Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATION COMMISSION
BOARD OF COMMISSIONERS
National Capital Region
Quezon City

REYMILES TRANSPORT
TAXI/REYNALDO COMIA,
Petitioner,

- versus -

NLRC NCR CASE NO. 07-08838-14

ERLANDO LIMBO SARMIENTO,

and HON. REMEDIOS TIRADCAPINIG/LABOR ARBITER
Respondents.
x-----------------------------------x

PETITION FOR EXTRAORDINARY REMEDY UNDER RULE

XII OF 2011 NLRC RULES OF PROCEDURE
[With Urgent Prayer for the Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction]
PETITIONER, through counsel, unto this Honorable
Commission, respectfully submits this Petition in accordance
with the 2011 NLRC Rules of Procedure and further states
that:

PREFATORY STATEMENT

The policy of social justice is not intended to countenance

wrongdoing

simply

because

it

is

committed

by

the

underprivileged. (Tirazona vs. Phil. Eds Techno-Service [PET

INC.], G.R. No. 169712, January 20 2009). Social justice is not
served by upholding the interest of the employees in disregard
of the right of the company. Social justice ceases to be an
effective instrument for the equalization of the social and
economic forces by the State when it is used to shield
wrongdoing. (Jamer v. NLRC, 278 SCRA 632 [1997].)

Thus, in the interest of justice and equity, respondent

appeals to this Honorable Commission to modify and annul
the Decision dated May 04, 2015 and Writ of Execution dated
August 12, 2015 rendered by the Labor Arbiter.

THE CASE
This is a Petition for Extraordinary Remedy pursuant to
Rule XII of the 2011 NLRC Rules of Procedure against the
Decision dated May 04, 2015 and Writ of Execution dated
August 12, 2015 promulgated by the Labor Arbiter in NLRC
NCR CASE NO. 07-08838-14 entitled Erlando L. Sarmiento vs.
Remiles Transport Taxi, et al. Certified true copies of the
Decision and the Writ of execution are hereto attached as
Annexes A and B.

THE PARTIES

Petitioner REYMILES TRANSPORT, INC. is a corporation

engaged in the operation of taxi transportation services and
duly registered under Philippine laws with SEC Registration
No. CS22004416962 herein represented by its President
Reynaldo V. Comia, Filipino, of legal age, married and with
business address at 68 Cenacle Drive, Sanville 5 Subdivision,
Culiat, Tandang Sora, Quezon City where he may be served
with Decision, Notices, Order, Resolution and other processes
of this Honorable Commission.
Private Respondent Erlando Limbo Sarmiento is also of
legal age, Filipino and residing at Liro Homes, Sampaloc,
Tanay, Rizal, where he may be served with Decision, notices,
order, resolution and other processes of this Honorable
Commission.

Public

Respondent,

the

Honorable

Labor

Arbiter

Remedios Tirad-Capinig is also of legal age, Filipino, with

official address at Rm. 203, 2nd Floor, PPSTA Building, Banawe
Street Cor. Quezon Avenue, Quezon City where she may be
served with Decision, notices, order, resolution and other
processes of this Honorable Commission.

TIMELINESS OF THE PETITION

Petitioner received a copy of the Writ of Execution dated

August 12, 2015 on ____________. Hence, Petitioner has until
_______________ to file this instant petition.

RELEVANT ANTECEDENT FACTS

1. Sometime in January of 2009, Respondent Erlando
Limbo Sarmiento was personally endorsed by the Petitioners
stepbrother Oliver Ian Loyola and was subsequently employed
as a taxi driver of REYMILES TRANSPORT, INC. (hereinafter
referred to as the Company for brevity). Accordingly, after
Respondent was duly informed of the Company Policies as a
part of his orientation, he was assigned with a taxi unit
bearing plate number UVR 472.

2. In the morning of July 07, 2014, the taxi unit assigned

to Respondent was at the Company garage since the unit was
under a number-coding scheme of the MMDA. Petitioner
readily noticed that the taxi unit was very dirty; the new seat
covers were damaged and with fruit stains.

3. Upon further investigation conducted by Petitioner, it

was confirmed that Respondent remains adamant in defying
the Company policy by utilizing the taxi unit assigned in his
business as a fruit and vegetable dealer. As such, he
transports heavy loads of varieties of fruits and vegetables,
which he purchases or acquires from Tanay, Rizal and brings

to Quezon City particularly at the Company garage before

delivery to the actual customers.

4. Even prior to July 07, 2014, Petitioner already verbally

advised and warned the respondent, about four (4) times, not
to use the assigned taxicab to transport different vegetables
and fruits in season including jackfruits, bananas, camotengkahoy, and coconuts etc. Petitioner even advised respondent
to hire a service or delivery van for his goods instead of using
the Company assigned taxi for his own interest.

5.

Thus,

upon

seeing

the

said

taxi

assigned

to

respondent dirty and with unpleasant smell that Monday

morning,

Petitioner

instructed

his

Secretary

to

call

Respondent for a meeting to ask and confront him once again

why the taxi which was supposed to be for transporting
passengers was being utilized for his own interest delivering
fruits and vegetables.

6.

Instead of talking to Petitioner, Respondent refused

and insists that there is no need to talk. Respondent

deliberately avoided Petitioner and only comes to the garage
when Petitioner is not around, evading any chance to meet and
talk. Thus, Petitioner instructed his Secretary to compute and
subsequently release to Respondent any money or funds owing
to the latter.

7. Surprisingly, Petitioner learned that Respondent filed a

complaint before the Barangay for allegedly dismissing him
and subsequently filed a case for illegal termination before the
Labor Arbiter.

8. In a Decision dated May 04, 2015, the Honorable

Labor Arbiter held that Respondent Erlando Limbo Sarmiento
was illegally dismissed. The dispositive portion of the Decision
reads:

WHEREFORE, premises considered, judgment is

hereby rendered ORDERING respondent REYMILES
TRANSPORT TAXI and REYNALDO COMIA to pay
SOLIDARILY to COMPLAINANT the total amount of
ONE HUNDRED THREE THOUSAND THREE
HUNDRED FIFTY-SIX PESOS (P103,356.00), as
follows:
1.

SEPARATION PAY---------- P87,360.00

2.

ACCUMULATED CASH BOND and

PONDO------------------------ P 6,600.00

3.

10% ATTORNEYS FEES----P 9,396.00

TOTAL -------- P 103, 356.00

SO ORDERED.
12. The Honorable Labor Arbiter then issued the Writ of
Execution dated August 12, 2015.

13. Hence, this Petition for Extraordinary Remedy

pursuant to Rule XII of the 2011 NLRC Rules of Procedure is
filed before the Honorable Commission.

ISSUES

I.

WHETHER THE RESPONDENT LABOR

ARBITER

ERRED

IN

FINDING

THAT

RESPONDENT ERLANDO LIMBO SARMIENTO

WAS ILLEGALY DISMISSED AND THE FACT
OF HIS DISMISSAL WAS ESTABLISHED.

II.

WHETHER

RESPONDENT

ERLANDO

LIMBO SARMIENTO WAS CONSTRUCTIVELY

DISMISSED

III.

WHETHER THE ACTS OF RESPONDENT

ERLANDO LIMBO SARMIENTO CONSTITUTE

A JUST CAUSE FOR TERMINATION UNDER
ARTICLE 283 OF THE LABOR CODE

GROUNDS IN SUPPORT OF THE PETITION

I. The Respondent Labor Arbiter committed an
abuse of discretion when it ruled that Respondent
was illegally or constructively dismissed and that
the fact of dismissal was established.

II. There are serious errors in the findings of facts,

which, if not corrected would cause grave or
irreparable damage or injury to the Petitioner.

III. Question of law such as whether the act of

Respondent who repeatedly used the taxi unit
owned by the Petitioner constitute a ground for
dismissal.

IV.

The

Order

management

undermines

prerogative

over

the
his

Petitioners
business

operation

GROUNDS IN SUPPORT OF THE APPLICATION FOR

TEMPORARY RESTRAINING ORDER AND/OR WRIT OF
PRELIMINARY INJUNCTION
I. Petitioner has a clear legal right entitled to
protection by way of an injunctive writ;

II. Petitioner stands to suffer grave and irreparable

injury if an injunctive writ is not issued, thus, there
is an urgent need to immediately restrain Public
Respondent Labor Arbiter from enforcing the Writ of
Execution dated August 12, 2015

DISCUSSION
I. The act of Petitioner in
Disciplining Respondent is a
Management Prerogative; Taxi
drivers should only use the unit
assigned for transportation of
persons, not delivery of goods.
While the law is solicitous of the welfare of employees, it
must also protect the right of an employer to exercise what are
clearly management prerogatives. The free will of management
to conduct its own business affairs to achieve its purpose
cannot

be denied.(Bisig Manggagawa Sa Tryco and/or

Francisco Suquig, as Union President, et al. v. National Labor

Relations

Commision,

Tryco

Pharma

Corporation,

and/or

Wilfredo C. Rivera, G.R. No. 151309, October 15, 2008).

Under the doctrine of management prerogative, every

employer has the inherent right, to regulate, according to his
own discretion and judgment all aspects of employment,
including hiring, work assignments, working methods, the
time, place and manner of work, work supervision, transfer of
employees, lay-off of workers and discipline, dismissal and

recall of employees. Employees are not excused from complying

with valid Company policies and reasonable regulations for
their governance and guidance. (Rural Branch of Cantilan Inc.
vs. Julve, 517 SCRA 17)

Similarly, Labor laws discourage interference with an

employers judgment in the conduct of his business. (Tinio vs.
CA, 524 SCRA 533)

Petitioner has the right to manage the business operations

and to ensure that the employees follow certain Company
policies. In the business of taxi operations, it is but a usual
practice to use the unit for transportation only, furthermore
the taxi driver should see to it that the unit is clean for the
benefit and convenience of the passengers.

Petitioner already cited, warned and reminded Respondent

not to use the taxi unit for delivering fruits and vegetables
since this will damage the unit assigned and thus will affect
the profitability of business.

Petitioner

exercised

his

disciplining

authority

over

respondent in good faith and without intention to circumvent

any Labor Laws. Public Respondent failed to consider the facts
of this case and simply relied on the allegations of Respondent
Sarmiento. For several times, Petitioner insisted to talk with
the Respondent and even went to the extent of personally

going to where the Respondent resides, but it is the latter who

refused and instead, told his other co-employees that he will
just resign rather than to talk and make amends with
Petitioner.

Contrary to Private Respondents allegation of being

evicted, The Honorable Public Respondent failed to consider
the fact that Petitioner, out of his generosity, allowed Private
Respondent together with his wife to use the company
premises as their sleeping quarters for free, hence there could
be no unlawful eviction and Petitioner never asked Respondent
to leave, it was the latter who voluntarily left and refused to
talk.

Respondent alleges in his position paper that the cleaning

of taxi unit is only a matter of informing the in-house car wash
personnel to clean the vehicle and hence should not be
commensurate to dismissal or disciplinary action. This is
erroneous. In the business of transportation such as operating
a taxi, it is essential to instill discipline over the drivers;
otherwise the act of using the taxi unit assigned for other
purposes and returning the same dirty will be a common
practice and thus affect Petitioners management authority
over the employees and the enterprise as a consequence.

II. Respondent was neither

illegally
terminated
nor

constructively
the Petitioner;

dismissed

by

Contrary to Public Respondents findings, Respondent

Sarmiento failed to establish by substantial evidence the fact
of his dismissal. Petitioner did not dismiss Respondent
Sarmiento, in fact, for several instances it is the Petitioner who
willingly tried to talk with the Respondent but the latter
refused to show up and instead went ahead to file this case for
illegal dismissal, thus, Respondent voluntarily severed his ties
with the Company.

Voluntary resignation is defined as the act of an employee,

who finds himself in a situation in which he believes that
personal reasons cannot be sacrificed in favor of the exigency
of the service, thus he has no other choice but to disassociate
himself from his employment (Alfaro v. CA, G.R. No. 140812,
August 28, 2001)

In the present case, Respondent Sarmiento, for whatever

personal reasons for his refusal to talk with and persistently
hiding from petitioner after being repeatedly warned and
reprimanded for using the assigned taxi unit in his delivery
business, showed his intention to terminate his employment.

In a case, it was held that An employee may be deemed to

have resigned from his position, and such resignation may be
accepted and made effective by the management, although the

employee

did

not

mention

the

word

resign

and/or

resignation. (Philippines Today, Inc., et al v. NLRC, G.R. No.

112965, January 30, 1997)

Thus,

despite

Respondent

absence

Sarmiento,

his

of

any

formal

notice

and

character

conduct

from
as

manifested by his refusal to talk with Petitioner after

repeatedly committed company violations and his refusal to
show up constitute voluntary resignation.

Public

Respondent

also

Respondent

was

employment.

Respondents

impossible,

erred

constructively

unreasonable,

when

it

ruled

that

dismissed

from

his

employment
or

was never

unlikely,

no

made

demotion,

insensibility, or disdain was committed by Petitioner whether

before or after the incident.

Petitioner, as a taxi operator, only required Respondent to

stop using the assigned taxi unit for his vegetable and fruit
delivery which was reasonable under the circumstances since
Petitioner

is

engaged

in

the

business

of

transporting

passengers and not of goods, to Petitioners disappointment,

Respondent cannot even afford to return the taxi unit clean
and sanitary after his duty which is a common practice after
allowing him to use Company property.

Petitioners act of trying to reach and talk with the

Respondent hardly qualifies as constructive dismissal and no
dismissal in fact took place, instead, it is the Respondent who
repeatedly failed to settle his violations and choose to
voluntarily resigned.

III. The Honorable Labor

Arbiter erred in ruling that
the acts of Respondent do
not constitute just cause for
termination.
The just causes for termination of employment are
enumerated in Article 282 of the Labor Code, viz.:

Art. 282. Termination by employer An

employer may terminate an employment for any
of the following causes:
1. Serious
misconduct
or
willful
disobedience by the employee of the
lawful orders of his employer or
representative in connection with his
work;
2. Gross and habitual neglect by the
employee of his duties;
3. Fraud or willful breach
employee of his duties;

by

the

4. Commission of a crime or offense by

the employee against the person of his
employer or any immediate member of

his family or his

representatives; and

duly

authorized

5. Other causes analogous to

foregoing. (Emphasis supplied)

the

In the case at hand, Respondents acts constitutes just

cause for termination.

Misconduct has been defined as improper or wrong

conduct. It is the transgression of some established and
definite rule of action, a forbidden act, a dereliction of duty,
willful in character, and implies wrongful intent and not mere
error in judgment. (Pastor Austira v. NLRC, 312 SCRA 410
[1999]).

Thus in order to constitute Serious misconduct, it has to

be (a) Serious (b) Related to the performance of the employees
duties (c) shown that the employee has become unfit to
continue working for the employer.

Respondents act of repeatedly using company property for

self interest and worse, returning the same unfit for normal
business use, dirty and full of fruit stains is considered
serious misconduct. It can only be concluded that Respondent
has become unfit to continue working for the Petitioner.

In a case, it was held that An employee cannot serve

himself and his employer at the same time all at the expense

of the latter. It would be unfair to compensate Private

Respondent who does not devote his time and effort to his
employer. (Pepsi-Cola Distributors of the Philippines, Inc. v.
NLRC, 272 SCRA 267 [1997]).

Thus, the act of using the taxi unit assigned for other
purposes such as fruit and vegetable delivery at the expense
and detriment of the Petitioner should constitute a just cause
for termination. Respondent should not use Petitioners
property and time for personal interest.

Furthermore, Every employee is charged with the implicit

duty of caring for the employers property, Respondents act
showed that he could not even be trusted to at least return
and use the taxi unit clean and without damages save for
ordinary wear and tear.

To emphasize, it would be a dangerous doctrine indeed to

allow

employees

regulations,

to

refuse

policies and

to

comply

with

procedures laid

rules

down

by

and
the

employer. Petitioner had already cited and warned Respondent

four (4) times for violating company rules.

In a case, it was held that where the employee has been

found to have repeatedly incurred several suspensions or
warnings on account of violations of company rules and

regulations, the law warrants their dismissal as it is akin to

habitual delinquency. (Villeno v. NLRC, 251 SCRA 494 [1995]).

Therefore, contrary to the Public Respondents ruling, it is

clear that aside from the absence of the fact of dismissal,
Respondent Sarmientos acts are just causes for terminating
his employment under the Labor Code.

ALLEGATIONS IN SUPPORT OF THE APPLICATION FOR

TEMPORARY RESTRAINING ORDER AND/OR WRIT OF
PRELIMINARY INJUNCTION

Petitioner adopts and repleads, by reference, all the

foregoing allegations in support of her application for the
issuance of TRO and/or a writ of Preliminary injunction, and
further alleges the following grounds:

I. Petitioner has a clear legal

right entitled to protection by
way of an injunctive writ;
A writ of preliminary injunction may be issued only
upon clear showing of an actual existing right to be protected
during the pendency of the principal action. The twin
requirements of a valid injunction are the existence of a right
and its actual or threatened violations. Thus, to be entitled to
an injunctive writ, the right to be protected and the violation
against that right must be shown. A writ of preliminary
injunction may be issued only upon clear showing of an actual

existing right to be protected during the pendency of the

principal action. (Equitable PCI Bank, Inc. vs. OJ-Mark Trading,
Inc. and Spouses Oscar and Evangeline Martinez G.R. No.
165950 August 11, 2010).

Private Respondent Sarmientos unwarranted filing of an

illegal dismissal case resulting to the issuance of a writ of
execution will cause great damage over Petitioners business
and

Properties.

Thus,

Petitioner,

as

the

Managing

Officer/President of Reymiles Transport, Inc. has a clear legal

right and that he has an interest in protecting the Business
against unmeritorious cases filed by irresponsible employees
which can only be preserved during the pendency of this
petition if an injunctive writ is issued by the Honorable
Commission. A clear legal right means one clearly founded
on law or is enforceable as a matter of law.

II. Petitioner stands to suffer

grave and irreparable injury
if an injunctive writ is not
issued, thus, there is an
urgent need to immediately
restrain Public Respondent
Labor Arbiter from enforcing
the Writ of Execution dated
August 12, 2015
Damages are irreparable within the meaning of the rule
relative to the issuance of injunction where there is no
standard by which their amount can be measured with

reasonable accuracy. "An irreparable injury which a court of

equity will enjoin includes that degree of wrong of a repeated
and continuing kind which produce hurt, inconvenience, or
damage that can be estimated only by conjecture, and not by
any accurate standard of measurement." An irreparable injury
to authorize an injunction consists of a serious charge of, or is
destructive to, the property it affects, either physically or in
the character in which it has been held and enjoined, or when
the property has some peculiar quality or use, so that its
pecuniary value will not fairly recompense the owner of the
loss thereof. (The Social Security Commission vs. The Hon.
Judge Froilan Bayona, et al. G.R. No. L-13555 May 30, 1962)

Therefore,

unless

restrained

by

this

Honorable

Commission, the acts of Public Respondent Labor Arbiter

would paralyze the business operations of Petitioner for being
made to pay against the unfounded claims of the Private
Respondent while it was clearly discussed that Respondent
Sarmiento was never dismissed from his employment as a taxi
driver

but

voluntary

resigned

after

repeatedly

violated

company rules and policies.

PRAYER
WHEREFORE,

premises

considered,

it

respectfully prayed of this Honorable Commission to:

is

most

1. REVIEW, REVERSE, NULLIFY AND SET ASIDE the

Decision dated May 04, 2015 and Writ of Execution dated
August 12, 2015 promulgated by the Honorable Labor Arbiter.

2. Immediately ISSUE a Temporary Restraining Order

and/or

Writ

of

Preliminary

Injunction

ENJOINING

the

Honorable Labor Arbiter in enforcing the Writ of Execution

dated August 12, 2015.

3. Order the Private Respondent to pay Attorneys fees in

the amount of One Hundred Thousand (PHP 100,000) Pesos
for compelling the Petitioner to hire the services of a lawyer in
defending himself for this unwarranted suit.

3. Order the Private Respondent to pay damages in the

amount of Fifty Thousand (PHP 50,000) Pesos as Moral
Damages.

3. Other just and equitable reliefs are likewise prayed for.

Quezon City, ___ September 2015.

Respectfully submitted

REYMILES TRANSPORT, INC.

REYNALDO V. COMIA
Petitioner
By:

ATTY. JAIRUS B. RUBIO

Counsel for Petitioner
Lot 4 Block 4, Crestwood
Subdivision, Brgy. San Luis,
Antipolo City, Rizal
Roll No. 64701
IBP No. 1005646
Quezon City Chapter
MCLE Exempt

Copy furnished with explanation:

ATTY. GLENN A REMIGIO, JR.

Counsel for the Private Respondent
DE GUZMAN & REMIGIO LAW AND
CONSULTING FIRM
Unit 302 Prince David Condominium
305 Katipunan Ave., Loyola Heights, Quezon City
Your Honor, copy of this pleading is sent to the other party
through registered mail due to distance and lack of personnel
to effect personal service. Thank you.

ATTY. JAIRUS B. RUBIO

Counsel for Petitioner

Republic of the Philippines)

_______________________ ) S.S.

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, REYNALDO V. COMIA, of legal age, Filipino, married

and with business address at 68 Cenacle Drive, Sanville 5
Subdivision, Culiat, Tandang Sora, Quezon City, after having
been duly sworn in accordance with law, hereby depose and
state:

1. That I am the President of REYMILES TRANSPORT,

INC., who is authorized to represent the Petitioner in the
instant case;

2. That I have caused the preparation of the foregoing

Petition for Extraordinary Remedy under rule XII of 2011 the
NLRC rules of procedure

3. That I have read and understood all the allegations

therein and the same are true and correct to my personal
knowledge and/or based on authentic records;

4. That I have not commenced any similar case or action

before the Supreme Court, Court of Appeals, all other lower
courts, or administrative tribunals and that there is no similar
case or action pending in the Supreme Court, Court of
Appeals, all other lower courts, or administrative tribunals;
and that should I learn thereafter that a similar case or action

is pending in the said courts or bodies, I hereby bound myself

to notify this Honorable Commission within five (5) days from
notice therefrom.

IN WITNESS WHEREOF, I have hereunto affixed my

signature

this

____

day

of

December

2013

at

_____________________.

REYNALDO V. COMIA
Affiant

SUBSCRIBED AND SWORN to before me this ____ day of

______________

2015

exhibited

me

to

at
his

_______________________,
____________________

affiant

issued

_________________________ at ________________________.

NOTARY PUBLIC

Doc. No. ______;

Page No. ______;
Book No.______;
Series of 20____.

on