the perfection of an appeal is jurisdictional, without which the NLRC, as in this case, does not have the authority to review and revise the judgment of the labor arbiter. As a general rule, noncompliance with this legal requirement is fatal and has the effect of rendering the appealed judgment final and executory.2 6. Financial difficulty is not a sufficient ground for the grant of a motion to reduce appeal bond. This ruling can be deduced from the case of Emma Cordova, et al vs. Keysas Boutique (2005);
The respondents cannot be excused from making a substantial compliance with the bond requirement. The law does not require outright payment of the appealed monetary award, but only the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the NLRC or this Court, and not a mere bank certification which only states the total amount of deposit existing in such bank as of a certain date. The cash or surety bond will ensure that the award will be eventually paid in case the appeal fails. A mere bank certification of the type submitted by respondents will not. What respondents have to pay is a moderate and reasonable sum for premiums for such bond.3

IV. The 10,000 bond is unreasonable. An unreasonable bond is akin to absence of bond.

7. The amount of appeal bond posted by appellants is unreasonable in relation to the monetary award adjudged against them. This is diametrical to the purpose of an appeal bond. An Appeal bond was intended by the lawmakers as a safeguard to ensure that the employee can target properties of the employer on which he or she can execute upon in the event of a final, providential award against the employer4

1 2 3 4

Viron Transit vs. NLRC, G.R. No. 97357, March 18, 1992, 207 SCRA 339.

Ibid.
Cordova v. Alabaran, G.R. No. 156379, Sept. 16, 2005

Roxas, Vicente, Power of the NLRC to Reduce Bond http://ca.judiciary.gov.ph/index.php?action=mnuactual_contents&ap=j60210&p=y

V. The period for perfecting an appeal is not interrupted since the motion to reduce appeal bond is defective.

8. The SC Clarified the NLRC Rules of Procedure on Posting and Reduction of Bond in the case of Cesar V. Garcia v. KJ Commercial (2012) Significantly, the Rules of Procedure of the NLRC allows the filing of a motion to reduce bond subject to two conditions: (1) there is meritorious ground, and (2) a bond in a reasonable amount is posted. The filing of a motion to reduce bond and compliance with the two conditions stop the running of the period to perfect an appeal. Appellants failed to comply with these requirements. Reasonableness is a question of fact. A factual calibration of the evidence shows that the amount of 10,000 in relation to the total value of the monetary award is unreasonable.

VI. There is exists an employer-employee relationship between appellant and appellee.

9. The existence of an employer-employee relationship is an interplay of law and fact. In determining the existence of an employer-employee relationship, the following elements are considered: (1) the selection and engagement of the worker or the power to hire; (2) the power to dismiss; (3) the payment of wages by whatever means; and (4) the power to control the workers conduct, with the latter assuming primacy in the overall consideration. No particular form of proof is required to prove the existence of an employer-employee relationship. Any competent and relevant evidence may show the relationship5. The decision of the Honorable Labor Arbiter Beverly Selim-Misni is crystal clear and well-grounded; Control was directly exercised by respondent Dr. Mantohac himself when he took over the management of the familys business known as Magding Enterprises, then only over the copra-buying operation before he migrated to the United States on February 8, 2003. Thereafter, the said control was exercised by the overseer, Nancia Fernandez, who supervised all landholdings of the Manohac family, including Gremags

ibid

operation while complainant Abarquez merely acted purchaser/cashier of copra delivered to the bodega.

as

10. In Sevilla v. Court of Appeals, the Court observed the need to consider the existing economic conditions prevailing between the parties, in addition to the standard of right-of-control, to give a clearer picture in determining the existence of an employer-employee relationship based on an analysis of the totality of economic circumstances of the worker.6The use of this test could illumine the true relationship existing between complainant and respondent. 11. Under the economic reality test, the benchmark in analyzing whether employment relation exists between the parties is the economic dependence of the worker on his employer. That is, whether the worker is dependent on the alleged employer for his continued employment in the latters line of business. 12. Applying this test, if the putative employee is economically dependent on the putative employer for his continued employment in the latters line of business, there is employer-employee relationship between them.

VII A proper and thorough computation was made to substantiate the monetary award adjudged by the Honorable Labor Arbiter 13. Appellees position paper and the Honorable labor Arbiters decision clearly reflect the bases of the monetary award. There is no cogent reason to make a turnaround. Suffice it to say that this assignment of error is a last ditch effort to evade liability under our Labor laws and conformity to a mandate rendered on a well-grounded discretion and appreciation of the facts and laws applicable to this case. VIII. Absence of income is not enough a justification for refusal to comply with an obligation. 14. A monetary award has been adjudged on proper assessment of the facts and laws. The fact that no income was derived from the business is not a justification to renege from an obligation. Suffice it to say, there are other ways and means upon which an obligation may be complied with. The flow of income has no bearing on the compliance or non-compliance of an obligation.

G.R. No. L-41182-3 April 16, 1988

CONCLUSION 15. From the foregoing discussion, an appeal not perfected is an appeal not made. Moreover, the Honorable Labor Arbiter did not commit any grave abuse of discretion nor serious error in rendering the 15 May 2013 Decision. 16. Said decision is based on the evidence presented by both parties and in line with the applicable laws and jurisprudence. PRAYER WHEREFORE, premises considered, it is hereby respectfully prayed unto the Honorable commission that the instant appeal BE DISMISSED for lack of merit and for non-perfection. Other reliefs which are just and equitable are likewise prayed for. Done this 29th of July 2013, in Iligan City

QUIMCO, ABLANQUE & LACHICA LAW OFFICE


Counsel for the Complainant-Appellees Room 202 Monsanto Bldg., Don Pedro Celdran St. Rosario Heights, Tubod, Iligan City By:

Kerth Jossef M. Ablanque


Counsel for the Complainant-Appellees IBP No. PTR No.

Copy furnished: Hon. Labor Arbiter Beverly Selim-Musni National Labor Relations Commission Sub-Regional Arbitration Branch X Iligan City

Atty. Dorothea Saligan-Basalo Poblacion, Baroy, Lanao del Norte

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